Kennedy v. State

Heath KENNEDY v. STATE of Arkansas

CR 95-711                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered June 3, 1996


1.   Criminal law -- accomplice liability. -- A defendant may
     properly be found guilty not only of his own conduct, but also
     of the conduct of his accomplice; when two or more persons
     assist one another in the commission of a crime, each is an
     accomplice and criminally liable for the conduct of both;
     there is no distinction between principals on the one hand and
     accomplices on the other insofar as criminal liability is
     concerned.

2.   Evidence -- evidence against appellant properly considered --
     no error found. -- In view of the testimony showing that
     appellant participated in the planning of the robbery and
     murder, including his purchase of ammunition for the pistol
     used by his accomplice, his presence at the scene during the
     commission of the crime, his participation in attempting to
     dispose of the VCR after the shooting, and his admission to a
     friend of having committed the crime, it was not error to
     allow the jury to consider the evidence against appellant.

3.   Criminal law -- voluntariness of custodial confessions --
     burden of proof. -- The State has the burden of proving by a
     preponderance of the evidence that a custodial confession or
     inculpatory statement was given voluntarily and was knowingly
     and intelligently made.

4.   Criminal law -- validity of criminal defendant's waiver of
     right to remain silent -- components considered. --
     Consideration of the validity of a criminal defendant's waiver
     of the right to remain silent and the right to counsel prior
     to giving an inculpatory statement may be divided into two
     components: the first component is the voluntariness of the
     waiver, and it concerns whether the accused has made a free
     choice, uncoerced by the police, to waive his rights; the
     second component involves whether the defendant made the
     waiver knowingly and intelligently, and the inquiry then
     focuses on determining if the waiver was made with a full
     awareness of both the nature of the right being abandoned and
     the consequences of the decision to abandon it; the court must
     also decide if the confession or inculpatory statement, given
     after a waiver of rights has occurred, was itself voluntarily
     made.  

5.   Criminal law -- voluntariness of confessions -- factors on
     review. -- When reviewing the voluntariness of confessions,
     the appellate court makes an independent determination based
     on the totality of the circumstances and reverses the trial
     court only if its decision was clearly erroneous; in
     determining whether a confession was voluntary, the appellate
     court considers the following factors: the age, education, and
     intelligence of the accused; the lack of advice concerning his
     constitutional rights; the length of detention; the repeated
     and prolonged nature of questioning; or the use of physical
     punishment; two other pertinent factors in considering the
     totality of the circumstances are the statements made by the
     interrogating officer and the vulnerability of the defendant. 

6.   Criminal law -- voluntariness of confession -- youth alone
     insufficient reason to exclude confession. -- Although youth
     is a factor, it alone is not a sufficient reason to exclude a
     confession.  

7.   Criminal law -- custodial confession voluntary -- trial court
     did not err in admitting evidence of appellant's statement. --
     Where there was no question that appellant was of age and had
     waived his rights after being informed that the investigation
     was about the homicide; where appellant was in the eleventh
     grade and could read and write; where there was no suggestion
     that appellant did not understand his situation; where there
     were no threats of violence or promises of leniency; where
     appellant had been asked about possession of a pistol on the
     day before he went in for questioning and thus shouldn't have
     been too surprised when that topic arose; where he was
     questioned for less than two hours; where there was no
     suggestion that he asked to be represented by an attorney; and
     where appellant's inculpatory statement was made at his own
     instance after it appeared that his interview at the police
     station would end with his denials, the statement was found to
     be voluntary; the totality of the circumstances surrounding
     the taking of the confession was such that the trial court
     properly admitted evidence of the statement; the trial court
     was entitled to rely on the testimony of the detective that
     The statement was volunteered without prompting.  
     Appeal from Union Circuit Court; John M. Graves, Judge;
affirmed.
     Didi Sallings, Executive Director, Arkansas Public Defender
Commission, by:  Elizabeth S. Johnston, for appellant.
     Winston Bryant, Att'y Gen., by:  Clint Miller, Deputy Att'y
Gen., Sr. Appellate Advocate for appellee.

