Mara Garcia v. State of Arkansas

ar00-26

NOT DESIGNATED FOR PUBLICATION

Arkansas Court of Appeals

Josephine Linker Hart, Judge

Division I

MARA GARCIA

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 00-26

December 13, 2000

APPEAL FROM THE CRAWFORD COUNTY CIRCUIT COURT

[NO. CR-98-287]

HONORABLE FLOYD G. ROGERS, CIRCUIT JUDGE

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

JOSEPHINE LINKER HART, Judge

A jury found Mara Garcia guilty of manslaughter and sentenced her to a total of ninety-six months in the Arkansas Department of Correction. For reversal, appellant argues that the trial court erred by excluding the testimonies of Marcia Trejos and Miguel Ramos. She also asserts that the trial court erred by denying her motions to suppress her statements because the statements were made as a result of coercion exerted on her by the police and after she was illegally seized by the police. Although we affirm the trial court's exclusion of the testimony of Trejos and the denial of appellant's motions to suppress, we reverse and remand for the purpose of admitting the testimony of Ramos for impeachment purposes only.

At 1:15 p.m. on August 6, 1998, four-month-old Kelvin Ayala was admitted to Fort Smith's St. Edwards Mercy Medical Center. He was unconscious, unable to respond to painfulstimuli, and breathing only once every twenty or thirty seconds. Kelvin had small

purple spots on his face, indicating broken blood vessels, and a computerized tomography (CT) scan of his brain revealed trauma. At 5:10 p.m., Kelvin was flown by helicopter to Arkansas Children's Hospital, where he remained comatose and was placed on mechanical ventilation.

Later that same day, Special Agent Rod Reyes with the United States Immigration Service agreed to a request made by Officer Brent Grill of the Van Buren police to act as a Spanish interpreter for appellant, who only spoke Spanish. Reyes introduced himself to appellant as an immigration agent and read appellant the Miranda warnings in Spanish, and she responded by indicating that she understood her rights.

In appellant's August 6 statement, she stated that Kelvin was brought to her house around 9:00 a.m. that morning by his mother, and at the time, he was tranquil. However, approximately thirty minutes later, Kelvin became cranky, began crying, and vomited after appellant gave him a bottle of water. She then fed him some sweet potatoes, and when Kelvin continued to cry following his feeding, appellant laid him on a bed and left for five minutes. When she returned, Kelvin was shaking and kicking and his tongue was protruding from his mouth. In order to perform CPR, appellant grabbed Kelvin by his shoulders and shook him. Appellant's daughter pressed against Kelvin's chest and blew air into his mouth. The following day, Kelvin's condition worsened, particularly his neurologic functions. He made no effort to breathe, his pupils had no response, and his inability to either cough or gag indicated that he would never be removed from the respirator. These conditions evidenced a lack of brain function, and, in fact, a neurological scan revealed that there was no electricalactivity from Kelvin's brain. Because his brain function had ceased, there was no chance of recovery, and, accordingly, Kelvin was removed from the ventilator, and shortly thereafter, his heart stopped.

On August 13, Special Agent Ignacio Zamora, Jr., with the U.S. Secret Service, commensurate with a request made by Van Buren police, began assisting in the investigation of Kelvin's death. On that day, Zamora, who spoke Spanish, and Grill located appellant. According to Zamora, appellant agreed to accompany them to the police station and answer additional questions. At the police station, Zamora advised appellant of her Miranda warnings in Spanish, and she signed a document that was written in Spanish acknowledging her waiver of her rights. Zamora, a polygraphist, began to ask appellant a series of pre-examination questions. Zamora testified that after approximately thirty minutes, appellant asked if she could speak with him alone, and he asked Grill to leave. Appellant then began to confess to Zamora that she had, in fact, shaken Kelvin "hard." Zamora then asked Grill to return so appellant's confession could be recorded and reduced to writing. The following day, a felony information was filed charging appellant with murder in the first degree.

Appellant moved to suppress her in-custodial confession, arguing that it was inadmissible because it was given involuntarily and was made following the unlawful seizure of her by the police without a warrant or sufficient probable cause. After a hearing in which only Reyes, Grill, and Zamora testified, the trial court denied appellant's motions to suppress, and the case proceeded to trial on June 1, 1999. At trial, the trial court granted the State's motions that prevented appellant from offering evidence concerning (1) allegations that Zamora askedRamos to persuade appellant to change her statement; and (2) a telephone call from appellant concerning the safety of her daughter. From the conviction, comes this appeal.

