Appeal by defendant from Sitton, Judge. Judgment entered 15 May 1981 in Superior Court, Jackson County. Heard in the Court of Appeals 1 March 1982.
Hedrick Judge. Chief Judge Morris and Judge Vaughn concur.
Defendant assigns as error the trial court's denial of his motion to suppress an alleged confession. Prior to trial defendant filed this motion to suppress evidence of statements made by him following his arrest on 31 January 1981. He alleged that the statements were taken after he had requested counsel, that this request was ignored by law enforcement officials, and that he never knowingly withdrew his request. At the voir dire hearing on this motion, Dan Crawford, an S.B.I. agent, testified that he saw defendant at the Rutherford County Jail at approximately 5:05 p.m. on 31 January 1981. In Crawford's opinion, defendant "was in full possession of his faculties." Crawford read defendant his Miranda rights, and defendant indicated he understood them. Crawford testified further:
I then asked him [defendant] if he would sign the written waiver. He then asked me if I would be able to provide him an attorney today, and I instructed him that I was not able to be the one to provide him with an attorney today through the courts. At that time I advised him that I was not able to call an attorney, that there was a telephone on the desk and a telephone book and he stated he did not want to call an attorney.
He first refused to sign the waiver, and by the statement he made then it implied to me that he wanted an attorney.
Then, he said he did not want to make a written statement and sign it, and I asked him if he was willing to talk to me on the condition that if he did not want to answer any particular question he could refuse to do so. He said he understood this, and he would talk to me without an attorney present, and I again handed him the rights form, and at that time he signed it.
This form was signed January 31, 1981, a short time after 5:05 p.m.
On this exhibit [waiver of rights form] appears the question "Do you want a lawyer?" and following that in the blank line appears the word "yes" which was written in and then marked through. It was marked through by me. This is my handwriting. I did this after Mr. Dowless questioned me about appointing him a lawyer, and after I had advised him that I could not and had given him the opportunity to make a phone call. He then stated he would talk to us on the condition that he could answer he would talk to us on the condition that he could answer only those questions which he wanted and refused to answer those he did not wish to answer. At that point he signed the waiver of rights. I struck out the word "yes" prior to the time that this exhibit was handed to the defendant and prior to the time that he signed it.
The entire conversation took approximately 1 hour and 45 minutes. During this time, no threats were made by myself or Sheriff Holcombe to induce the defendant to make a statement. No promises were made by either myself or Sheriff Holcombe to the defendant.
Defendant's voir dire testimony tends to show that on the evening of 30 January 1981 he was arrested for driving under the influence and placed in the Rutherford County Jail. On the following day Crawford informed him that he was not under arrest for the murder of Ms. Buchanan and read him his Miranda rights. Defendant then asked for a lawyer. He signed the rights form after Crawford informed him that a lawyer could not be "gotten and that was it." Defendant verified the statement allegedly made by him after Crawford indicated that his brother was being held
in custody. After hearing the voir dire testimony, the trial court made detailed findings of fact consistent with the State's evidence and concluded, inter alia, that defendant "freely, knowingly, intelligently and ...