     David Newbern, Justice.June 3, 1996   *ADVREP*SC2*


                                   CR95-711
HEATH KENNEDY                      Opinion Delivered:

          Appellant                Appeal from Union Circuit
                                   Court (CR-94-55)
     v.
                                   Honorable John M. Graves,
STATE OF ARKANSAS                  Circuit Judge

          Appellee                 Affirmed





                     David Newbern, Justice.


     Heath Kennedy stands convicted of capital murder and sentenced
to life imprisonment without parole.  He argues that the evidence
was insufficient to have been permitted to go to the jury, thus his
motion for directed verdict should have been granted.  He also
contends a statement given by him to the police should have been
suppressed.  We affirm the conviction because the evidence was not
only sufficient but overwhelming and the State has shown that the
statement was knowingly and voluntarily given.
     Testimony at the trial revealed these undisputed facts.  On
March 5, 1994, Heath Kennedy, age 18, and Wade Miller, age 16,
entered the Subway Sandwich Shop in El Dorado.  Mr. Miller produced
a .25 caliber pistol and pointed it at the cashier, who was the
only employee in the store.  The cash register was emptied and the
cashier, 21 year old Leona Cameron, was shot twice in the head. 
The shooting was done by Mr. Miller who had gone over the counter
and taken Ms. Cameron to the storage area in the rear of the store. 
     After killing Ms. Cameron, Mr. Miller called Mr. Kennedy to
the rear of the store.  He was having trouble getting the video
tape out of the video cassette recorder (VCR) which was connected
to the store security camera.  The two young men left the store
with the VCR which they dumped in a "mud hole" at Calion.  Although
the VCR and the tape it contained had been under water for days,
still pictures taken from the tape after enhancement by the FBI
clearly showed the young men in the store at 9:52 p.m. on the night
of the murder.

                 1. Sufficiency of the evidence
     Arkansas Code Ann.  5-10-101 (Repl. 1993) provides in part:

     (a) A person commits capital murder if:
     (1) Acting alone or with one (1) or more other persons,
     he commits or attempts to commit ... robbery, ... and in
     the course of and in furtherance of the felony, or in
     immediate flight therefrom, he or an accomplice causes
     the death of any person under circumstances manifesting
     extreme indifference to the value of human life; or
                               ***
     (4) With the premeditated and deliberated purpose of
     causing the death of another person, he causes the death
     of any person; 
                               ***
     (b) It is an affirmative defense to any prosecution under
     subdivision (a)(1) of this section for an offense in
     which the defendant was not the only participant that the
     defendant did not commit the homicidal act or in any way
     solicit, command, induce, procure, counsel, or aid in its
     commission.

     As Mr. Kennedy did not do the shooting, his argument is that
his responsibility could only be that of an accomplice.  Arkansas
Code Ann.  5-2-403(a) (Repl. 1993) provides:
 
          A person is an accomplice of another person in the
     commission of an offense if, with the purpose of promoting or
     facilitating the commission of an offense, he:
          (1) Solicits, advises, encourages, or coerces the other
     person in planning or committing it; or 
          (2) Aids, agrees to aid, or attempts to aid the other
     person in planning or committing it; or
          (3) Having a legal duty to prevent the commission of the
     offense, fails to make proper effort to do so.

