McCoy v. State

Corinthian McCOY v. STATE of Arkansas

CR 96-6                                            ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered June 24, 1996


1.   Search & seizure -- motion to suppress -- standing to
     challenge a search necessary. -- A proponent of a motion to
     suppress bears the burden of establishing that his Fourth
     Amendment rights have been violated; Fourth Amendment rights
     are personal in nature, the pertinent inquiry regarding
     standing to challenge a search is whether a defendant
     manifested a subjective expectation of privacy in the area
     searched and whether society is prepared to recognize that
     expectation as reasonable; the constitutionality of a search
     will not be reached where a defendant has failed to show that
     he had an expectation of privacy in the object of the search;
     a defendant has no standing to question the search of a
     vehicle owned by another person, unless he can show that he
     gained possession from the owner or from someone who had
     authority to grant possession. 

2.   Search & seizure -- no proof appellant had legitimate
     expectation of privacy in car -- trial court's ruling
     affirmed. -- Where appellant presented no proof whatsoever
     that he had a legitimate expectation of privacy in the car, 
     appellant's own counsel elicited testimony that there was no
     evidence to indicate that appellant was the actual owner of
     the vehicle or that he lawfully possessed it, appellant had no
     standing to challenge the search of the car; the merits of his
     argument on appeal were not reached on appeal, and the trial
     court's ruling on the motion to suppress allowing the evidence
     found in the search of the vehicle was affirmed.

3.   Criminal procedure -- voluntariness of custodial statement in
     issue -- factors on review. -- When voluntariness of a
     statement is an issue, the court makes an independent
     determination based on the totality of the circumstances
     surrounding the statement; the ruling of the trial court will
     be reversed only if that ruling was clearly against the
     preponderance of the evidence; a custodial statement is
     presumed involuntary, and the burden is on the state to show
     that the statement was voluntarily given; a confession based
     on threats of harm is inadmissible; in making a determination
     of whether a statement was voluntarily made, the court will
     consider many factors, among which are the age, education, and
     intelligence of the accused; the length of questioning; the
     advice or lack of advice on constitutional rights; the
     repeated or prolonged nature of questioning; and the use of
     mental or physical punishment.  


4.   Witnesses -- conflicts in testimony -- credibility issue for
     trial court to resolve. -- Conflicts in testimony are for the
     trial court to resolve, as it is in a superior position to
     determine the credibility of the witnesses.

5.   Criminal procedure -- waiver of rights by appellant found
     voluntary -- no error in denying appellant's motion to
     suppress. -- Where, during the suppression hearing, appellant
     and an officer were the only persons to testify, and their
     testimony was conflicting, appellant was twenty-one years old
     at the time of the interview, he was advised of his rights, he
     admitted that he understood that he did not have to say
     anything at all without a lawyer present, appellant had been
     in this situation twice before and clearly understood that he
     did not have to make a statement without his attorney present,
     but he went ahead and gave a statement, the state introduced
     into evidence the statement of rights form signed by appellant
     as well as the transcript of the taped interview, the
     transcript of the interview reflected that the officer
     informed appellant that there were enough statements and
     enough witnesses to obtain the bench warrant, and that he was
     going to arrest appellant regardless of whether appellant gave
     a statement, appellant then gave a statement denying any
     involvement in the shooting, and at no point during the
     interview, which lasted only twelve minutes, did appellant
     inculpate himself in the crime, the appellate court found that
     appellant voluntarily waived his Miranda rights, that he gave
     the statement voluntarily without the presence of an attorney,
     and that no threats or coercion were used on appellant; there
     was no evidence that appellant was so lacking in either
     education or intelligence that he did not understand what he
     was doing. 

6.   Criminal procedure -- officer's statement of intent to arrest
     appellant not a threat -- appellant's statement voluntarily
     given. -- The officer's statement that he was going to arrest
     appellant regardless of whether appellant told his side of the
     story did not rise to the level of being a threat, instead it
     indicated that the officer had already planned to arrest
     appellant and that appellant's actions in choosing either to
     give a statement or not to give a statement would not have
     changed the officer's plans; there was no evidence to support
     appellant's claim that he thought that if he gave a statement
     the officer would release him without arresting him;
     appellant's claim that he felt threatened or pressured into
     giving a statement was unpersuasive in light of the fact that
     his statement was exculpatory in nature and amounted to
     nothing more than a blanket denial of the allegations; the
     statement was voluntarily given and that the trial court did
     not err in denying appellant's motion to suppress it.      


