Milton v. State

Frankie G. MILTON v. STATE of Arkansas

CA CR 95-776                                       ___ S.W.2d ___

                  Court of Appeals of Arkansas
                          Division III
                 Opinion delivered June 12, 1996


1.   Criminal law -- review of trial court's denial of motion to
     suppress confession -- factors on review. -- In reviewing a
     trial court's denial of a motion to suppress a confession, the
     court views the evidence in the light most favorable to the
     State and makes an independent determination based on the
     totality of the circumstances of whether the accused
     knowingly, voluntarily, and intelligently waived his right to
     remain silent; reveral is required only when the decision to
     suppress is clearly against the preponderance of the evidence.

2.   Criminal law -- police initiated contact prohibited after
     defendant asks to deal with police through counsel -- any
     subsequent waiver of rights invalid. -- Police-initiated
     contact is prohibited after a criminal defendant expresses a
     desire to deal with the police only through counsel; any
     subsequent waiver of rights is invalid and renders a resulting
     confession inadmissible. 

3.   Criminal law -- waiver of rights -- effect of appointment of
     counsel. -- The fact of the appointment of counsel may be
     enough by itself to invalidate a subsequent waiver of rights
     by a defendant where the police initiate the subsequent
     contact; however, events occurring outside of the presence of
     the suspect and entirely unknown to him have no
     bearing on the capacity to comprehend and knowingly
     relinquish a constitutional right.

4.   Criminal law -- appellant and authorities aware counsel had
     been appointed -- appellant's conviction reversed. -- Where
     both appellant and the deputy prosecuting attorney were aware
     that the court had provided an attorney for appellant, and the
     interrogating officers had at least constructive knowledge of
     the appointment, appellant's second and third confessions,
     made after counsel had been appointed, were violative of
     appellant's constitutional rights; reversal of appellant's
     conviction was required.


     Appeal from Mississippi Circuit Court; David Burnett, Judge;
reversed and remanded.
     John H. Bradley, for appellant.
     Winston Bryant, Att'y Gen., by:  Vada Berger, Asst. Att'y
Gen., for appellee.

     Olly Neal, Judge.

*ADVREP*CA6*
                          DIVISION III









FRANKIE G. MILTON
                     APPELLANT

V.


STATE OF ARKANSAS
                      APPELLEE



CACR95-776

                                                    JUNE 12, 1996


APPEAL FROM THE MISSISSIPPI
COUNTY CIRCUIT COURT
CHICKASAWBA DISTRICT

HONORABLE DAVID BURNETT,
CIRCUIT JUDGE


REVERSED AND REMANDED





                        Olly Neal, Judge.


