Danny Eugene Marchant v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

DANNY EUGENE MARCHANT

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR05-38

November 9, 2005

APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT

[CR04-1087-2]

HON. KIM MARTIN SMITH, CIRCUIT JUDGE

AFFIRMED

Larry D. Vaught, Judge

Appellant Danny Marchant appeals from the judgment and commitment order filed December 9, 2004, sentencing him to twenty years in prison following his entry of a conditional guilty plea to second-degree murder. He argues on appeal that the trial court erred in refusing to suppress statements he made to law enforcement authorities in Minnesota and Arkansas and an amended autopsy report of the murder victim. We disagree and affirm.

Marchant was admitted to Regions Hospital in St. Paul, Minnesota, on May 17, 2004, after attempting to commit suicide. When he arrived at the hospital, Marchant agreed to stay as a voluntary patient. However, his medical records note that if he had changed his mind, he was to be held involuntarily for seventy-two hours. During his stay at Regions, Marchant's medical records indicate: that he had been homeless and "living off the land"; that he was a diagnosed schizophrenic and had been off his medications for about a month; that he reported hearing voices and believed "the military" was after him; that he acknowledged attempting suicide on previous occasions; that he appeared anxious and possibly delusional; that he disclosed that he was an alcoholic and that he had suffered blackouts in the past; and that his judgment was severely impaired. The medical records also note that Marchant told medical personnel that he had committed a murder; that he wanted to tell the police about it to "get it off his chest"; and that he was attempting to jump off the bridge because of the guilt he felt.

While a patient at Regions, Marchant telephoned Detective Thomas Bergren of the St. Paul Police Department on May 25, 2004. Bergren testified that Marchant said that he wanted to "talk about a murder" and asked that Bergren come to the hospital to speak with him. Bergren testified that he went to the hospital that same day and that Marchant told him that he had committed a murder in Springdale, Arkansas, around Thanksgiving 1998. Bergren stated that Marchant said that he had killed a woman in her forties that lived upstairs from him. Marchant told Bergren that the murder was a heavy burden that he was trying to get off his chest. Bergren testified that he did not use force or threats to get Marchant to talk and that Marchant never asked to leave or stop the conversation. Bergren stated that Marchant appeared to understand what he was doing. Bergren did not arrest Marchant immediately but went back to police headquarters to investigate whether a crime had been committed as Marchant described. Bergren stated that he contacted Detective Bryan Johnson of the Springdale Police Department who told him that an open case seemed to match Marchant's description, except it was about a year off time-wise. Johnson asked Bergren to go back to the hospital and talk with Marchant to see if he would give a statement. When Bergren returned to the hospital, Marchant stated that he wanted to talk about the incidentbut that he thought he would need an attorney. Bergren left the hospital and informed Johnson of the situation.

Detective Johnson then sought and received an arrest warrant for Marchant, who was to be extradited to Arkansas. On June 3, 2004, Bergren arrested Marchant for that purpose. Bergren testified that he did not question Marchant at that time but that Marchant indicated that he was interested in talking about the murder. Bergren told Marchant that he would need to speak to Johnson because he was now in charge. Marchant did not request an attorney at that time, and Bergren stated that Marchant appeared remorseful and reserved. Bergren called Johnson and told him that Marchant had again expressed a desire to talk about the crime.

After Marchant had been extradited to Arkansas, Johnson met with Marchant at the jail on June 15, 2004. Johnson stated that he did so because he was under the impression that Marchant wanted to discuss the murder. Johnson first approached Marchant in the courtyard of the police department. Johnson testified that he did not interrogate Marchant in the courtyard regarding the murder. Instead, Johnson asked Marchant about his flight to Arkansas and his family. Johnson told Marchant that if he wanted an opportunity to discuss the murder, now was a time he could do so. Johnson explained the process to Marchant, including that he would have certain rights, such as having an attorney present. Johnson then took Marchant into an interview room and advised him of his rights. Marchant signed a written waiver form and confessed to the murder. Johnson testified that Marchant's demeanor during the confession was "levelheaded" and that Marchant expressed several times that he wanted to "make this right" and relieve himself of a "heavy burden." At the hearing, Johnson denied that his conversation with Marchant in the courtyard was with the intention to convince him to talk without an attorney, although he admitted that he told Marchant that an attorney would probably advise him to remain silent.