     Appeal from Saline Circuit Court; John E. Cole, Judge;
affirmed.
     Joe Kelly Hardin, for appellant.
     Winston Bryant, Att'y Gen., by:  Clint Miller, Deputy Att'y
Gen., Sr. Appellate Advocate for appellee.

     Donald L. Corbin, Justice.


Associate Justice Donald L.
Corbin, 6-24-96   *ADVREP*SC8*





CORINTHIAN MCCOY,
                    APPELLANT,

V.

STATE OF ARKANSAS,
                    APPELLEE,



CR 96-6



APPEAL FROM THE SALINE COUNTY
CIRCUIT COURT,
NO. CR-94-400-1,
HON. JOHN W. COLE, JUDGE,



AFFIRMED.






     Appellant, Corinthian McCoy, was convicted by a jury of first-
degree murder and attempted second-degree murder, and sentenced by
the Saline County Circuit Court to life in the Arkansas Department
of Correction.  McCoy appeals the circuit court's judgment of
conviction, and this court has jurisdiction of the appeal pursuant
to Ark. Sup. Ct. R. 1-2(a)(2).  McCoy raises two points on appeal: 
(1) The trial court erred in allowing the prosecution to introduce
items seized in an illegal search of appellant's vehicle; and (2)
the trial court erred in allowing the prosecution to introduce
appellant's custodial statement, as it was involuntary and taken
without regard to appellant's request for an attorney.  We affirm.
     In the early-morning hours of August 6, 1994, a shooting
occurred at Jimmy Dirden's Club in Benton, Arkansas, which resulted
in the death of Willie Mills and the injury of Raymond Lewis. 
Benton Police officers discovered a piece of metal in the club's
 parking lot that was similar to a .22 caliber bullet.  Raymond
Lewis, who suffered a gunshot wound to the leg, told officers that
a black male driving a light-colored big car, such as an Oldsmobile
or a Buick, left Dirden's and began shooting from inside his
vehicle into a crowd of people standing outside the club.  Lewis
told the officers that the vehicle driven by the shooter had no
license plate, and that the man who did the shooting was kin to
Demetrius Woods.
     Officers spoke to Demetrius Woods, who stated that he was
present when the crime occurred and that it was his cousin
Corinthian who did the shooting.  Woods told police that he did not
know Corinthian's last name, but that he did know that Corinthian
had recently received a traffic ticket for no vehicle license in
Alexander or Bryant, Arkansas.  Woods also stated that at the time
of the incident, Corinthian was driving a big, light-colored car,
possibly an Oldsmobile, which had no license plate. 
     Investigating officers subsequently located the Arkansas State
Police officer who issued the traffic ticket to the individual
known to the officers only as "Corinthian."  A copy of the traffic
citation, which was written for no vehicle license, revealed that
the driver of the vehicle was identified as Corinthian McCoy and
that the vehicle driven was a white Oldsmobile.  Upon having
identified appellant as the suspect, officers located appellant's
residence in Little Rock, Arkansas, and arrested him later that
same day of the shooting.  Officers also located the vehicle in
question at appellant's residence and identified it as a 1980 light
gray Oldsmobile Delta 88 bearing no license plate.  Upon his
arrest, appellant was interviewed by a police detective and denied
any involvement in the shooting.  Officers seized the vehicle from
appellant's residence and later conducted a search of its contents
pursuant to a search warrant.  The only evidence of the crime found
during the search of the vehicle was a .22 caliber bullet.    
     Prior to appellant's trial, a hearing was conducted on the
motions to suppress appellant's statement and the evidence
recovered in the search.  After hearing the testimony presented,
the trial court denied appellant's motion to suppress the physical
evidence, stating that there was sufficient identification of the
vehicle in the affidavit to support application for the search
warrant.  After reviewing the contents of the statement itself, the
trial court also denied appellant's motion to suppress the
custodial interview.  
                    I.  Search of the Vehicle
     Appellant argues that the trial court erred in failing to
suppress the evidence found in a search of the vehicle appellant
was driving on the night of the shooting.  Specifically, appellant
argues that the affidavit for search warrant insufficiently
identified the proper vehicle to be searched, and that the trial
court erred in allowing a witness to testify beyond the information
contained in the affidavit.  The state argues that appellant lacked
standing to challenge the search as he did not present any proof
that he owned or legally possessed the automobile.  We agree.  
     It is well settled that a proponent of a motion to suppress
bears the burden of establishing that his Fourth Amendment rights
have been violated.  Rockett v. State, 319 Ark. 335, 891 S.W.2d 366
