
    Willie James WRIGHT, alias, v. STATE.
    3 Div. 418.
    Court of Criminal Appeals of Alabama.
    Feb. 17, 1976.
    Rehearing Denied March 16, 1976.
    William J. Fuller, Jr., Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and G. Daniel Evans, Asst. Atty. Gen., Montgomery, for the State.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

Appellant-Defendant, an indigent below and here, was indicted for carnally knowing, or abusing in an attempt to carnally know, a girl under twelve years of age. The jury, on defendant’s plea of not guilty, and not guilty by reason of insanity, found him guilty and fixed punishment at life imprisonment. The same appointed counsel represented defendant below and represents him here.

We do not think it necessary to parade in this opinion any of the brutal facts concerning the alleged attack. Suffice it to say, the evidence for defendant, including his own, was largely addressed to defendant’s plea of not guilty by reason of insanity. The State’s evidence tended to show that defendant committed the offense after picking the victim up in his automobile while she was on a sidewalk, and taking her to an isolated area. The controverted issue centered around defendant’s sanity vel non at the time, and when he made an alleged confession to the officers.

I

Be that as it may, one contention of error is the form and substance of the jury’s verdict, which reads:

“We the jury find the defendant guilty and fix punishment at life in the penitentiary.”

An asserted ground in defendant’s motion for a new trial, which was overruled, is that neither the verdict nor the judgment entry specified “What the defendant was found guilty of, and therefore void, as a matter of law . . . .”

We are not in accord with this insistence as here argued. Justice Brickell, speaking for the Supreme Court in Blount v. State, 49 Ala. 381(2), observed:

“The verdict was responsive to the issue, ascertained and declared the guilt of the appellants, and authorized the judgment rendered. That the words ‘as charged in the bill of indictment,’ or words of similar import, are not added to the finding of guilty, does not render the verdict incomplete. The law supplied them by referring the finding to the indictment, and the offence therein charged. State v. Jones, 5 Ala. 666.”

Likewise, this Court held in Baldwin v. State, 27 Ala.App. 259, 170 So. 349(2), that a verdict finding the defendant guilty and fixing his punishment at ten years imprisonment in the State penitentiary was amply definite.

II

It appears from the evidence that defendant, while under arrest and in custody, and after Miranda warnings were given by a police officer, so the officer testified, signed a voluntary confession of the alleged crime.

There was considerable testimony supporting the plea of insanity, which embraced that phase where an accused, although knowing right from wrong, is not legally responsible if mental disease destroys power to choose and alone causes crime. Boyle v. State, 229 Ala. 212, 154 So. 575.

We have held that the duty rests in the first instance on the trial court to determine whether a confession is voluntary. McNair v. State, 50 Ala.App. 465, 280 So.2d 171(4), cert. denied 291 Ala. 789, 280 So.2d 177; Wallace v. State, 290 Ala. 201, 275 So.2d 634.

We now hold that the Miranda rights, as appear in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 are so interwoven with and predicatory to admission in evidence of a confession that the trial court should have first determined that this defendant did knowingly and intelligently waive his right to remain silent. The interrogations conducted by the law enforcement officers, while defendant was under arrest, had the impact on him of continuous periods of questioning. In fact the questioning continued at intervals for a period of two days, during which time the defendant cried.

III

We further observe from the testimony of Officer Clifford L. King that after he gave defendant the Miranda warnings, the defendant said he wanted to talk with a lawyer; that “We” called Lawyer Cameron, and defendant talked with him over the phone; that the defendant said the lawyer told him to tell the truth; that he (defendant) signed the rights form, and two days later signed the statement.

Thus, it appears that defendant expressed a desire for an attorney, but was accorded only the privilege of talking with one over the phone—about as satisfactory and protective as a lawyer striking a jury over the phone, or a doctor diagnosing a physical ailment over the phone.

At any rate, the officer, in further interrogating the defendant two days later, did not comply with the mandates of Miranda, which hold, and we quote:

“. . .If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent.” [384 U.S. 436, at page 474, 86 S.Ct. 1602, at page 1628, 16 L.Ed.2d 694, at page 723]

Under the circumstances, the trial court committed reversible error in admitting the confession in evidence over defendant’s objection. The trial court was informed in camera that defendant wanted an attorney and none was present when the confession was obtained. The confession should have been suppressed. We again note that defendant was an indigent.

IV

We also think the Court committed reversible error in granting the State’s motion to exclude the public from the courtroom during the trial of the case. The trial court assumed, and the defendant’s counsel expressed agreement, that he had the discretionary right to grant the motion. In so doing, the court denied defendant a public trial under our State and Federal Constitutions. Section 6, Constitution of Alabama (1901) provides that “in all criminal prosecutions, the accused has a right to . a speedy, public trial.”

