Bertha Mae Barfield, Petitioner-appellant, v. State of Alabama, Respondent-appellee, 552 F.2d 1114 (5th Cir. 1977)

Bertha Mae Barfield appeals from an order denying her petition for habeas corpus. In 1972 she was convicted of the first degree murder of Prince Albert McKinney and sentenced to life imprisonment. Her conviction was affirmed by the Alabama Court of Criminal Appeals, Barfield v. State, 54 Ala.App. 15, 304 So. 2d 257 (1974), after which she sought relief in the district court. The primary question to be decided by this court is whether her interrogation by a Birmingham, Alabama police officer constituted "custodial interrogation" within the meaning of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). We conclude that she was not the subject of such an interrogation and, therefore, the order of the district court denying her petition for habeas corpus is affirmed.

Basic to our decision is Miranda v. Arizona, supra, in which Chief Justice Warren defined the threshold requirement of custodial interrogation as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706 (emphasis added) (footnote omitted). Courts and commentators have probed every nuance of the above-emphasized definition in attempts to apply this language to various fact situations. The cases in which application of the definition are most troubling can generally be divided into two groups; those situations in which Miranda applies outside the confines of the station house, and those situations in which a person is deemed to have not "been taken into custody or otherwise deprived of his freedom in any significant way" while being questioned by law enforcement personnel at their offices.¹  It is within this latter group that the present case falls.

Prince Albert McKinney was killed on October 26, 1972 while he was sitting in his car, which was parked at the apartment of his girl friend, Carolyn Goldsby. Barfield had previously been intimately involved with the decedent, who was the father of her son born earlier that year. Their relationship ended about the time of the child's birth and McKinney's subsequent relationship with Goldsby apparently resulted in jealousy on the part of Barfield.

Sergeant James E. Gay of the Birmingham Police Department testified at Barfield's trial that he was called to the scene of the McKinney shooting, where he conducted an investigation. Later that same evening he took a statement from Goldsby in which Barfield was mentioned as a possible suspect. Several other persons were also interviewed. Gay's first contact with Barfield occurred four days later on October 30, 1972, when he talked with her at approximately 9:00 p. m. in front of her father's house. During this conversation, Gay asked about her relationship with McKinney, whether she possessed a shotgun, and about her activities on the day of the murder. He then asked whether she would come to his office for a second meeting the next afternoon at 3:00 p. m. and Barfield indicated that she would.² 

She arrived at the police station on October 31, 1972 at the appointed hour but her interview with Sergeant Gay didn't begin until approximately 3:50 p. m. The questioning followed generally the same lines as it had the previous night concerning her relationship with McKinney, her activities on October 26, 1972 the day of the murder, whether she had ever fired a shotgun, if she had ever called Carolyn Goldsby,³  and about Goldsby's relationship with McKinney. The sequence of events following this first interview on October 31 is related in the following excerpt from Sergeant Gay's testimony at Barfield's trial:

Q (by Mr. Waites, the prosecutor) All right. After this statement that you just related to us, that she made and you talked to her and had a conversation there at the office, did you stay there at the office, or did you leave the office and go somewhere?

A (by Sergeant Gay) I went to the basement, to the snack bar, and got Bertha Mae a coca cola.

Q When you left, was she still in the room, or did she go out, or what?

A She was still in the office, by herself.

Q Did you have occasion to go back up?

A Yes, sir. I carried the coke back up to her.

Q When you got there in to that to that room, was she still in the room?

A Yes, sir. I heard her talking, and when I got to the door I stopped and looked, and she was in front of the chair that she had been sitting in, in a fetal type position.

Q Was she on the floor, or in the chair?

A On the floor.

Q What did she say?

A She was saying he made me do it. He hypnotized me. He said, "Vishanti. He has done this on several occasions.

"He told me to go to the North Gate Trailer Park and get the rifle, or gun, that he used to hunt with.

"And to come to 21st Avenue and find his station wagon, that he would be coming out of the apartment, down the stairs in the rear, at or around 8:00 o'clock, when he had to carry Carolyn to play bingo, and to shoot him in the stomach, that his time was up, that he had done wrong."

Q Now, all this time you were standing there at the door and she was on the floor, saying this?

A Yes, sir.

Q Was anybody else in that room while she was talking like that?

A No, sir.

Q Did you respond did you say anything to her while she was saying this, or did you just stand there?

