Eric Epperson and Christopher King v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JUDGE K. MAX KOONCE, II

DIVISION III

ERIC EPPERSON and

CHRISTOPHER KING

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CA CR00-00497

November 15, 2000

APPEAL FROM THE LONOKE COUNTY CIRCUIT COURT

[CR99-15]

HON. LANCE L. HANSHAW

CIRCUIT JUDGE

AFFIRMED

This appeal stems from criminal convictions for armed robbery. The appellants were each found guilty and sentenced to fourteen years in the Arkansas Department of Correction. Five issues are raised on appeal. The first point on appeal pertains solely to appellant Eric Epperson. He appeals the trial court's denial of his motion to transfer the case to juvenile court. Additionally, the appellants Epperson and Christopher King offer two arguments on appeal alleging that the trial court failed to recognize an invalid waiver of their constitutional rights. The appellants further argue that the lower court's failure to limit the State's witnesses, due to a discovery violation, amounted to reversible error. The final issue appealed is the trial court's failure to consider the appellants' motion for mistrial. We affirm.

On the evening of January 22, 1999, the beauty shop owned and operated by Delbert Minton in England, Arkansas, was robbed at gun point. Eric Epperson walked into the shop carrying a small, silver gun and inquired as to where Minton kept the beauty shop proceeds. Minton opened the money drawer and Epperson said "I want your d*** money mother f***** or I will kill you." Mr. Minton handed over approximately $250 in cash and all of the checks in his drawer. A patron of the salon, Ms. Debbie Fisher, had her purse stolen and her life threatened by Christopher King during the robbery.

Officer Nathan Cook interviewed both King and Epperson on January 25, 1999. Epperson signed a rights waiver form and signed a statement written out by Cook. In the statement Epperson admitted to the robbery. A couple of hours later Officer Cook interviewed King. King also initialed each section of the rights waiver form and signed a statement written out by Officer Cook describing the robbery and saying that King and Epperson split the cash and burned the checks. Both King and Epperson attested, by signature, to the fact that the statements were made without threat or coercion. On January 26, 1999, both Epperson and King were interviewed by Officer Eddie Donaho. Again, they each signed waiver forms and statements detailing the events of the robbery. Both statements were written by Donaho and read back to King and Epperson. Donaho witnessed each of them signing the statement.

Both of the appellants' statements and waiver forms were admitted into evidence over their objection. In the suppression hearing, the appellants testified that they believed the waiver form merely advised them of their rights, and their signature represented an understanding of those rights as opposed to an actual waiver of the rights.1 The appellants also argued that their statements should

be suppressed because: 1) the statements were actually written by police officers and after the officers authored the statements the appellants were coerced and induced to sign the statements with a promise of probation, and 2) the second statements were signed by the appellants after they hadbeen in custody in excess of twenty-four hours.

Finally, during voir dire, one of the potential jurors was excused after recounting the details of a time that she was robbed and of the trauma she suffered following the robbery. The appellee referred to the dismissed juror during closing argument. The appellants objected and received a cautionary instruction stating "ladies and gentlemen, let me caution you that what Ms. Pack, a fellow juror, a prospective juror, said this morning is not evidence and cannot be treated as such by you as evidence." After closing arguments were complete, the jury instructions were delivered by the trial judge and the jurors retired to the jury room to deliberate, and the appellants moved for a mistrial arguing that the cautionary instruction was insufficient. The trial judge denied the motion, ruling that the motion was made "too late."

First, Epperson appeals the trial court's denial of his motion to transfer the case to juvenile court. Epperson was sixteen at the time of the offense. The trial judge declined appellant Epperson's request to transfer his case to juvenile court and made comments from the bench that he was familiar with Epperson and he had been given numerous opportunities in the past and had failed to improve and therefore would be tried in circuit court. The appellee correctly contends that this issue is procedurally barred because the denial of a motion to transfer to juvenile court must be raised in an interlocutory appeal, instead of upon direct appeal.

In Hamilton v. State, 320 Ark. 346, 350, 896 S.W.2d 877, 880 (1995), our supreme court held that "for criminal prosecutions commenced after the finality of this opinion, an appeal from an order granting or denying transfer of a case from one court to another having jurisdiction over juvenile matters must be considered by way of interlocutory appeal, and an appeal from such an order after a judgment of conviction in circuit court is untimely and will not be considered." Because this case was commenced after May 1, 1995, the procedural bar annunciated in Hamiltonapplies, and this point will not be considered on appeal. See also, Sanford v. State, 331 Ark. 334, 962 S.W.2d 335 (1998).

