Landrum v. State

Larry LANDRUM v. STATE of Arkansas

CR 96-494                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered December 23, 1996


1.   Criminal procedure -- purpose of Ark. R. Crim. P. 8.1 --
     statements made by accused after unnecessary delay in
     arraignment not automatically excluded. -- Rule 8.1 of the
     Arkansas Rules of Criminal Procedure, in addition to guarding
     against the coercive influence of custodial interrogation,
     insures that the accused is placed in early contact with a
     judicial officer so that protections covered by preliminary
     arraignment are afforded without delay, that the right to
     counsel may be clearly explained and implemented upon the
     accused's request, and that the accused is protected from
     being held incommunicado for protracted periods of time; Rule
     8.1 is designed to "afford an arrestee protection against
     unfounded invasion of liberty and privacy"; if an unnecessary
     delay in arraignment occurs, statements given by the accused
     are not automatically excluded; rather, the court considers
     whether the statement is prejudicial and whether it is
     reasonably related to the delay. 

2.   Criminal procedure -- no unnecessary delay occurred between
     time appellant questioned about murder and time he confessed -
     - no policy reason existed for application of exclusionary
     rule. -- Where there was no unnecessary delay in arraigning
     appellant on the murder charge, he had repeatedly been given
     his Miranda warning, there was no unnecessary delay between
     the time the officers first questioned appellant about the
     murder and the time he confessed, and, most importantly, no
     police misconduct occurred during the appellant's
     incarceration; there was no policy reason to apply the
     exclusionary rule to appellant's statement.

3.   Criminal procedure -- exclusionary rule -- purpose of. --   
     The purpose of Miranda and its progeny was to inhibit police
     misconduct, not the making of incriminating statements;
     coercive police activity is a necessary predicate to finding
     a confession involuntary within the meaning of the Due Process
     Clause of the Fourteenth Amendment.

4.   Criminal procedure -- exclusionary rule -- purpose in context
     of Fourth Amendment. -- Brown v. U.S, 422 U.S. 590 (1975),
     mandates an evaluation of each case in the light of the policy
     served by the exclusionary rule, that is, deterring lawless
     conduct by officers by removing the incentive to disregard
     those laws in determining whether statements made after an
     illegal arrest should be suppressed. 

4.   Criminal procedure -- confession given freely and without
     evidence of police misconduct -- no reason to exclude
     appellant's statement. -- Where the police repeatedly advised
     appellant of his rights and honored his various requests, and
     appellant gave his confession at the time that he was
     scheduled to be arraigned on other charges because he
     requested that the officer wait until that morning to have the
     prosecuting attorney's office talk to him, there was no
     evidence of police misconduct; there was no reason to exclude
     appellant's statement.

5.   Criminal procedure -- Sixth Amendment right to counsel is
     offense-specific -- fact that appellant would have been
     appointed an attorney on another charge had he been arraigned
     as planned no reason to exclude statement given about this
     case. -- The fact that appellant would have been appointed an
     attorney in another case had he been arraigned as planned was
     not a sufficient reason to exclude his statement here; an
     accused's request for counsel at a first appearance on a
     charged offense does not constitute an invocation of his Fifth
     Amendment right to counsel on unrelated and uncharged
     offenses, thus precluding police-initiated interrogation on
     the unrelated matters; the Sixth Amendment right to counsel is
     offense specific, it cannot be invoked once for all future
     prosecutions, for it does not attach until a prosecution is
     commenced, that is, at or after the initiation of adversary
     judicial criminal proceedings, whether by way of formal
     charge, preliminary  hearing, indictment, information, or
     arraignment.

6.   Criminal procedure -- invalidation of subsequent waivers in
     police-initiated interviews is offense specific -- to hold
     otherwise would frustrate public's interest in investigation
     of crimes. -- Because the police have an interest in
     investigating new or additional crimes after an individual is
     formally charged with one crime, to exclude evidence
     pertaining to charges as to which the Sixth Amendment right to
     counsel had not attached at the time the evidence was
     obtained, simply because other charges were pending at that
     time, would unnecessarily frustrate the public's interest in
     the investigation of criminal activities; incriminating
     statements pertaining to other crimes, as to which the Sixth
     Amendment right has not yet attached, are admissible at a
     trial of those offenses. 
 