(1995) (citing Rakas v. Illinois, 439 U.S. 128 (1978)).  Fourth
Amendment rights are personal in nature.  Rockett, 319 Ark. 335,
891 S.W.2d 366; State v. Hamzy, 288 Ark. 561, 709 S.W.2d 397
(1986).  The pertinent inquiry regarding standing to challenge a
search is whether a defendant manifested a subjective expectation
of privacy in the area searched and whether society is prepared to
recognize that expectation as reasonable.  Littlepage v. State, 314
Ark. 361, 863 S.W.2d 276 (1993), (citing United States v. Erwin,
875 F.2d 268 (10th Cir. 1989)).  This court will not reach the
constitutionality of a search where a defendant has failed to show
that he had an expectation of privacy in the object of the search. 
Littlepage, 314 Ark. 361, 863 S.W.2d 276.  A defendant has no
standing to question the search of a vehicle owned by another
person, unless he can show that he gained possession from the owner
or from someone who had authority to grant possession.  Id.; State
v. Barter, 310 Ark. 94, 833 S.W.2d 372 (1992).  
     In the hearing below, appellant presented no proof whatsoever
that he had a legitimate expectation of privacy in the car. 
Appellant's argument to the trial court attacked the search warrant
on the basis that there was no evidence linking the car found at
his residence with the car involved in the crime; however,
counsel's questions and remarks indicated a different line of
attack, specifically, that the car was not appellant's.  Through
cross-examination of Officer Jimmy Holiman, appellant's counsel
elicited testimony to the effect that the officer had no evidence
to indicate that appellant was the actual owner of the vehicle and
that a check of the car's VIN (vehicle identification number),
showed the owner as Irma L. Brooks.  Through this line of
questioning, appellant's counsel all but admitted that appellant
had no expectation of privacy in the vehicle.  
     Appellant took the stand during the suppression hearing, but
his testimony was limited to the subject of his custodial
statement.  Appellant offered no proof that the car was his or that
he lawfully possessed it.  Because appellant failed to establish
lawful possession of the car, we conclude he had no standing to
challenge the search of the car.  For that reason, we do not reach
the merits of his argument on appeal, and we affirm the trial
court's ruling.
                    II.  Custodial Statement
     For his second point, appellant argues that the police
obtained a custodial statement from him in violation of his rights
under the Fifth and Sixth Amendments.  Appellant asserts that his
waiver of Miranda rights was not made voluntarily, that his request
for counsel was denied, and that he made the statement under duress
and threats from the officer.  We do not find any of these
arguments persuasive, and therefore we affirm.    
     When voluntariness of a statement is an issue, we make an
independent determination based on the totality of the
circumstances surrounding the statement.  Misskelley v. State, 323
Ark. 449, 915 S.W.2d 702 (1996).  We will reverse the ruling of the
trial court only if that ruling was clearly against the
preponderance of the evidence.  Magar v. State, 308 Ark. 380, 826 S.W.2d 221 (1992).  A custodial statement is presumed involuntary,
and the burden is on the state to show that the statement was
voluntarily given.  Misskelley, 323 Ark. 449, 915 S.W.2d 702.  A
confession based on threats of harm is inadmissible.  Duncan v.
State, 291 Ark. 521, 726 S.W.2d 653 (1987).  In making a
determination of whether a statement was voluntarily made, this
court will consider many factors, among which are the age,
education, and intelligence of the accused; the length of
questioning; the advice or lack of advice on constitutional rights;
the repeated or prolonged nature of questioning; and the use of
mental or physical punishment.  Misskelley, 323 Ark. 449, 915 S.W.2d 702.    
     During the suppression hearing, appellant and Sergeant Dan
Garner of the Benton Police Department were the only persons to
testify, and their testimony was conflicting.  This court has
previously held that conflicts in testimony are for the trial court
to resolve, as it is in a superior position to determine the
credibility of the witnesses.  Duncan, 291 Ark. 521, 726 S.W.2d 653.  The issue of whether appellant was threatened is a
credibility issue.  Stone v. State, 290 Ark. 204, 718 S.W.2d 102
(1986).  Based on the testimony presented, we cannot say the trial
court's determination that the statement was voluntary was clearly
against the preponderance of the evidence.    
     Appellant testified that he was twenty-one years old at the
time of the interview, that he was advised of his rights, and that
he asked for an attorney but the officer told him he would get one
