¶2On August 14, 1973, the appellant, Michael R. Pardue, was convicted of murder in the first degree. He was sentenced to life imprisonment. After the United States District Court for the Southern District of Alabama granted the appellant habeas corpus relief, on November 30, 1992, counsel was appointed for the appellant and the appellant was granted an out-of-time appeal. On November 30, 1992, counsel was appointed to represent the appellant on appeal.
¶3In the early morning hours of May 22, 1973, the body of Ronald Rider was found on the floor at Thoni's gasoline service station in Baldwin County, Alabama. Mr. Rider had been shot in the head by a .410 shotgun and died as a result of the wounds he suffered. The appellant, who was 17 years old at the time of the shooting, was arrested and was taken to the Saraland Police Department.
¶4Robert Stewart, chief investigator for the Baldwin County Sheriff's Department, took the appellant's statement from the appellant on May 23, 1973. Stewart testified that prior to taking the appellant's statement, he read the appellant hisMiranda rights and the appellant signed a waiver form. Stewart further testified that no inducements were offered to the appellant to get him to give a statement. Two other police officials were present when the appellant made his statement regarding Mr. Rider's death.
¶5According to Officer Stewart, the appellant told him that on May 22, 1973, the appellant and Theresa Lanier met at a motel in Mobile. The appellant told Stewart that they left the motel in a stolen pick-up truck and went to Baldwin County, where they met John Brown. The appellant told Stewart that he had a .410 shotgun with him. In his statement, the appellant stated that they drove to Thoni's gasoline service station and Brown pretended that the truck was overheated. He stated that they then entered the station and that he held the gun on Mr. Rider. The appellant stated that Brown removed money and car keys from Mr. Rider's pockets. The appellant told Stewart that Brown left the station to get a crowbar so that Mr. Rider could pry open the safe, which was locked. According to Stewart, the appellant stated that while Mr. Rider had the crowbar in his hand, he turned around and threw the crowbar at the appellant. The appellant told Stewart that, as a result, he shot Mr. Rider.
¶6Theresa Lanier testified that the appellant did not shoot Mr. Rider. She testified that before the shooting, the appellant handed Brown the gun and told Brown to watch Rider. Lanier stated that she was going outside to look at Mr. Rider's car. At that time, it appeared as if Mr. Rider was going to hit Brown with the crowbar, and, as he did, the gun went off.
¶7William T. Travis, chief investigator for the Mobile County Sheriff's Department, testified that he had known the appellant for several months. According to Travis, "90% of the time," the appellant was intelligent, courteous, and well-mannered. Travis said that when the appellant talked about the crime, he expressed no emotion.
¶8The defense presented the testimony of the appellant's aunt, Jose Kinnard. Kinnard testified that the appellant's mother had been shot by his father and that his mother died from the wound in the appellant's arm when the appellant was 14 years old. After the death of his mother, the appellant would sometimes act strange. Sometimes, the appellant would be talking or acting normal and then, all of a sudden, the appellant would black out and not remember the subject of the conversation. She stated that the appellant was insane "on and off." At arraignment, the appellant pleaded not guilty or not guilty by reason of insanity.
¶10The appellant correctly asserts that a confession is prima facie involuntary and inadmissible, and the burden is upon the State to establish voluntariness and a Miranda predicate for the confession to be admissible. Jackson v. State,562 So.2d 1373 (Ala.Crim.App. 1990). A two-part test is used to determine whether an accused's statement is admissible. First, the trial court must determine whether the accused was informed of his Miranda rights, and second, the trial court must determine whether the accused has voluntarily and knowingly waived his Miranda rights in making his statement. Holder v.State, 584 So.2d 872 (Ala.Crim.App. 1991); Carpenter v.State, 581 So.2d 1277 (Ala.Crim.App. 1991). Here, Officer Stewart testified that the appellant was read his Miranda rights. Thus, the evidence reflects the first part of the test was met.
