Williams v. State

David Lee WILLIAMS v. STATE of Arkansas

CA CR 96-198                                       ___ S.W.2d ___

                  Court of Appeals of Arkansas
                          Division III
                Opinion delivered March 12, 1997


1.   Motions -- directed verdict -- failure to renew constituted waiver of
     challenge to sufficiency of evidence. -- Appellantþs failure to renew
     his motion for directed verdict after the State presented
     rebuttal evidence constituted a waiver of his challenge to the
     sufficiency of the evidence; A.R.Cr.P. Rule 33.1 expressly
     requires renewal of a directed-verdict motion after rebuttal
     evidence has been presented, and the rule is strictly
     interpreted; consequently, appellantþs challenge to the
     sufficiency of the evidence regarding his mental state was not
     preserved for appellate review.

2.   Criminal procedure -- custodial statements -- standard of review. -- On
     appeal, an independent determination about the validity of
     custodial statements is made based on the totality of the
     circumstances, and there is no reversal unless the trial
     courtþs determination is against the preponderance of the
     evidence; whether a defendant made a valid waiver under the
     circumstances is a question of fact for the trial court to
     resolve.

3.   Criminal procedure -- custodial statements -- trial court's finding that
     statements were made voluntarily was not against preponderance of evidence.
     --  Although appellant alleged that the police practiced
     deception by deliberately withholding information from him
     concerning the victimþs welfare, and by consciously
     misrepresenting that they did not know her status when, in
     fact, they knew that she had died, appellant had already been
     advised of his rights, had agreed to talk with the police, and
     had signed a waiver-of-rights form before the police lied to
     him about the victimþs welfare; when appellant agreed to talk
     with the police, he had already been told that the police
     could and would use anything that he said against him; under
     the totality-of-the-evidence standard of review applied to
     challenges to trial court decisions that deny motions to
     suppress custodial statements, the appellate court held that
     the trial judgeþs denial of appellantþs suppression motion
     based on a finding that the statements were made voluntarily
     was not against the preponderance of the evidence.

4.   Criminal procedure -- custodial statements -- trial court's decision that
     appellant knowingly and intelligently waived Fifth Amendment right was not
     clearly erroneous. -- Although appellant asserted that he lacked
     full awareness of his Fifth Amendment right to be free from
     self-incrimination because he was allegedly intoxicated as a
     result of having consumed alcohol and taken Valium, law
     enforcement officers testified that he appeared to understand
     what was said to him and did not slur his speech; appellant
     signed two rights forms in which he indicated that he
     understood his rights and did not request an attorney until a
     detective told him that there were discrepancies between his
     custodial statements and the physical evidence; although there
     was proof that appellant smelled of intoxicants and had
     bloodshot eyes when he was arrested and when an officer
     interviewed him, it was the trial court's function to weigh
     the conflicting evidence, resolve credibility questions, and
     decide whether appellant made a knowing and intelligent waiver
     of his rights; based on its review of the record under the
     totality-of-the-evidence standard, the appellate court held
     that the trial court's decision on this question was not
     clearly erroneous.