     In the statement he gave to the El Dorado police, Mr. Kennedy
said he did not know Mr. Miller had the pistol in his possession
when they entered the store and that he protested strongly when Mr.
Miller pulled it out and pointed it at Ms. Cameron.  There is,
however, strong evidence that Mr. Kennedy did know the gun would be
used and that he helped plan and execute the robbery and murder and
thus was an accomplice.
     Ricky Church testified he saw Mr. Kennedy give the gun to Wade
Miller, and was with Mr. Kennedy when he attempted to purchase
ammunition for the gun.  Darla Chance, a firearms dealer, stated
that Mr. Kennedy purchased a magazine for the pistol several months
prior to the murder.  She also corroborated the testimony of Mr.
Church that Mr. Kennedy attempted to purchase ammunition from her
on March 4, 1994, the day before the murder.  As he was under 21,
he was not allowed to purchase the ammunition.
     David Crawford testified that Mr. Kennedy asked him to
purchase a box of .25 caliber ammunition.  He stated that Mr.
Kennedy drove him to Wal-Mart where he bought the shells for Mr.
Kennedy the day before the shooting.
     John Bennefield testified he saw Mr. Miller and Mr. Kennedy
with the pistol on the evening of the murder.  He stated that he
saw Mr. Miller "wiping down shells with a rag in his lap." 
According to Mr. Bennefield, when he asked them what they were
going to do he was told, "Don't worry about it."  
     Jason Jackson told the jury he saw Mr. Kennedy and Mr. Miller
about 8:00 p.m. on the night of the murder.  According to his
testimony, they brought up the idea of robbing a store and asked
him if he would like to be the getaway driver for them.  Mr.
Jackson testified they told him they got the idea from the movie,
Menace II Society, which, in the opening scene, depicts the robbery
of a store, the killing of the cashier, and the removal of the
videotape.  Mr. Jackson testified the two told him they were going
to rob the Subway Sandwich Shop because it would not be very
crowded.  
     Mr. Jackson further testified that he saw Mr. Kennedy the day
after the murder and that Mr. Kennedy showed him a newspaper
reporting the crime and told him that he and Wade Miller had done
it.  Mr. Kennedy told him they went to the store but people were
there.  When they returned about ten minutes later, Wade pulled his
gun, and demanded the money.  Mr. Jackson stated that Mr. Kennedy
said he grabbed the money while Miller took the young woman to the
back.  Mr. Kennedy told Jason that he heard three shots, then,
after the fourth shot, he heard the victim scream "Oh God."  He
then went to the back room and helped get the VCR.
     A defendant may properly be found guilty not only of his own
conduct, but also the conduct of his accomplice.  Purifoy v. State,
307 Ark. 482, 822 S.W.2d 374 (1991).  When two or more persons
assist one another in the commission of a crime, each is an
accomplice and criminally liable for the conduct of both.  Parker
v. State, 265 Ark. 315, 578 S.W.2d 206 (1979).  There is no
distinction between principals on the one hand and accomplices on
the other, insofar as criminal liability is concerned.  Purifoy v.
State, supra.  
     In view of the testimony showing that Mr. Kennedy participated
in the planning of the robbery and murder, including his purchase
of ammunition for the pistol used by Mr. Miller, his presence at
the scene during the commission of the crime, his participation in
attempting to dispose of the VCR after the shooting, and his
admission to a friend of having committed the crime, we conclude it
was not error to allow the jury to consider the evidence against
Mr. Kennedy.