I. Suppression of confession

On review of a denial of a motion to suppress, "we review the evidence in the light most favorable to the State and make an independent determination based upon the totality of the circumstances. . . . [and] will only reverse a trial court's ruling on a motion to suppress if the ruling was clearly erroneous." Steggall v. State, 340 Ark. 184, 195, 8 S.W.3d 538, 546 (2000) (citations omitted). Appellant argues that the trial court erred by denying her motion to suppress her confession because it was obtained involuntarily and after she was seized without a warrant or probable cause. We address each argument separately.

a. Unlawful seizure

Pursuant to Ark. R. Crim. P. 2.3,

If a law enforcement officer acting pursuant to this rule requests any person to come to or remain at a police station, prosecuting attorney's office or other similar place, he shall take such steps as are reasonable to make clear that there is no legal obligation to comply with such a request.

In State v. Bell, 329 Ark. 422, 948 S.W.2d 557 (1997), our supreme court abandoned the bright-line rule for determining whether a statement to police officers must be suppressed because a person, under the Fourth Amendment, had been seized. Instead, the court stated:

Rather, we will view a verbal admonition of freedom to leave as one factor to be considered in our analysis of the total circumstances surrounding compliance with Rule 2.3. In short, when interpreting Rule 2.3 in the future in deciding whether a seizure of a person has transpired, we will follow United States v. Mendenhall, 446 U.S. 544, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980).

Bell, 329 Ark. at 431, 948 S.W.2d at 562. In its plurality opinion, the Court in Mendenhallstated:

We conclude that a person has been "seized" within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.

Mendenhall, 466 U.S. at 554.

Appellant argues that a review of the totality of the circumstances demonstrates that she was seized in violation of the Fourth Amendment. She specifically argues that a reasonable person would have believed that he was not free to leave if he was unable to leave an interrogation room for hours (from approximately 9:30 a.m. to 5:00 p.m.), not given food, and not allowed to use a telephone. Accordingly, she argues that the court's failure to suppress the statement was clearly erroneous. We, however, conclude that in view of the totality of the circumstances, the appellant was not seized in violation of the Fourth Amendment.

In this case, appellant does not contend that the officers' presence was threatening. In fact, in her direct testimony at trial, she testified that in response to the request to come to the police station for additional questions, she "decided to do so because [she] saw Detective Grill." Moreover, there was no evidence that any officer displayed a weapon, touched appellant, or used language or tone of voice indicating that she was either under arrest or that compliance with any request by the officers might be compelled. Appellant arrived at the police station by her own choice, and there is no indication that a reasonable person wouldhave believed he was unable to leave. There is no evidence that she was coerced or forced to remain at the police station. In addition, there is no evidence that she was either denied a request for food or the use of a telephone. In fact, the evidence revealed that appellant at one point did use the telephone. Nonetheless, upon a review of the totality of the circumstances, we conclude that the trial court's determination that appellant was not seized in violation of the Fourth Amendment was not clearly erroneous.

b. Voluntariness

Our supreme court, in Conner v. State, 334 Ark. 457, 467, 982 S.W.2d 655, 660 (1998) (citations omitted), addressed the issue of voluntary confessions and stated:

A statement is voluntary if it is "the product of a free and deliberate choice rather than intimidation, coercion, or deception." In making this determination, we review the totality of the circumstances, and reverse the trial court only if its decision is clearly erroneous. Relevant factors include the age, education, and intelligence of the accused; the lack of advice as to his constitutional rights; the length of detention; the repeated and prolonged nature of questioning; and the use of mental or physical punishment. Two other pertinent factors are the statements made by the interrogating officers and the vulnerability of the defendant.

Appellant argues that a review of the totality of the circumstances demonstrates that her confession was involuntary. The specific circumstances on which the appellant relies in her argument are her inability to speak any language other than Spanish, and that she was held in an interrogation room for approximately eight hours without any offer of food or use of a telephone. Furthermore, she contends that she was not given her Miranda warnings immediately before she gave her recorded statement and that she was misled by Zamora that her statement was inconsistent with Kelvin's medical records. She also asserts that she gavethe confession only as a result of a direct threat by Zamora that her daughter would go to prison if she did not confess. Thus, she concludes that the court's failure to suppress the statement was clearly erroneous. We, however, conclude that in view of the totality of the circumstances, the appellant's confession was voluntary.