On appeal, Marchant argues that the trial court erred in refusing to suppress his statements to Detective Bergren and Detective Johnson and contends that those statements were obtained in violation of his constitutional rights under the federal and Arkansas constitutions. As they apply to confessions, the Fourth Amendment protects against unreasonable searches and seizures, the Fifth Amendment protects against self-incrimination while in custody and requires certain warnings upon seizure, and the Sixth Amendment provides a right to counsel once the judicial process has begun. See Fellers v. United States, 540 U.S. 519 (2004); Miranda v. Arizona, 384 U.S. 436 (1966). However, these rights can be waived. Article 2 sections 8, 10, and 15 of the Arkansas Constitution provide similar protections in the context of confessions and are construed similarly to their federal counterparts. See Flowers v. State, __ Ark. __, __ S.W.3d __ (May 5, 2005).

This court reviews a trial court's ruling on a motion to suppress and the voluntariness of a confession by making an independent determination based upon the totality of the circumstances, reversing only if it is clearly against the preponderance of the evidence. Baker v. State, __ Ark. __, __S.W.3d __ (Sept. 29, 2005). We defer to the superior position of the trial judge to evaluate the credibility of witnesses who testify at a suppression hearing. Dickerson v. State, __ Ark. __, __ S.W.3d __ (Oct. 6, 2005). A statement made while in custody is presumed involuntary, and the burden is on the State to prove by a preponderance of the evidence that a custodial statement was given voluntarily and was knowingly and intelligently made. Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003).

In resolving the question of whether a suspect was "in custody" at a particular time, the relevant inquiry is how a reasonable man in the suspect's shoes would have understood his situation. State v. Spencer, 319 Ark. 454, 892 S.W.2d 484 (1995). The initial determination of custody depends on the objective circumstances of the interrogation, not onthe subjective views harbored by either the interrogating officers or the person being interrogated. Id. at 457, 892 S.W.2d at 486.

The Fifth Amendment requirement that certain rights be enumerated to the suspect during a custodial interrogation is not implicated where the statements are spontaneous. Miranda, 384 U.S. at 478. "There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make." Id.

Once a defendant invokes his Fifth Amendment right to counsel at a custodial interrogation, the police may not interrogate any further until counsel is provided, or the defendant initiates further communication. Michigan v. Jackson, 475 U.S. 625 (1986); Davis v. State, 330 Ark. 76, 953 S.W.2d 559 (1997). However, once the defendant initiates further communication, exchanges, or conversations with the police, any resulting statement may be admissible. Edwards v. Arizona, 451 U.S. 477 (1981). In Edwards, the Supreme Court held that an accused, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police. The definition of interrogation can extend only to words or actions on the part of the police officers that they should have known were reasonably likely to elicit an incriminating response. Rhode Island v. Innis, 446 U.S. 291 (1980). In Oregon v. Bradshaw, 462 U.S. 1039 (1983), the Supreme Court stated that the admissibility of a confession given by a defendant who earlier invoked his Miranda right to counsel is to be determined by a two-step analysis. First, it must be asked whether the defendant "initiated" further conversation. If it is found the defendant initiated further conversation, it must then be inquired whether the defendant waived his right to counsel, that is whether the purportedwaiver is knowing and intelligent under the totality of the circumstances, including the necessary fact that the accused, not the police, reopened the dialogue with the authorities. See also Smith v. Illinois, 469 U.S. 91 (1984); Dillard v. State, 275 Ark. 320, 629 S.W.2d 291 (1982).