Next we consider the appellants' contention that the denial of their motions to suppress at the pretrial suppression hearing was reversible error. We will review the validity of the appellants' Miranda waiver of rights under a totality of the circumstances test, Sanford, supra, and make our determination after consideration of the circumstances surrounding the waiver, including the accused's age, education, background, and intelligence. See id at 346. We use these factors as our guide to determine whether the appellants waived their rights "with the full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." Id., (quoting State v. Bell, 329 Ark. 422, 948 S.W.2d 557 (1997)). Also, by merely answering questions, one may waive by implication his right to remain silent. Bangs v. State,338 Ark. 515, 998 S.W.2d 738 (1999).

Both Epperson and King twice read, initialed and signed a Miranda waiver form twice and affirmatively responded to each of the six questions on the waiver form. The record fully supports the trial court's finding that the appellants' waiver of rights was valid and the subsequent denial of the appellants' suppression motion.

Mixed into the appellants' Miranda waiver argument is a question relating to the voluntariness of the confessions made during the police interrogation. Generally, a custodial confession is presumed to be involuntary, and the burden is on the State to show that the statement was made voluntarily, knowingly and intelligently. Hood v. State, 329 Ark. 21, 947 S.W.2d 328 (1997). We will determine the voluntariness of a confession by performing a totality of the circumstances review, considering the following factors: age, education, and intelligence of the accused, lack of advice as to his constitutional rights, length of detention, the repeated and prolongednature of questioning, the use of physical punishment, statements made by the interrogating officer and the vulnerability of the defendant. Id.(citing Kennedy v. State, 325 Ark. 3, 923 S.W.2d 274 (1996) and Oliver v. State, 322 Ark. 8, 907 S.W.2d 706 (1995)).

Each appellant signed two statements outlining their respective culpability and version of events before, during, and after the robbery. Both Officers Cook and Donaho testified that they made no coercive remarks or promises of probation in exchange for the signed confession statements. The court has every right to believe the officers over the appellants. We are also not persuaded by appellants' assertion that the length of time they were in custody is enough to render their statements involuntary. There is no direct testimony in the record indicating how long appellants were in custody, nor is there precedent offered establishing that length of time in custody alone will invalidate a statement.

Next, we consider the appellants' assertion that the trial court failed to properly remedy the appellee's discovery violation. Arkansas Rules of Criminal Procedure 17.1 imposes on the prosecutor a duty to disclose information in sufficient time to permit the defense to make a beneficial use of it. Rychtarik v. State, 334 Ark. 492, 976 S.W.2d 374 (1998). A failure to comply with this disclosure requirement may be cured by granting a continuance or by recessing the trial until defense counsel can have an adequate interview with the witnesses. Id. However, absent a showing of prejudice, an appellate court will not find a reversible discovery violation. Id.

The appellants provide no evidence supporting prejudice due to a discovery error. The record indicates that no unexpected witness was called, and appellants did not object to any witness based on surprise, nor did they ask for a continuance to become more prepared. The trial court did not err in refusing to dismiss any of the appellee's witnesses.

The last issue we consider is the trial court's denial of the appellants' mistrial motion. Sincethe appellants did not object to the substance of the court's cautionary instruction at the time it was given, they obtained all of the relief requested at the time the matter arose. See Stephens v. State, 328 Ark. 81, 941 S.W.2d 411 (1997); Edwards v. State, 315 Ark. 126, 864 S.W.2d 866 (1993). Further, the trial court correctly denied the appellants' mistrial motion because it was not raised in a timely fashion. A mistrial motion must be raised at the first possible opportunity. Smith v. State, 330 Ark. 50, 953 S.W.2d 870 (1997). The appellee correctly cites Leaks v. State, 339 Ark. 348, 5 S.W.3d 448 n.1 (1999), for the proposition that a motion for mistrial based on improper argument is untimely raised when it is made after closing argument and out of the presence of the jury. Here, the appellants did not make the motion until the jury had retired, and the trial judge correctly found the motion to be untimely.

Affirmed.

Stroud and Griffen, JJ., agree.

1 We note with disapproval that the England Police Department has promulgated a form that attempts to summarize and restate the criminal defendant's Miranda right to counsel. There is no need to deviate from or to reinvent the well-accepted Miranda language with regard to the right of counsel.