In the case at bar, there were no threats of physical violence against her or promises of leniency. In addition, appellant, who was at least thirty-two years old, executed a Spanish-version rights-waiver form at the time of the interview. Furthermore, there was no evidence that appellant was denied a request to eat while she was at the police station, and there was evidence that she used a telephone while there.

Additionally, the eight-hour period during which appellant was with either Grill or Zamora does not convincingly demonstrate that her confession was involuntary. As previously stated, appellant came to the police station on her own volition, and there were no indications that she was not free to leave from the time she arrived until the time she gave her confession. She was not placed in handcuffs or otherwise restrained. Furthermore, much of the time following her confession was used to either record or reduce her confession to writing. Accordingly, although such a period of time by itself is troubling, under the facts of this case, we do not conclude that the trial court's decision was clearly erroneous.

Moreover, we cannot conclude that appellant's contention that her confession was coerced by Zamora renders the trial court's decision clearly erroneous. At the suppression hearing, the only evidence that was presented to the trial court on this issue was Zamora's denial that he threatened to arrest any members of appellant's family. Appellant, who ostensibly was theonly one who could testify as to Zamora's alleged threats, did not testify at the hearing. In light of appellant's failure to testify, we do not conclude the trial court erred by denying the suppression motion.

Finally, we are unpersuaded that Zamora's statements concerning Kelvin's medical records render appellant's confession involuntary. In Hood v. State, 329 Ark. 21, 33, 947 S.W.2d 328, 334-335 (1997), our supreme court addressed this issue and stated:

[W]e have held that misrepresentations of fact, while relevant, do not necessarily render an otherwise voluntary confession inadmissible. See Kennedy v. State, 325 Ark. 3, 923 S.W.2d 274 (1996); Tucker v. State, 261 Ark. 505, 549 S.W.2d 285 (1977). In Free v. State, 293 Ark. 65, 732 S.W.2d 452 (1987), we "[found] no fault with an interrogator trying to persuade an accused to tell the truth, even though there may be misrepresentations of fact made by the interrogator, so long as the means employed are not calculated to procure an untrue statement and the confession is otherwise voluntarily made."

Because the record does not demonstrate that Zamora employed means that were calculated to procure an untrue statement and we have determined that the confession was otherwise made voluntarily, we also conclude that the trial court's decision in this regard was not clearly erroneous.

II. Exclusion of evidence

It is well-settled that "the trial court has wide discretion on rulings concerning the admissibility of evidence, and this court will not reverse such a ruling absent an abuse of discretion." Lee v. State, 340 Ark. 504, 512, 11 S.W.3d 553, 558 (2000) (citing Weaver v. State, 324 Ark. 290, 920 S.W.2d 491 (1996); Miller v. State, 280 Ark. 551, 660 S.W.2d 163 (1983)). Appellant contends that the trial court erred by excluding the testimonies of Ramos and Trejos. We address each allegation separately.

a. Ramos - relevancy & impeachment

Appellant first argues that the trial court erred by excluding Ramos's testimony that, according to counsel's offer of proof, Zamora contacted him and tried to get him to influence appellant to change her statement. The State objected to the admission of this testimony on the grounds that it was an irrelevant and collateral issue. Appellant contended that the evidence was indeed relevant and necessary for the jury to properly weigh Zamora's testimony. The trial court sustained the State's objection, reasoning that if appellant had wanted to use this evidence, then she should have presented it during the suppression hearing. On appeal, appellant argues that "this testimony was highly relevant because it contradicted the testimony of Agent Zamora and supported Appellant Garcia's testimony that she was coerced into giving an untrue statement." The State argues that the trial court properly excluded the evidence on the grounds of relevance or, alternatively, because the proffered evidence is inadmissible hearsay. We agree with appellant and reverse.

"Hearsay is not admissible except as provided by . . . these rules." Ark. R. Evid. 802 (emphasis added). An example of such an exception is provided for in Ark. R. Evid. 613,1 whichprovides that evidence admitted pursuant to that Rule may be "inadmissible hearsay as evidence of the facts asserted, [but] they are nevertheless admissible for the limited purpose of impeaching the witness." 1 John W. Strong, McCormick on Evidence § 34, at 125 (5th ed. 1999). Furthermore, it is important to note that the treatment of inconsistent statements in this manner is

confined to the situation in which the statements are introduced for impeachment purposes but may not be used as substantive evidence (over proper objection of the opponent). For this purpose, the making of the previous statements may be drawn out in cross-examination of the witness himself; and at common law if on cross-examination the witness denied making the statement, or failed to remember it, the statement may be proved by another witness. In contrast, under the Federal and Revised Uniform Rules of Evidence the making of the statement may also be brought out by the second witness without prior inquiry during the cross-examination of the witness who made it. This form of impeachment is sometimes called "self-contradiction."