7.   Criminal procedure -- admissions of guilt resulting from valid
     Miranda waivers are essential to administration of justice --
     prior invocation of offense-specific Sixth Amendment right
     with regard to unrelated crime is not equal to invocation of
     non-offense-specific Miranda-Edwards right. -- Under Edwards
     v. Arizona, 451 U.S. 477 (1981), once a suspect invokes the
     Miranda right to counsel for interrogation regarding one
     offense, he may not be reapproached regarding any offense
     unless counsel is present; however, when a defendant expressly
     waives his Miranda right to counsel every time he is
     interrogated, the waivers are valid because his prior
     invocation of the offense-specific Sixth Amendment right with
     regard to an unrelated crime is not considered an invocation
     of the nonoffense-specific Miranda-Edwards right; the
     assertion of the Sixth Amendment right to counsel does not
     imply an assertion of the Miranda Fifth Amendment right, the
     Sixth Amendment right to counsel attaches at the first formal
     proceeding against an accused, admissions of guilt resulting
     from valid Miranda waivers "are more than merely `desirable';
     they are essential to society's compelling interest in
     finding, convicting, and punishing those who violate the law."
     

  
8.   Criminal procedure -- appointment of counsel for one charge
     did not prevent appellant from being questioned about other,
     unrelated charges -- trial court properly refused to suppress
     appellant's confession. --  Even if appellant had been
     arraigned on the charges for which he was originally arrested,
     and an attorney had been appointed for that case, he still
     could have been questioned regarding the murder; appellant was
     repeatedly given his Miranda warnings and repeatedly gave
     valid waivers; there was no police misconduct and no
     connection between appellant's missing his scheduled
     arraignment in the first matter and giving the confession in
     the present case; therefore, the trial court properly refused
     to suppress the confession.
  

     Appeal from Crawford Circuit Court; Floyd "Pete" Rogers,
Judge; affirmed.
     Booth & Honeycutt, P.L.C., by:  J. Marvin Honeycutt, for
appellant.
     Winston Bryant, Att'y Gen., by:  Sandy Moll, Asst. Att'y Gen.,
for appellee.