     Appeal from Washington Circuit Court; William A. Storey,
Judge; affirmed.
     Tim Buckley, for appellant.
     Winston Bryant, Att'y Gen., by:  Sandy Moll, Asst. Att'y Gen.,
for appellee.
     Sam Bird, Judge.
     David Lee Williams was convicted following a jury trial of the
crime of murder in the second degree in connection with the
shooting death of Debra Barnes at his Fayetteville, Arkansas,
apartment on October 21, 1994.  Appellant now contends that the
trial court erred in denying his motion for directed verdict that
was premised on his claim that the evidence was insufficient to
show that he acted with a culpable mental state.  Appellant also
contends that the trial court erred when it denied his motion to
suppress the statements that he made to the police during the
course of custodial interrogations.  We hold that appellantþs
challenge to the sufficiency of the evidence was not preserved for
appellate review because he failed to renew his motion for directed
verdict after the prosecution presented rebuttal evidence, pursuant
to Rule 33.1 of the Arkansas Rules of Criminal Procedure.  We also
hold that the trial court did not err when it denied his motion to
suppress the custodial statements because appellant agreed to talk
to the police before any deceptive police conduct occurred, and
because the trial court's ruling that appellant knowingly and
intelligently waived his right to remain silent was not clearly
erroneous.  Therefore, we affirm.
     Debra Barnes died from loss of blood due to wounds inflicted
by a bullet that, according to the testimony of an associate
medical examiner during the trial, was fired from a black-powder
pistol.  That bullet first struck her leg, entered the left side of
her body, and then exited the mid-breast area of her body. 
Appellant lived in the apartment where Barnes was shot, and he was
arrested by the police shortly after they arrived at the shooting
scene.  Appellant claimed that the pistol fell from a piece of
furniture and either struck the floor and discharged or discharged
when he tried to grab it after it fell. However, he was charged
with murder in the first degree, found guilty of murder in the
second degree, and sentenced to twenty years imprisonment.
     Appellant first challenges the sufficiency of the evidence to
support his conviction and alleges that he lacked a culpable mental
state because he had been drinking alcohol and taking Valium before
the shooting.  He moved for a directed verdict at the close of the
Stateþs case and renewed his motion for directed verdict at the
close of his defense.  Both motions were denied, and the State
presented rebuttal evidence.  Appellant failed to renew his motion
for directed verdict after the State presented rebuttal.  
     Appellantþs failure to renew his motion for directed verdict
after the State presented rebuttal evidence constituted a waiver of
his challenge to the sufficiency of the evidence.  Rule 33.1 of the
Arkansas Rules of Criminal Procedure (formerly Rule 36.21)
expressly requires renewal of a directed verdict motion after
rebuttal evidence has been presented, and the rule is strictly
interpreted.  Christian v. State, 318 Ark. 813, 889 S.W.2d 717
(1994); Bradley v. State, 41 Ark. App. 205, 849 S.W.2d 8 (1993). 
Consequently, appellantþs challenge to the sufficiency of the
evidence regarding his mental state was not preserved for appellate
review.
     Appellant also contends that the trial court erred by denying
his motion to suppress the custodial statements that he made during
several interrogations by the police, arguing that police deception
rendered his statements involuntary.  Officer David Corley
testified that after appellant was arrested and placed in his
patrol car, at approximately 5:00 a.m. on October 21, 1994, he
informed appellant about his right to remain silent, right to speak
with an attorney before and during any questioning, and right to
stop answering questions at any time after he decided to answer.  
Two hours later,  Detective Larry Norman of the Fayetteville Police
Department interviewed appellant at the police department.  Norman
testified that he read appellant his rights, and that appellant
signed a waiver-of-rights form before Norman conducted a tape-
recorded interview.  According to Normanþs testimony during the
hearing on appellantþs motion to suppress his custodial statements,
appellant was responsive to questions during the interview.  
     Detective Tracey Risley testified at the suppression hearing
that he began interviewing appellant at approximately 9:20 a.m. on
October 21, 1994, after Norman had already interviewed him for two
hours.  Risley did not have appellant sign another rights form, but
testified that he reviewed the rights form that Norman had already
covered.  Risley testified that appellant agreed to talk and gave
þa somewhat detailed statementþ during that interview and indicated
that he understood his rights.  Risley also testified that
appellant specifically asked about the welfare of the shooting
victim.  Although Risley knew that the victim had died, he
testified that he told appellant that he did not know her welfare. 
Risley testified that he did so out of concern that appellant would
have immediately stopped the interview if he learned that the
victim had died, and Risley described his deception as þjust one of
my investigative techniques.þ  Appellant was only informed of the
victimþs death after Risley interviewed him.
     Detective Norman conducted a third interview at 4:34 p.m. on
October 21, 1994, and appellant executed a second rights form in
connection with that interview.  Norman told appellant that there
were discrepancies between his previous statements and the physical
evidence, and appellant requested an attorney during that
interview.
     Appellant contends that his Fifth Amendment right to be free
from self-incrimination was violated when the police intentionally
gave him false information in response to his repeated inquiries
concerning the welfare of the shooting victim.  His contention
requires that we decide whether he made a free choice, uncoerced by
the police, to waive his Fifth Amendment right to be free from
self-incrimination; if so, we must also determine whether
appellantþs waiver of his right to be free from self-incrimination
was made intelligently and knowingly.  Bryant v. State, 314 Ark.
130, 862 S.W.2d 215 (1993).  On appeal, an independent
determination about the validity of custodial statements is made
based on the totality of the circumstances, and there is no
reversal unless the trial courtþs determination is against the
preponderance of the evidence.  Whether a defendant made a valid
waiver under the circumstances is a question of fact for the trial
court to resolve.  Drymon v. State, 316 Ark. 799, 875 S.W.2d 73
(1994).
     Although appellant does not claim that his custodial
statements resulted from intimidation or coercion by the police, he
alleges that the police practiced deception by deliberately
withholding information from him concerning the victimþs welfare,
and by consciously misrepresenting that they did not know her
status when, in fact, they knew that she had died.  However,
appellant had already been advised of his rights, had agreed to
talk with the police, and had signed a waiver-of-rights form before
the police lied to him about the victimþs welfare.  When appellant
agreed to talk with the police, he had already been told that the
police could and would use anything that he said against him. 
Under the totality-of-the-evidence standard of review applied to
challenges to trial court decisions that deny motions to suppress
custodial statements, we hold that the trial judgeþs denial of
appellantþs suppression motion based on a finding that the
statements were made voluntarily was not against the preponderance
of the evidence.
     Appellant also argues that the trial court erred when it held
that he knowingly and intelligently waived his Fifth Amendment
right to be free from self-incrimination.  This argument is based
on appellant's claim that he lacked full awareness of the nature of
that right, and because he was allegedly intoxicated due to having
consumed alcohol and taken Valium.  Appellant maintains that he was
impaired on account of that intoxication when the police arrested
him, when they spoke with him about his rights, and when they
interrogated him.
     However, Officer Corley, Detective Norman, and Detective
Risley testified that appellant appeared to understand what was
said to him and did not slur his speech.  Appellant signed two
rights forms in which he indicated that he understood his rights
and did not request an attorney until Norman told him that there
were discrepancies between his custodial statements and the
physical evidence.  Although there was proof that appellant smelled
of intoxicants and had bloodshot eyes when he was arrested and when
Corley interviewed him, it was the trial court's function to weigh
the conflicting evidence, resolve credibility questions, and decide
whether appellant made a knowing and intelligent waiver of his
rights.  Based on our review of the record under the totality-of-
the-evidence standard, we hold that the trial court's decision on
this question was not clearly erroneous.
     Affirmed.
     Jennings, J., agrees.  Griffen, J., concurs.
               Wendell L. Griffen, Judge, concurs.