This provision has been construed in Reynolds v. State, 41 Ala.App. 202, 126 So.2d 497. This case has application to the instant exclusion. The defendant was denied his constitutional right to a public trial. The denial is not cured by the fact that the trial judge and counsel for defendant were mistaken in this conception that the law gave the court discretion to effect the exclusion.

The judgment is reversed and the cause remanded.

The foregoing opinion was prepared by the Honorable Bowen W. Simmons, Supernumerary Circuit Judge, serving as a Judge of this Court under Section 2 of Act No. 288, July 7,1945, as amended; his opinion is hereby adopted as that of the Court.

We reverse and remand the judgment addendum.

REVERSED AND REMANDED.

CATES, P. J., and TYSON and HARRIS, JJ., concur.

DeCARLO, J., dissents.

DeCARLO, Judge

(dissenting).

Under the facts and circumstances of this case, I would affirm this conviction.

I

The waiver of the presence of counsel by appellant was clear. An evidentiary hearing was held out of the jury’s presence to determine the voluntariness of the confession. At its conclusion, the trial judge found the evidence sufficient to show that the admission in question was freely given by the appellant.

The record showed the appellant was arrested at approximately 5:30 P. M., on August 13, 1974, and was brought to jail. He was advised of his constitutional rights by Officer King, who read them to him from a “Miranda Card.”

On being informed of these rights, appellant asked to speak to his lawyer, George Cameron. At that point, the officers contacted Mr. Cameron.

Prom the record:

“Q. (By Mr. Thomas) Did he ask for a lawyer?
“A. The day this was signed and read or the day that we picked him up and it happened?
“Q. The day you picked him up and it happened?
“A. He did. He wanted to talk to a lawyer that day.
“Q. Now, did you all contact his lawyer?
“A. We did.
“Q. Who was that?
“A. Mr. George Cameron.
“Q. Did he talk with his lawyer?
“A. Let him talk to the lawyer, himself.
“Q. What, if anything, did he say after he got through talking with Mr. George Cameron?
“A. He said Mr. George Cameron—
“MR. FULLER: (Interrupting) Excuse me—
“MR. THOMAS: (Interrupting) This is what the defendant said.
“MR. PULLER: Oh; all right.
“Q. What did he say?
“A. The defendant said Mr. Cameron told him to tell the truth.
“Q. And told him to talk with you all?
“A. (Nods head affirmatively).”

Here this man was afforded the right to confer with his own counsel and only after he talked with his attorney was any interview conducted. As is shown from the record, the appellant acted on the advice of his counsel when he made the incriminating statement.

The statement made to the police was two pages in length and was signed at the bottom of each page by the appellant. Near the middle of the last page, the appellant initialled a correction. It was dated August 15, 1973, and indicated a time of 12:05 P. M.

In addition to the written confession, appellant also executed a written statement delineating his constitutional rights. Included in this statement of rights was the admonition concerning the right to confer with, presence of, and appointment of counsel.

Also, in the confession proper, at the very beginning, we find that appellant again was apprised of his right to counsel in this language:

“STATE’S EXHIBIT 5
“I, Willie James Wright, hereby make the following statement to Det. G. J. Vail-lancourt & Sgt. C. L. King who I know as police officers of the City of Montgomery. I have been advised of my rights and I know that I may have an attorney present if I wish and if I cannot afford to hire one the court will appoint one for me. I make this statement of my own free with (sic) and no threats or promises have been made to me. . . . ”

Prom the time of this man’s arrest until the time the statement was executed, approximately 43 hours elapsed. Nothing in the record indicates that the statement was the product of an uninterrupted period of continuous questioning. On the contrary, the record reflects the following in Officer King’s testimony:

“Q. . . . And how long did you observe him?
“A. I stayed with him approximately— well, near about two days.
“Q. Yes, sir. Now, during that time— “A. (Interrupting) Off and on, we took him—
“Q. (Interrupting) Sir?
“A. Off and on for two days, we would take him out and when he got tired of talking, he didn’t want to talk to us, we would take him back.”

No evidence was presented that made it appear appellant was refused access to his family, friends or counsel, or that he had been physically abused and not given food or drink.

At no time after the initial “Miranda Warning” on August 13, 1974, and his telephone conversation with Cameron, did appellant ever request counsel. As can be seen from the foregoing, he was in fact, made aware of this right to presence of counsel at two other instances.

Miranda, supra, says a man has a right to confer with his attorney and have him present during questioning. It does not say that after he has talked to his attorney, he cannot then make a valid waiver of counsel.