                    2.  Involuntary statement
     Mr. Kennedy moved to suppress evidence of an inculpatory
statement he made to Lt. Carolyn Dykes and Detective James Morrow
of the El Dorado Police Department.  At a hearing on the motion,
the testimony of the officers revealed the following.  
     Detective Morrow had once been married to an aunt of Mr.
Kennedy and had close ties with the Kennedy family until he and the
aunt were divorced some five years ago.  He had, during the time of
that marriage, been Heath Kennedy's baseball coach as well.  On
Monday, March 7, 1994, Detective Morrow went with another officer
to the Kennedy home to speak to Heath Kennedy about the
disappearance of Joe Johnson, about information that Mr. Kennedy
had been seen with a gun, and about the Subway store murder.  Mr.
Kennedy denied knowledge of any of the three.
     On March 8, 1994, Detective Morrow called Mr. Kennedy and
asked if he could come to the police station to discuss the
disappearance of Joe Johnson and bring Wade Miller with him.  Mr.
Kennedy agreed.  Shortly thereafter, Mr. Kennedy's mother called
Detective Morrow to ask what was going on.  Detective Morrow told
her he was having a group of young people come in to discuss Joe
Johnson's disappearance.  He did not mention the Subway robbery and
homicide.
     Mrs. Kennedy arrived at the police station with Heath and Wade
Miller late the afternoon of March 8, 1994.  She and Heath were
taken to a room by Lt. Dykes.  Detective Morrow was present.  Lt.
Dykes had learned of Detective Morrow's previous family
relationship with the Kennedys and had informed her superior that
she would take the lead in the interview.  She presented Heath
Kennedy a waiver of rights form which stated the interview was to
be about the homicide at the Subway store and the missing juvenile,
Joe Johnson.  The form had a place for the person executing it to
state his date of birth.  When Heath Kennedy informed Lt. Dykes of
his date of birth, indicating that he was 18 years old, Lt. Dykes
asked Mrs. Kennedy to leave the room.  Mrs. Kennedy objected.  She
testified Lt. Dykes told her the law required that she leave.  Mrs.
Kennedy went into the hallway and was then asked to move further
away, which she did.  
     Heath Kennedy admitted that he had a gun and had been with
Wade Miller on the night of the murder.  He denied knowledge of Joe
Johnson's disappearance and of the Subway robbery and the murder of
Ms. Cameron.  Lt. Dykes testified she assumed there was no further
information to be obtained from him at that time, so she left the
room to report that fact to her superior.  At that point, Detective
Morrow told Mr. Kennedy it would break his parents' hearts to learn
that he was running around with a gun.  Shortly thereafter, Mr.
Kennedy asked if he could tell Detective Morrow something and have
his "name kept out of it."  Morrow replied he could make no
promises, but asked, "What's on your mind?"  Heath Kennedy then,
according to Detective Morrow, admitted "his complicity or his part
in the Subway incident."  Lt. Dykes returned to the room and took
a full statement from him in which he gave the details of the
robbery, the shooting, and the attempt to dispose of the VCR, but
said he did not know Miller had the gun and that he urged him not
to use it.
     Mr. Kennedy makes no claim that he was in any way coerced into
making his statement to the police.  His argument is that his
statement should have been suppressed because of the "underhanded
and deceitful" conduct on the part of a man he knew as "Uncle
Jamie" and trusted to treat his statement as confidential.  There
is a suggestion that, had Mrs. Kennedy not been lied to about the
nature of the investigation, she would not have permitted Heath to
go to the police station without an attorney.  He claims the VCR
and the tape it contained as well as the gun recovered from beneath
Wade Miller's grandparents' front porch should have been suppressed
as fruit of the poisonous tree.
     The State has the burden of proving by a preponderance of the
evidence that a custodial confession or inculpatory statement was
given voluntarily, and was knowingly and intelligently made. 
Phillips v. State, 321 Ark. 160, 900 S.W.2d 526 (1995).
Consideration of the validity of a criminal defendant's waiver of
the right to remain silent and the right to counsel prior to giving
an inculpatory statement may be divided into two components.  Clay
v. State, 318 Ark. 122, 883 S.W.2d 822 (1994).  The first component
is the voluntariness of the waiver, and it concerns whether the
accused has made a free choice, uncoerced by the police, to waive
his rights.  The second component involves whether the defendant
made the waiver knowingly and intelligently, and the inquiry then
focuses on determining if the waiver was made with a full awareness
of both the nature of the right being abandoned and the
consequences of the decision to abandon it. Id.  We must also
decide if the confession or inculpatory statement, given after a
waiver of rights has occurred, was itself voluntarily made.  
     When reviewing the voluntariness of confessions, we make an
independent determination based on the totality of the
circumstances and reverse the trial court only if its decision was
clearly erroneous.  Rucker v. State, 320 Ark. 643, 899 S.W.2d 447
(1995).  In determining whether a confession was voluntary, the
Court considers the following factors: age, education, and
intelligence of the accused, lack of advice as to his