     I write separately to emphasize that our decision to affirm
the trial courtþs ruling on appellantþs suppression motion does not
obligate us to condone the deceptive practices that Detective
Risley casually termed þjust one of my investigative techniques.þ 
The police have no greater justification for lying than anybody
else.  They owe a duty to society to be truthful and honest,
especially when gathering and processing information that society
will use in deciding whether to prosecute a person for criminal
conduct.  The criminal justice system is not served if deceit is
the standard operating practice of the agency trusted to ferret out
crime and present evidence of criminal activity at trials.
     Our system of adversarial justice is built on the belief that
the truthfulness of evidence is integrally related to the
trustworthiness of the process by which evidence is obtained.  As
long as we continue to apply the "totality-of-the-circumstances" 
standard in reviewing trial court denials of motions to suppress
evidence, judges must consider the trustworthiness of the evidence
presented by the police and the circumstances related to the
evidence.  Currently, the law requires that in order for a
defendant's incriminating statement to be declared involuntary due
to police deception, the statement must be induced by the deceit. 
This, however, does not mean that police falsehoods within the
context of custodial interrogations are otherwise meaningless.
     Law enforcement agencies and the investigators who present
testimony in criminal proceedings must realize that a reputation
for distorting the truth, hiding the truth, and deliberately
falsifying information gained from a criminal investigation and
interrogation lowers public confidence in the integrity of the
police and heightens distrust in the evidence they present.  If
lying to suspects is a common investigative practice of the
Fayetteville Police Department or one of its detectives, then that
practice and policy of deliberate deception is a factor that trial
courts should consider.  This is especially true when weighing the
credibility of police witnesses on a wide variety of issues
including whether the police have reasonable suspicion for making
investigatory stops; whether they have actually informed persons of
their right to remain silent, obtain counsel, and halt questioning;
as well as whether the police have been truthful concerning the
handling of physical evidence.  Also, appellate judges ought to
consider evidence of police deceit along with the rest of the
circumstances when we review trial court decisions to deny motions
to suppress evidence.  Otherwise, the police will have a þfree lie
zoneþ within which they may conduct interrogations in the hope of
obtaining incriminating information.
     Some may view my concern for police integrity and my disdain
for police deceit during criminal investigations out of place;
however, the impact of the revelations concerning Detective Mark
Fuhrman of the Los Angeles Police Department during the criminal
trial of O.J. Simpson proves my point.  In this case, Detective
Risley appears to believe that lying to suspects during the course
of custodial interrogations is both appropriate and worthwhile.  He
acknowledged that he lied to appellant about the victimþs welfare
out of concern that appellant would exercise his constitutional
right to remain silent if he knew that the victim had died, as if
appellantþs freedom to remain silent under the Fifth Amendment
somehow justified lying.  Risley termed lying to suspects þone of
my investigative techniques,þ thereby admitting that it is part of
his investigative protocol.  If Risley and the Fayetteville Police
Department consider lying an acceptable investigative technique to
produce incriminating information upon which to base charges, is
there any reason to believe that they are truthful in other aspects
of criminal investigation?  Is Risley more likely to be truthful
when testifying during trials based on the evidence he claims to
have uncovered than he would be in investigating leads?   
     If the police want trial and appellate judges to trust their
integrity and honesty when they testify about the voluntariness of
custodial interrogations, then they must be truthful in their
dealings with suspects and respect their constitutional rights
during custodial interrogations.  If they insist on lying as
standard operating procedure, trial and appellate courts must
consider that propensity when performing the judicial functions of
weighing credibility and assessing the circumstances surrounding
the voluntariness of custodial statements.  
     The virtue of our criminal justice system results from our
conviction that dedication to truth does not require us to devalue
fundamental liberties such as the freedom to remain silent.  If we
belittle that value, criminal prosecutions will deteriorate to mere
legal games decided by the side most successful in deceit, rather
than determinations about whether the proof that the prosecution
offers on criminal charges is true.