1 Strong, supra § 34, at 126 (emphasis added). If the evidence is inadmissible under another rule, it may nevertheless be admitted for a limited purpose commensurate with Ark. R. Evid. 105.2 See Harris v. State, 36 Ark. App. 120, 123, 819 S.W.2d 30, 31 (1991) (reversed trial court's refusal to instruct jury that hearsay evidence was admitted for the limited purpose ofimpeachment pursuant to Ark. R. Evid. 105, and not to prove the truth of the matter asserted).

On cross-examination at trial, Zamora denied asking Ramos to persuade appellant to change her statement. According to counsel's proffer, Ramos's testimony would have impeached Zamora's prior statement. Accordingly, the admission of the proffered testimony might not be admissible as substantive evidence, but it could be proper self-contradiction impeachment testimony. Furthermore, as impeachment testimony, it would not constitute inadmissible hearsay. Accordingly, we conclude that the trial court's exclusion of this evidence constitutes an abuse of discretion, and, therefore, we reverse and remand.

b. Trejos - Excited Utterance

Lastly, appellant argues that the trial court erred by excluding Trejos's testimony that, according to counsel's offer of proof, concerned statements made by appellant in a telephone conversation between she and Trejos. The State objected to the admission of this testimony on the grounds that it was hearsay, and appellant contended that the testimony constituted an excited utterance because it was made while she remained under the stress of the excitement caused by Zamora's threat to arrest her daughter. The trial court sustained the State's objection. On appeal, appellant argues that this testimony is relevant because the jury had to consider the credibility of both appellant and Zamora. We disagree with appellant and affirm the trial court's determination that Trejos's testimony constituted inadmissible hearsay.

"All relevant evidence is admissible, except as otherwise provided by statute or by these rules. . . ." Ark. R. Evid. 402. For example, "[h]earsay is not admissible except as provided by law or by these rules." Ark. R. Evid. 802. Among the exceptions to the general hearsay rules includes "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." Ark. R. Evid. 803(2). However, "[i]n order to correctly apply this exception, the court must find that there was a startling event and that at the time the utterance was made the declarant was still under the stress of excitement resulting from that event." Skiver v. State, 336 Ark. 86, 95, 983 S.W.2d 931, 936 (1999) (citing Latham v. State, 318 Ark. 19, 883 S.W.2d 461 (1994); Tackett v. State, 12 Ark. App. 57, 670 S.W.2d 824 (1984)).

According to counsel's proffer, the testimony would concern a statement by appellant made approximately one hour after Zamora's alleged threat that he would arrest appellant's daughter. The passage of time alone, however, is not dispositive of whether the statement constitutes admissible hearsay. See, e.g., Fudge v. State, 341 Ark. 759, 769, 20 S.W.3d 315, 320 (2000). "A useful rule of thumb is that where the time interval between the event and the statement is long enough to permit reflective thought, the statement will be excluded in the absence of some proof that the declarant did not in fact engage in a reflective thought process." 2 John W. Strong, McCormick on Evidence § 272, at 125 (5th ed. 1999). The record lacks proof that appellant did not engage in a reflective thought process during the course of the one-hour period since the onset of the stressful event. Accordingly, we do not conclude that the trial court abused its discretion by determining that the testimony did not constitute an excited utterance.

Affirmed in part, reversed in part, and remanded.

ROBBINS, C.J., and NEAL, J., agree.

1 Rule 613 of the Ark. R. Evid., which is identical to Fed. R. Evid. 613, provides:

Examining Witness Concerning Prior Statement. In examining a witness concerning a prior statement made by him, whether written or not, the statement need not be shown nor its contents disclosed to him at that time, but on request the same shall be shown or disclosed to opposing counsel.

Extrinsic Evidence of Prior Inconsistent Statement of Witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to explain or deny the same and the opposite partyis afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in Rule 801(d)(2).

2 Rule 105 of the Ark. R. Evid. states:

Whenever evidence which is admissible as to one [1] party or for one [1] purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.