With regard to Marchant's statements made to Detective Bergren, we affirm the trial court's denial of the motion to suppress because Marchant made the statement voluntarily while he was not in custody. Although Marchant was residing on the psychiatric ward of the hospital at the time he made the statement, he was there voluntarily and was not in police custody. Marchant called Detective Bergren and asked to talk to him regarding a crime. When he questioned Marchant, Bergren did not know whether Marchant was a witness or a perpetrator, or even if a crime had been committed. Because Marchant was not in police custody at the time, Detective Bergren was not required to give Marchant Miranda warnings before talking with him. Marchant's statement was spontaneous and not protected by the Fifth Amendment.

We also affirm the denial of the motion to suppress with regard to Marchant's statements to Detective Johnson. Once Marchant was extradited to Arkansas, he was clearly in police custody and certain constitutional rights applied, including Marchant's right to counsel. However, even though Marchant had initially asked for an attorney, he initiated further contact with police during his extradition to Arkansas, and the resulting statement is admissible. During the extradition, Marchant told Bergren that he wanted to talk with someone regarding the murder to "get it off his chest" and did not ask for an attorney. Bergren told Marchant that he would need to speak to the new detective in charge, told Johnson about this conversation with Marchant, and once Marchant was transferred to Arkansas, Johnson accommodated Marchant's request to talk to authorities.

Marchant also argues that even if he did further initiate communication with the police making his statements admissible, he did not voluntarily and intelligently waive his right to counsel. He argues that there is plenty of evidence to point to his inability to consent-including that he had been a patient in a mental ward and that he had previously attempted to commit suicide after hearing voices in his head.

In order to determine whether a waiver of Miranda rights is voluntary, knowing, and intelligent, we look to see if the confession was "the product of free and deliberate choice rather than intimidation, coercion, or deception." Grillot, 353 Ark. at 310-11, 107 S.W.3d at 145. When reviewing the trial court's ruling, we make an independent determination based upon the totality of the circumstances surrounding the waiver including the age, education, and intelligence of the accused; the lack of advice as to his constitutional rights; the length of the detention; the repeated and prolonged nature of the questioning; the use of mental or physical punishment; and statements made by the interrogating officers and the vulnerability of the defendant. Flowers, supra. In Rushing v. State, 338 Ark. 277, 992 S.W.2d 789 (1999), and Rankin v. State, 338 Ark. 723, 985 S.W.2d 316 (1999), our supreme court held that while a low I.Q. score, age, and mental capacity are factors, standing alone they are not sufficient to suppress a confession. So long as there is no evidence of coercion, a statement made voluntarily may be admissible against the accused. Flowers, supra.

In the present case, Marchant signed the waiver and consent form and verbally stated that he did not "want to have an attorney right now" before Johnson interrogated him regarding the murder. No evidence was presented that Marchant was hearing voices at the time he waived his right to counsel on June 15, 2004. The confession was given almost a month after Marchant had arrived at Regions Hospital and placed back on medications. There is no evidence that he appeared incoherent or delusional at the time he spoke with Johnson.To the contrary, Detective Johnson stated that Marchant appeared "levelheaded" and lucid. The record illustrates no evidence of coercion or pressure from Johnson-rather, it appears the detective tried to make Marchant as comfortable as possible.

Under the totality of the circumstances, we cannot say it was clearly erroneous for the trial judge to allow Marchant's statements made to Detective Bergren and Detective Johnson into evidence.

Marchant also argues that the trial court erred in not suppressing an amended autopsy report showing the victim's cause of death as strangulation. The original autopsy report listed the manner of death as undetermined, but Marchant argues that after he confessed, the manner of death was changed. However, neither the original nor the amended autopsy report were introduced into evidence or proffered below, and they are not part of the record on appeal. Therefore, because neither autopsy report was ever introduced, Marchant cannot demonstrate that he was prejudiced by the alleged change. See Simpson v. State, 339 Ark. 467, 6 S.W.3d 104 (1999).

Affirmed.

Griffen and Roaf, JJ., agree.