     Robert H. Dudley, Justice. 
     Larry Landrum was convicted of the murder of Lucille Hassler
and sentenced to life imprisonment.  He does not question the
sufficiency of the evidence, so we need not recite the details of
the crime.  Landrum's sole argument is that the trial court erred
in refusing to suppress his confession because there was an
unreasonable delay in his arraignment.  The argument is without
merit, and we affirm the judgment of conviction.
     Landrum, a habitual criminal, was arrested on the afternoon of
December 12, 1994, on an unrelated series of crimes involving the
attempted rape and aggravated assault of Kristie Anderson and the
theft of her property.  Shortly after his arrest, he was given a
Miranda warning and gave an exculpatory statement.  He was taken to
jail and scheduled to be arraigned on these charges at 8:30 a.m.,
December 14.
     On the next afternoon, December 13, at about 4:30, Landrum was
again given a Miranda warning and questioned about a second
unrelated murder, the murder of Melissa Witt.  After approximately
thirty minutes of questioning about the Witt murder, the officers
again informed Landrum of his Miranda rights and asked him some
questions about this case, the murder of Lucille Hassler.  Landrum
made no admissions about the Hassler murder, but his body language
raised the officers' suspicions.
     Investigator Pittman, one of the officers who was questioning
Landrum, asked Landrum if he wanted to take a polygraph
examination, and he responded affirmatively.  The polygraph
examiner, Investigator Brett Pritchard, arrived between 7:30 and
8:00 that same night, December 13, and again gave appellant a
Miranda warning.  After Landrum completed the examination, he was
told that the results were bad.  Landrum told the examiner that he
wanted to speak privately with Officer Dale Best.  Best, a State
Police Lieutenant, was contacted, and he went to the jail and
talked to appellant from 10:25 to 11:45 that night.  Landrum told
Best that he would discuss the details of the Hassler murder if he
knew what to expect from the prosecuting attorney.  Officer Best
asked Landrum if he wanted him to contact the prosecuting attorney
that night or wait until the next morning.  Landrum answered that
he was tired and wanted to wait until the next morning.  
     Officer Best contacted the prosecuting attorney's office and,
at 7:50 on the morning of the 14th, returned to the jail to talk to
Landrum.  Landrum admitted to Best that he had killed Ms. Hassler. 
A deputy prosecutor arrived and went over the charges that would be
filed in the Hassler murder, agreed not to seek the death penalty,
and agreed the sentences could be run concurrently with others
Landrum was to receive.  At 8:35 Landrum was again informed of his
Miranda rights, and he gave a taped statement in which he confessed
to the Hassler murder.  The statement was concluded at 9:14 that
morning.
     Landrum was making a confession in this case, the Hassler
murder, at 8:30 on the morning of the 13th, and therefore was not
taken to his scheduled arraignment on the Anderson charges.  In the
appeal of this case Landrum contends that the trial court erred in
admitting his confession in the Hassler murder because if he had
been taken before a judicial officer in the Anderson case at 8:30
on the morning of the 13th, as scheduled, an attorney would have
been appointed for him in the Anderson case and the attorney would
have advised him not to make a confession in the Hassler case.
     Landrum's argument is without merit.  There is no connection
between the delay in the arraignment in the Anderson case and the
resulting appointment of counsel for that case, and Landrum giving
his statement confessing to the murder in this case.  The purpose
of the exclusionary rule is to deter police misconduct, and there
was no police misconduct.
     Rule 8.1 of the Arkansas Rules of Criminal Procedure provides:
"An arrested person who is not released by citation or by other
lawful manner shall be taken before a judicial officer without
unnecessary delay."  In Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987), we explained the reasons for Rule 8.1:
          It has been recognized that in addition to the
     purpose of guarding against the coercive influence of
     custodial interrogation, the rule insures that the
     accused is placed in early contact with a judicial
     officer so that protections covered by preliminary
     arraignment are afforded without delay, that the right to
     counsel may be clearly explained and implemented upon the
     accused's request and that the accused is protected from
     being held incommunicado for protracted periods of time.
Id. at 528, 726 S.W.2d  at 656 (citations omitted).  In Bolden v.
State, 262 Ark. 718, 561 S.W.2d 281 (1978), we stated that Rule 8.1
is designed to "afford an arrestee protection against unfounded
invasion of liberty and privacy."  Id. at 724, 561 S.W.2d  at 284. 
If an unnecessary delay in arraignment occurs, statements given by
the accused are not automatically excluded; rather, the court
considers whether the statement is prejudicial and whether it is
reasonably related to the delay.  Duncan, 291 Ark. at 529, 726 S.W.2d  at 657.
     In the present case, there was no unnecessary delay in