A Not until she finished talking.

Q When she finished talking, what happened?

A I went to her side, and I put the coke down on the desk and assisted her back to the chair.

I went across the room and got her some kleenex and let her use that to wipe some tears off of her face, and she drank part of the coke.⁴ 

Upon regaining her composure, Barfield was informed of her rights in accordance with Miranda. She then indicated that she would answer further questions and subsequently led officers to the murder weapon. Following the trip to the vicinity of the McKinney murder, where the shotgun was found, Barfield gave another statement that was transcribed. This statement was not signed, however, and it was not introduced in evidence.

At trial, an extensive voir dire examination of Sergeant Gay and Barfield was conducted on the question of the admissibility of Barfield's confession. The trial judge, after hearing the witnesses and the arguments of counsel, ruled that the inculpatory statement overheard by Sergeant Gay "was normally and voluntarily made."⁵  This ruling was affirmed by the Alabama Court of Criminal Appeals in a thorough and exhaustive opinion. Barfield v. State, supra.

The decision in this case was delayed pending the Supreme Court's opinion in Brewer v. Williams, --- U.S. ----, 97 S. Ct. 1232, 51 L. Ed. 2d 424 (1977). In the interim, however, the Court rendered a per curiam opinion in Oregon v. Mathiason, --- U.S. ----, 97 S. Ct. 711, 50 L. Ed. 2d 714 (1977). The facts presented in Mathiason are strikingly similar to the facts in the instant case and the differences that do exist are insufficient to change our conclusion that Mathiason controls our decision here. In Mathiason the Supreme Court reversed the decision of the Supreme Court of Oregon holding that a confession was the result of coercive interrogation and not admissible into evidence.⁶ 

In reaching its conclusion in Mathiason the Supreme Court quoted the description of the factual situation and the reasoning given by the Supreme Court of Oregon. That portion of the decision is printed in the margin.⁷  As was Mathiason, Barfield was pointed out to police as a possible suspect and both went to the police station voluntarily. Admittedly, Barfield was not informed that she was not under arrest, but neither was she informed that she was. It is clear from the record that she was not physically restrained in any manner and was in fact left alone on at least one occasion. The cases cannot be distinguished on the fact that Mathiason was allowed to leave the police station at the conclusion of his interview, while Barfield was placed in jail. Sergeant Gay would indeed have been derelict in his duty had he allowed her to go free. A further dissimilarity between the two cases is the fact that Mathiason was falsely told that his fingerprints had been found at the scene of the crime. No hint of such conduct on the part of the Birmingham police is alleged here.⁸ 

The following discussion of the custodial interrogation issue in Mathiason is pertinent:

Such a noncustodial situation is not converted to one in which Miranda applies simply because a reviewing court concludes that, even in the absence of any formal arrest or restraint on freedom of movement, the questioning took place in a "coercive environment." Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. But police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person's freedom as to render him "in custody." It was that sort of coercive environment to which Miranda by its terms was made applicable, and to which it is limited.

--- U.S. at ----, 97 S. Ct. at 714, 50 L. Ed. 2d at 719 (emphasis in original). In light of the foregoing, we are not persuaded that Barfield was "in custody" at the time Sergeant Gay overheard her inculpatory statements.

Barfield's counsel contends that she was restrained because she was told by Sergeant Gay that she could not leave. The force and effect of such a statement, assuming it was made,⁹  is diminished by the fact that Barfield was left alone, her departure unimpeded by physical restraints or the presence of other officers. When viewed in that light, Gay's alleged statement to Barfield that she remain in the office seems more in the nature of a precatory request than a command. See United States v. Brunson, 549 F.2d 348, 357 nn. 12 & 13 (5th Cir. 1977).

Relying on Brown v. Beto, 468 F.2d 1284 (5th Cir. 1972), and other authority from this circuit, Barfield claims that her first confession¹⁰  was illegal and, therefore, inadmissible because the investigation had focused on her. Such reliance is misplaced where the facts of the interrogation here are as close as they are to the facts in Mathiason. "Such a noncustodial situation is not converted to one in which Miranda applies simply . . . because the questioned person is one whom the police suspect. Oregon v. Mathiason, --- U.S. ----, ----, 97 S. Ct. 711, 714, 50 L. Ed. 2d 714, 719 (1977).

AFFIRMED.