The appellant at bar was not a first offender. He had been convicted and sentenced on two prior occasions for similar offenses. His only request was to speak to his attorney, which was granted, and not to have him present. In my judgment, a voluntary waiver of right to counsel was shown, and the confession was properly admitted.

II

I now turn to the point of error that the appellant was denied a public trial.

The record indicates that the court stated it would exercise its discretion to “clear the court.” Whether it was within the court’s discretion seems to be resolved by the apparent emasculation of the pertinent statute through the adoption of the Judicial Article, supra.

Even so, the mere statement that the courtroom was to be cleared, is not sufficient. In Washburn v. State, 42 Ala.App. 7, 150 So.2d 398, Judge Cates writing for this court, acknowledged there must be a “showing” that the public was excluded.

This is shown in the following language from Washburn, supra:

“ ‘. . . [I]t is said that to show that the judge below denied a public trial as demanded by Constitution 1901, § 6, there must be some ‘showing’ that ‘the public construed the language used by the trial judge as requiring them to leave or that the public did leave after the trial judge made his statement.’ ”

Without some indication that on-lookers did in fact leave after the judge’s announcement, it cannot be successfully contended that appellant was denied a public trial.

For the foregoing reasons, I respectfully dissent.

ON REHEARING

BOWEN W. SIMMONS, Supernumerary Circuit Judge.

Deputy District Attorney Thomas, prosecuting for the State, commented to the trial court that the facts were repulsive and the alleged victim was eight years old. He asked the court to strongly consider whether or not the courtroom should be cleared. The judge then asked Mr. Fuller, defendant’s attorney, if he had any objections. He replied: “Your Honor, I believe it is within the Court’s discretion, in any case. . After a short discussion about certain witnesses being excused from the rule, the Deputy Solicitor again observed, “. we would request that the courtroom be cleared. The court then stated: “I am going to exercise my discretion in favor of the State, Mr. Fuller, and clear the courtroom.” Thus, it appears that the motion of the State was granted.

The State contends, in its application for rehearing now under consideration, that there is no notation in the record that any exclusion of the public actually took place; that the instant opinion of this Court is in direct conflict with Washburn v. State, 42 Ala.App. 7, 150 So.2d 398, quoting therefrom as follows:

“In Lang v. State, 271 Ala. 1, 122 So.2d 533, it is said that to show that the judge below denied a public trial as demanded by Constitution 1901, § 6, there must be some ‘showing’ that ‘the public construed the language used by the trial judge as requiring them to leave or that the public did leave after the trial judge made his statement.’ (Italics added.) On the record before us, we do not need to decide whether Washburn purported to waive a public trial. Cf. interpretation of Alabama cases in 23 C.J.S. Criminal Law § 963(8), to effect that an accused may not waive public trial.”

Thus it appears in Lang that there must be a “showing” that the public was impressed by the court’s language that they were required to leave or that the public did leave — they had no option. There is not before us in this case any language used by the court that the public could misconstrue, as in Lang, or that they were given the option to remain or go — permissive language. The record is silent as to how the court went about executing the motion that it granted. In other words, so far as the record shows, the court did not use language that tended to create confusion as to what the court intended. If the record had noted that the public had left after the judge made his statement, then it would appear that the public understood the court mandated them to get out or leave.

But as we have noted, the record before us does not show that the court used any language requiring construction by the audience. The court granted the State’s motion and stated he was going to clear the courtroom. As to how he went about doing it or the mechanics employed to make the clearance is not shown. Suffice to note that he granted the motion and made a positive statement that he would clear the room. This was a ruling not addressed to the public in the courtroom.

We hold that the court, in the absence of anything to the contrary, and no confusing language appearing, performed his duty and cleared the room as he indicated in his ruling he would do. We are unwilling to hold that the court was derelict in performing his duty. There is nothing in the record to indicate such dereliction, or confusion on the part of the public as in Washburn and Lang, supra. A presumption, nothing appearing to the contrary, obtains that the court performed its duty.

OPINION EXTENDED, APPLICATION OVERRULED.

CATES, P. J., and TYSON and HARRIS, JJ., concur.

DECARLO and BOOKOUT, JJ., dissent. 
      
      . Former § 169, Constitution 1901, which authorized exclusion of the public from the court room in cases of rape and assault with intent to ravish is hence no longer in our constitution as a modification of § 6—public trials. Amendment 328 repealed all of Article VI of the Constitution 1901 and substituted §§ 6.01-6.21, inclusive for former Article VI (§§ 139-172) and Amendments 317 and 323.
     