arraigning Landrum on the Hassler charge.  The officers first
questioned him about the Hassler murder at 5:00 on the afternoon of
December 13, 1994.  He had been informed of his Miranda rights
three times when the officers questioned him about the Hassler
murder.  He was again informed of his Miranda rights before he took
the polygraph examination on the evening of December 13.  After
doing poorly on the polygraph examination, he asked to speak with
Officer Best alone, and his request was honored.  Landrum told
Officer Best that he would talk about Ms. Hassler's disappearance
if he could talk with the prosecuting attorney's office first so
that he would know what to expect.  He specifically asked that
Officer Best wait until the morning of December 14, 1994, to
contact the prosecuting attorney's office.  Officer Best complied
with Landrum's request, concluding the interview at that time and
not contacting Landrum again until the morning of December 14.  On
the morning of December 14, 1994, less than twenty-four hours after
the officers first questioned him regarding the disappearance and
death of Ms. Hassler, Landrum confessed to the crime.  There was no
unnecessary delay between the time the officers first questioned
Landrum about the Hassler murder and the time he confessed.  Most
important, no police misconduct occurred during the incarceration
of Landrum, and therefore, there is no policy reason for us to
apply the exclusionary rule to Landrum's statement. 
     The purpose of the exclusionary rule is to deter police
misconduct.  In Scherrer v. State, 294 Ark. 287, 742 S.W.2d 884
(1988), we quoted Beed v. State, 271 Ark. 526, 609 S.W.2d 898
(1980), in explaining that the purpose of Miranda and its progeny
was to inhibit police misconduct, not the making of incriminating
statements.  Id. at 291, 742 S.W.2d  at 886.  Similarly, in Whitmore
v. State, 296 Ark. 308, 756 S.W.2d 890 (1988), we affirmed the
trial court's ruling denying the defendant's motion to suppress his
statements, stating in part, "Since the police did not violate the
Miranda procedural rules, and were not guilty of any police
misconduct, the trial court correctly refused to apply the
exclusionary rule on the basis of Miranda."  Id. at 312, 756 S.W.2d 
at 892.  In Weger v. State, 315 Ark. 555, 869 S.W.2d 688 (1994), we
affirmed the admission of the defendant's confession.  In doing so,
we discussed the case of Colorado v. Connelly, 479 U.S. 157 (1986),
stating that the United States Supreme Court held that "coercive
police activity is a necessary predicate to finding a confession
involuntary within the meaning of the Due Process Clause of the
Fourteenth Amendment."  Id. at 558, 869 S.W.2d  at 689.
     We have also explained the purpose of the exclusionary rule in
the context of the Fourth Amendment.  In Allen v. State, 277 Ark.
380, 641 S.W.2d 710 (1982), we reversed the judgment on an
unrelated ground while agreeing with the trial court that the
defendant's confession was admissible.  The defendant argued that
the warrant for his arrest was technically illegal, and thus his
arrest was illegal, and that his confession should have been
suppressed as fruit of the poisonous tree.  We rejected the
argument and wrote that Brown v. U.S, 422 U.S. 590 (1975),
"mandates an evaluation of each case in the light of the policy
served by the exclusionary rule, that is, deterring lawless conduct
by officers by removing the incentive to disregard those laws" in
determining whether statements made after an illegal arrest should
be suppressed.  Id. at 386, 641 S.W.2d  at 714.  We did not
determine whether the warrant was illegal because a warrant was not
constitutionally required to arrest the defendant.  We wrote:
     The illegality of the warrant here served no quality of
     purposefulness.  There was no misuse of power to gain the
     confession.  The police gained no advantage by use of the
     invalid warrant.  The police should not be penalized for
     attempting to afford an unnecessary procedural safeguard
     to appellant.  Therefore there is no policy reason to
     apply the exclusionary rule under the Fourth Amendment. 
Id. at 386, 641 S.W.2d  at 714.  See also Collins v. State, 304 Ark.
587, 804 S.W.2d 680 (1991); Moore v. State, 303 Ark. 514, 798 S.W.2d 87 (1990).     
     In the present case, the police repeatedly advised Landrum of
his rights and honored his various requests.  Landrum gave his
confession at the time that he was scheduled to be arraigned on the
Anderson charges because he requested that Officer Best wait until
the morning of the 14th to have the prosecuting attorney's office
talk to him.  Since there is no evidence of police misconduct,
there is no reason to exclude appellant's statement.
     The fact that Landrum would have been appointed an attorney in
the Anderson matter had he been arraigned on December 14, 1994, is
not reason to exclude his statement in the present case.  In McNeil
v. Wisconsin, 501 U.S. 171 (1991), the United States Supreme Court
addressed whether an accused's request for counsel at a first
appearance on a charged offense constituted an invocation of his
Fifth Amendment right to counsel on unrelated and uncharged
offenses, thus precluding police-initiated interrogation on the
unrelated matters.  In explaining that the Sixth Amendment right to