¶11Whether the accused voluntarily and knowingly waived hisMiranda rights is determined by the totality of the circumstances of each case. Menefee v. State, 592 So.2d 642 (Ala.Crim.App. 1991); Lawhorn v. State, 581 So.2d 1159 (Ala.Crim.App. 1990), aff'd, 581 So.2d 1179 (Ala. 1991), cert.denied, 502 U.S. 970, 112 S.Ct. 445, 116 L.Ed.2d 463 (1991). In this case, the unrefuted evidence shows that the officers read a waiver of rights form to the appellant, that the appellant indicated that he understood his rights and the contents of the waiver form, and that the appellant signed the waiver of rights before he gave his statement. A trial court's determination that an accused's statement was voluntary will not be disturbed on appeal unless the determination is contrary to the great weight of the evidence. Woods v. State, 592 So.2d 631, 634 (Ala.Crim.App.), writ quashed, 592 So.2d 636 (Ala. 1991). In this case, based upon the evidence presented by the state, we hold that the trial court did not abuse its discretion because the evidence establishes that the statement was made voluntarily after the appellant had been informed of hisMiranda rights.
¶13The facts adduced at trial tend to establish that while the appellant was in custody, David Barnette, an attorney who did not represent the appellant at trial, arrived at the police station and told the police that he represented the appellant. However, the appellant's family said that they had not hired Barnette at the time, and the appellant told the investigator that he "did not know how Barnette got into the case." Regardless, the appellant never requested to speak to an attorney.
¶14In Escobedo, the Supreme Court held that when a suspect is subjected to in-custody interrogation and the accused has been denied counsel after requesting counsel, no statement elicited by the police during the interrogation may be used against him at trial. 378 U.S. at 491, 84 S.Ct. at 1765. However, in this case, although an attorney claiming to represent the appellant came to the police station and offered his services, the appellant never invoked his right to confer with counsel.
¶15An accused need not be informed of his attorney's presence at the place where he is being interrogated when he does not ask to speak to his attorney. See Moran v. Burbine, 475 U.S. 412,106 S.Ct. 1135, 89 L.Ed.2d 410 (1986). See also Aultman v.State, 621 So.2d 353 (Ala.Crim.App. 1992); Gilchrist v.State, 585 So.2d 165 (Ala.Crim.App. 1991). Additionally, this principle applies to juveniles who do not request to speak to their parents. O.M. v. State, 595 So.2d 514 (Ala.Crim.App. 1991), writ quashed, 595 So.2d 528 (Ala. 1992). Therefore, because the appellant never invoked his right to confer with counsel, the statement was not obtained in violation ofEscobedo and the trial court properly allowed testimony regarding the statement.
¶18The appellant acknowledges that the determination as to whether an accused should be afforded a mental examination is discretionary with the trial court. Case law construing §15-16-22 establishes that the accused does not have an automatic right to a mental examination. Robinson v. State,428 So.2d 167, 170 (Ala.Crim.App. 1982). The accused has the burden of establishing that a reasonable doubt exists as to the accused's mental competency. Id. (citing Miles v. State,408 So.2d 158 (Ala.Crim.App. 1981), cert. denied, 408 So.2d 163 (Ala. 1982)). On review, this Court is to determine whether the trial court abused its discretion in denying a request for a mental examination. Id. (citing, Beauregard v.State, 372 So.2d 37 (Ala.Crim.App. 1979), cert. denied,372 So.2d 44 (Ala. 1979).
¶19In this case, although we have no record of the hearing on the appellant's motion for a mental examination, we cannot hold that the trial court abused its discretion in denying the motion. The appellant attempted to elicit testimony at the trial from its own witness and from prosecution witnesses that he was mentally incompetent. Nonetheless, the evidence tended to establish that the appellant, most of the time, was courteous and intelligent and that he behaved normally. The only witness to testify otherwise was the appellant's aunt, who stated that the appellant was insane "on and off" because it appeared that the appellant would forget conversations and would not take the advice of adults. We are not inclined to believe that this evidence creates a reasonable doubt as to the appellant's competency to such an extent as to require us to hold that the trial court abused its discretion.
¶21While there is nothing in the record to suggest that the trial court informed the appellant of the benefits of the Youthful Offender Act, there is no showing that the appellant ever raised this omission to the trial court as error or that he objected to being denied youthful offender status. Therefore, we will not reverse on this issue.
¶23The appellant argues that because this out-of-time appeal is from a trial that took place approximately 20 years ago, we should not apply Jackson. However, Jackson is the procedure set forth by the Alabama Supreme Court to allow the preservation of ineffective assistance of counsel claims and we will not ignore the requirements that the Alabama Supreme Court has held must be met.
¶24The judgment of the trial court is due to be affirmed.
¶25AFFIRMED.
¶26All the Judges concur.