constitutional rights, length of detention, repeated and prolonged
nature of questioning, or the use of physical punishment.  Oliver
v. State, 322 Ark. 8, 907 S.W.2d 706 (1995);  Smith v. State, 286
Ark. 247, 691 S.W.2d 154 (1985);  Barnes v. State, 281 Ark. 489,
665 S.W.2d 263 (1984).   Two other pertinent factors in considering
the totality of the circumstances are the statements made by the
interrogating officer and the vulnerability of the defendant. 
Oliver v. State, supra; Free v. State, 293 Ark. 65, 732 S.W.2d 452
(1987).
     As Mr. Kennedy does not claim that the officers threatened him
or induced him with promises of leniency, or that there was an
unduly long or otherwise oppressive interrogation, the
voluntariness of the statement hinges on his claim of
vulnerability.  Mr. Kennedy's claim of vulnerability is based
primarily on his youth, his relationship of trust with Detective
Morrow, and the fact that he and his mother were misled initially
as to the scope of the interview in which he ultimately inculpated
himself.
     Although youth is a factor, it alone is not a sufficient
reason to exclude a confession.  Misskelley v. State, 323 Ark. 449,
915 S.W.2d 702 (1996);  Oliver v. State, supra.  Mr. Kennedy was
over eighteen years of age, thus his mother's consent was not
required for a waiver of his right to counsel.  Ark. Code Ann.  9-
27-317 (Repl. 1993).    
     The only authority cited by Mr. Kennedy in support of his
argument on this point consists of Free v. State, supra, and Davis
v. State, 275 Ark. 264, 630 S.W.2d 1 (1982).  Those cases recite
the general law on voluntariness but do not help with the facts of
this case.  Wong Sun v. United States, 371 U.S. 471 (1963), is
cited for the "fruit of the poisonous tree" doctrine regarding the
VCR and the gun.
     For the proposition that the police "may make
misrepresentations of fact so long as the officer does not coerce
the suspect and does not make promises of leniency, so long as the
suspect's in-custodial statement is otherwise freely and
voluntarily make, with the suspect having been previously informed
of his so-called Miranda rights" the State cites Gardner v. State,
263 Ark. 739, 569 S.W.2d 74 (1978) cert. denied 440 U.S. 911
(1979), and Tucker v. State, 261 Ark. 505, 549 S.W.2d 285 (1977). 
     In the Gardner case, we held there was no error in admitting
evidence of an inculpatory statement when there was a factual
dispute of whether the defendant and his father had been misled by
police officers about whether the statement could be withdrawn if
he later obtained an attorney.  Here we have no factual dispute
about whether Mrs. Kennedy and Heath Kennedy were misled or the
degree to which they were misled.  
     More relevant is the Tucker case, in which there was evidence
that a police officer had led the 16-year-old defendant to believe
physical evidence that he had killed his mother was stronger than
it was.  The officer went so far as to refer to the misleading as
a "ruse" and a "con."  There was also evidence that the officer had
become a "dutch uncle" to the defendant.  In our opinion holding
these facts did not make the statement involuntary we cited Frazier
v. Cupp, 394 U.S. 731 (1969).  There the Supreme Court dealt with
a case in which a defendant was falsely told by an interrogator
that another had confessed that he and the defendant had committed
a crime.  The interrogator further misled the defendant when the
defendant suggested he might get in more trouble if he said more
without a lawyer's guidance.  The interrogator misled him by saying
that he could not be in any more trouble than he was already.  The
Supreme Court held the misrepresentation about the confession was
relevant but not sufficient to make an otherwise voluntary
confession inadmissible.
     In this case, there is no question Mr. Kennedy was of age and
waived his rights after being informed the investigation was about
not only the disappearance of Joe Johnson but the homicide of Ms.
Cameron as well.  Although Mr. Kennedy was described at one point
as mildly retarded in connection with an academic evaluation, he
was in the eleventh grade and could read and write.    
     There is no suggestion that Mr. Kennedy did not understand his
situation.  There were no threats of violence or promises of
leniency.  He had been asked about possession of a pistol on the
day before he went in for questioning; thus, he shouldn't have been
too surprised when that topic arose.  He was questioned for less
than two hours.  There is no suggestion that he asked to be
represented by an attorney.  His inculpatory statement was made at
his own instance after it appeared that his interview at the police
station would end with his denials.  Given these circumstances, we
cannot say the statement was involuntary.  
     The totality of the circumstances surrounding the taking of
the confession in this case is such that we cannot say the Trial
Court erred in admitting evidence of the statement.  The Trial
Court was entitled to rely on the testimony of Detective Morrow
that the statement was volunteered without prompting.  Everett v.
State, 316 Ark. 213, 871 S.W.2d 568 (1994).

                         3. Rule 4-3(h)
     In accordance with Arkansas Supreme Court Rule 4-3(h), the
record of trial has been examined for rulings adverse to the
defendant on objections, motions, and requests by either party, and
we find no reversible error.
     Affirmed.
     Dudley, J., not participating.