when he went to court.  Appellant further testified that he felt
threatened when the officer informed him that there was a warrant
for his arrest and that appellant would be arrested at the
conclusion of the interview.  On cross-examination, appellant 
conceded that he had previously been interviewed by the police on
two occasions, and that during both those interviews he was read
his rights and he understood them.  Appellant admitted that during
the present interview he understood that he did not have to say
anything at all without a lawyer present, but that he went ahead
and gave a statement because he felt threatened.  Appellant
maintained that he only gave a statement because the officer told
him "you're going to jail anyway," and that by the officer's
statement, he assumed that if he made a statement the officer would
let him go.  
     The officer's testimony and the transcript of the taped
interview contradict appellant's version of what took place.
Sergeant Garner testified that he read appellant his Miranda rights
from a statement of rights form prior to questioning appellant. 
Garner stated that appellant signed the form and appeared to
understand his rights.  Garner stated that before the interview
began, appellant asked if Garner thought appellant needed an
attorney, and that Garner responded by telling appellant that it
was up to him (appellant) to decide whether he felt like he needed
an attorney.  Garner stated that he informed appellant that he had
an arrest warrant for appellant, and that he was going to arrest
appellant whether he made a statement or not.  
     The state introduced into evidence the statement of rights
form signed by appellant as well as the transcript of the taped
interview.  The statement of rights form reflects that appellant
not only signed his name at the bottom of the document, but that he
also responded "Yes" to each of the rights read to him and that he
put his initials by each response.  The transcript of the interview
reflects that Garner informed appellant that there were enough
statements and enough witnesses to obtain the bench warrant, and
that he was going to arrest appellant regardless of whether
appellant gave a statement.  The transcript also reflects that
Garner stated that he wanted to hear appellant's side of the story
and that appellant had the right to talk to an attorney before
giving a statement, but that appellant would be arrested and
charged whether he talked to the officer or not.  Appellant then
gave a statement denying any involvement in the shooting, and
furthermore, denying that he had even been in Benton on that night. 
At no point during the interview, which lasted only twelve minutes,
did appellant inculpate himself in the crime.  
     After careful consideration of the matter, we find that
appellant voluntarily waived his Miranda rights, that he gave the
statement voluntarily without the presence of an attorney, and that
no threats or coercion were used on appellant.  We find it
particularly persuasive that appellant had been in this situation
twice before and that, by his own admission, he understood he did
not have to give a statement without an attorney present.  There
was no evidence that appellant was so lacking in either education
or intelligence that he did not understand what he was doing.  In
fact, appellant was twenty-one years old at the time of the
interview, hardly an age at which he was incapable of making such
a decision.  Moreover, the duration of the interview itself was a
mere twelve minutes.  
     As for the allegations of threats or duress, we find that the
officer's statement that he was going to arrest appellant
regardless of whether appellant told his side of the story does not
rise to the level of being a threat.  To the contrary, it indicates
to us that the officer had already planned to arrest appellant and
that appellant's actions in choosing either to give a statement or
not to give a statement would not have changed the officer's plans. 
There is no evidence at all to support appellant's claim that he
thought that if he gave a statement the officer would release him
without arresting him.  Appellant's claim that he felt threatened
or pressured into giving a statement is especially unpersuasive in
light of the fact that his statement was exculpatory in nature and
amounted to nothing more than a blanket denial of the allegations. 
Based on all of the foregoing, we find that the statement was
voluntarily given and that the trial court did not err in denying
appellant's motion to suppress the statement.      
     In accordance with Rule 4-3(h) of the Arkansas Supreme Court
Rules, the record has been reviewed for adverse rulings objected to
by appellant but not argued on appeal, and no error was found.  For
the aforementioned reasons, we affirm the judgment of conviction.
     Affirmed.
     DUDLEY, J., not participating.