counsel is offense specific, the opinion provides:
          The Sixth Amendment right, however, is offense
     specific.  It cannot be invoked once for all future
     prosecutions, for it does not attach until a prosecution
     is commenced, that is, "`at or after the initiation of
     adversary judicial criminal proceedings -- whether by way
     of formal charge, preliminary  hearing, indictment,
     information, or arraignment.'"  United States v. Gouveia,
     467 U.S. 180, 188 (1984) (quoting Kirby v. Illinois, 406 U.S. 682, 689 (1972) (plurality opinion)).  And just as
     the right is offense specific, so also its Michigan v.
     Jackson effect of invalidating subsequent waivers in
     police-initiated interviews is offense specific.
          "The police have an interest ... in
          investigating new or additional crimes [after
          an individual is formally charged with one
          crime.] ... [T]o exclude evidence pertaining
          to charges as to which the Sixth Amendment
          right to counsel had not attached at the time
          the evidence was obtained, simply because
          other charges were pending at that time, would
          unnecessarily frustrate the public's interest
          in the investigation of criminal activities. .
          . ."  Maine v. Moulton, 474 U.S. 159, 179-180
          (1985).
               "Incriminating statements pertaining to
          other crimes, as to which the Sixth Amendment
          right has not yet attached, are, of course,
          admissible at a trial of those offenses."  Id.
          at 180, n. 16.
Id. at 175-76.  
     The Court in McNeil explained that under Edwards v. Arizona,
451 U.S. 477 (1981), "Once a suspect invokes the Miranda right to
counsel for interrogation regarding one offense, he may not be
reapproached regarding any offense unless counsel is present."  501 U.S.  at 177 (emphasis in the original).  The Court then stated that
the defendant in McNeil sought to prevail by combining his right to
counsel under the Fifth Amendment and under the Sixth Amendment. 
The defendant contended that even though he expressly waived his
Miranda right to counsel every time he was interrogated, the
waivers were invalid "because his prior invocation of the offense-
specific Sixth Amendment right with regard to the [unrelated crime]
was also an invocation of the nonoffense-specific Miranda-Edwards
right." Id.  The Supreme Court stated, "We think that it is false
as a matter of fact and inadvisable (if even permissible) as a
contrary-to-fact presumption of policy."  Id. The Court rejected
the possibility that it should adopt the policy that the assertion
of the Sixth Amendment right to counsel implies an assertion of the
Miranda Fifth Amendment right, stating:
     If a suspect does not wish to communicate with the police
     except through an attorney, he can simply tell them that
     when they give him the Miranda warnings.  There is not
     the remotest chance that he will feel "badgered" by their
     asking to talk to him without counsel present, since the
     subject will not be the charge on which he has already
     requested counsel's assistance (for in that event Jackson
     would preclude initiation of the interview) and he will
     not have rejected uncounseled interrogation on any
     subject before (for in that event Edwards would preclude
     initiation of the interview).  The proposed rule would,
     however, seriously impede effective law enforcement.  The
     Sixth Amendment right to counsel attaches at the first
     formal proceeding against an accused, and in most States,
     at least with respect to serious offenses, free counsel
     is made available at that time and ordinarily requested. 
     Thus, if we were to adopt petitioner's rule, most persons
     in pretrial custody for serious offenses would be
     unapproachable by police officers suspecting them of
     involvement in other crimes, even though they have never
     expressed any unwillingness to be questioned.  Since the
     ready ability to obtain uncoerced confessions is not an
     evil but an unmitigated good, society would be the loser. 
     Admissions of guilt resulting from valid Miranda waivers
     "are more than merely `desirable'; they are essential to
     society's compelling interest in finding, convicting, and
     punishing those who violate the law."  Moran, 475 U.S.,
     at 426 (citation omitted).
501 U.S.  at 180-81 (emphasis in the original).  
     Applying McNeil to the present case, even if Landrum had been
arraigned on the Anderson charges on the morning of December 14,
1994, as scheduled, and an attorney had been appointed for that
case, he still could have been questioned regarding the murder of
Ms. Hassler.  Landrum was repeatedly given his Miranda warnings and
repeatedly gave valid waivers.  There was simply no police
misconduct and no connection between appellant's missing his
scheduled arraignment in the Anderson matter and giving the
confession in the present case.  Therefore, the trial court
properly refused to suppress the confession.
     In accordance with Rule 4-3(h) of the Rules of the Supreme
Court, the record has been reviewed for rulings adverse to
appellant, but not argued on appeal, and no reversible errors were
found.
     Affirmed.