     Frankie Milton takes this appeal from his first-degree murder
conviction which was entered after a bench trial in the Mississippi
County Circuit Court.  Milton contends that two of the three
confessions he made to the Blytheville Police Department were
erroneously admitted at his trial, and, therefore, reversal of his
conviction is required.  We agree with appellant and, accordingly,
reverse the conviction.
     Milton was initially arrested on July 12, 1994, eight (8) days 
after police found the body of a woman named Lisa Thomas in a
burned-out residence in Blytheville.  The victim had been killed by
a gunshot wound to her head on July 3, 1994.  The day after 
appellant was arrested near Carlisle, Arkansas, and returned to
Blytheville, Milton gave his first custodial statement, in which he 
denied any involvement in or knowledge of the murder.  
     On July 15, 1994, at a 9:00 a.m. hearing, the presiding
magistrate found probable cause to charge Milton with first-degree
murder and contemporaneously appointed the Mississippi County
Public Defender's Office to represent appellant.  Appellant gave
his second statement to police officers later that day and a third
on July 18th, three days later.  Both the second and third
statements were inculpatory.  In his second statement, appellant
confessed his presence at the crime scene, but claimed that he held
the victim's arm while another man fired the fatal shot.  In his
July 18th statement, appellant admitted he fired the murder weapon.
     A formal order appointing the public defender to represent
appellant was entered on March 6, 1995, and appellant filed his
Motion to Suppress.  On March 21st, a Denno hearing was conducted
on appellant's motion.  At the hearing, the State presented the 
testimony of the officers who interrogated appellant, the
magistrate who made the initial appointment of counsel and the
Blytheville Municipal Court Deputy Clerk, who was charged with
maintaining court records.
     Officer James Sanders testified that he, Lieutenant Glen
Lester, and Detective Marvin Crawford were all present during the
tape-recorded portion of appellant's July 15th interview and that
none of the officers threatened, coerced, or made any promises to
appellant.  Lieutenant Lester, who was present during the entire
interview, corroborated Sanders' account of the second interview,
and, in addition, testified that he witnessed appellant sign a
waiver of rights form.  Lieutenant Lester also testified that he
and Detective Crawford were present during the July 18th interview
with appellant and that he, Lester, signed as a witness on the
third waiver-of-rights form appellant executed.  Both Sanders and
Lester admitted that Milton never requested that his statement be
taken and that all three confessions appellant gave resulted from
police-initiated interrogations.  All three officers denied knowing
that appellant was represented by counsel and claimed that
appellant never attempted to invoke his right to have an attorney
present.
     The Municipal Clerk Deputy, Grace Haney, testified that she
specifically remembered appellant's March 15, 1994, probable-cause
hearing, but couldn't remember which deputy prosecutor represented
the State on that date.  According to Ms. Haney, Guy Long, a local
attorney, presided over the hearing.  Attorney Guy Long, who was
also called as a defense witness, admitted that he acted as sitting
judge at appellant's probable-cause hearing, and that it was he who
made the finding of probable cause to charge appellant with murder
in the first degree.  Mr. Long stated that he appointed the public
defender's office to represent appellant, advised appellant of his
right to counsel, and made certain that appellant was aware the
public defender had been appointed to represent him.  Finally,
according to Mr. Long, Deputy Prosecuting Attorney Marvin Childers,
who was present, filled out the affidavits necessary for the
appointment and Long signed them.
     Based on the evidence presented at the hearing, appellant's
motion to suppress was denied.  After the subsequent trial on the
merits before the court, appellant was convicted of the offense of
murder in the first degree and sentenced to thirty years (30) in
the Arkansas Department of Correction.
     Appellant's only argument is that the taking of his second and
third statements violated his Fifth Amendment right against self-
incrimination and his Sixth Amendment right to counsel and,
therefore, that both statements should have been suppressed. 
Relying on Bussard v. State, 295 Ark. 72, 747 S.W.2d 71 (1988) and
Sutherland v. State, 299 Ark. 86, 771 S.W.2d 264 (1989), appellant
contends that his Sixth Amendment right to counsel attached upon
his arrest, and after counsel had been appointed to represent him
he was not subject to further interrogation by the authorities
unless he himself initiated that contact.
     In reviewing a trial court's denial of a motion to suppress a
confession, we view the evidence in the light most favorable to the
State and make an independent determination based on the totality
of the circumstances of whether the accused knowingly, voluntarily,
and intelligently waived his right to remain silent.  Morris v.
State, 302 Ark. 532, 792 S.W.2d 288 (1990).  We only reverse if the
decision to suppress was clearly against the preponderance of the
evidence.  Id.
     Appellant is correct in his statements that police-initiated
contact is prohibited after a criminal defendant expresses a desire
to deal with the police only through counsel and that any
subsequent waiver of rights is invalid and renders a resulting
confession inadmissible.  See Bussard v. State, 295 Ark. 72, 747 S.W.2d 71 (1988), and Sutherland v. State, 299 Ark. 86, 771 S.W.2d 264 (1989).  In the present case, however, although it is clear
from the record that the acting magistrate who presided over
appellant's probable-cause hearing designated the Mississippi
County public defender's office as counsel for appellant, nothing
in the record shows that appellant requested the appointment or
ever made any other objective indication that he desired the
representation.  However, the record does show that a deputy
prosecuting attorney was present when an attorney was appointed to
represent appellant, and that some representatives of the local
police department escorted appellant to the hearing.
     The Supreme Court's holding in Sutherland seems to indicate
that the fact of the appointment is enough by itself to invalidate
a subsequent waiver of rights by a defendant where the police
initiate the subsequent contact.  However, in a more recent case,
Lanes v. State, 53 Ark. App. ___, ___ S.W.2d ___(1996), we
discussed the standards set out in Michigan v. Jackson and Edwards
v. Arizona, which were relied on in both Sutherland and Bussard. 
There, we stated:
     The critical difference...between Michigan v. Jackson
     and the case at bar is that in Jackson, both Jackson
     and [his co-defendant] asked that counsel be appointed
     to represent them.  Here, appellant made no request for
     counsel and was unaware that counsel had been appointed.
     In Moran v. Burbine, 475 U.S. 412, 422 (1986), the Court
     said, "Events occurring outside of the presence of the
     suspect and entirely unknown to him surely can have no
     bearing on the capacity to comprehend and knowingly
     relinquish a constitutional right."  (Citations omitted)
     We conclude that the trial court's determination that both 
     the waiver and the statement were knowingly given should 
     be affirmed.


     This case is distinguishable from Lanes in that here, both
appellant and the local authorities were aware that the court had
provided an attorney for appellant while in Lanes, the appellant,
not knowing that counsel had been appointed for him, sought other
counsel.  The record in Lanes was also sufficient to establish that
none of the interrogating officers had constructive knowledge of
the appointment.
     Because appellant was aware that he had an attorney and the
interrogating officers had at least constructive knowledge of that
fact, reversal of appellant's conviction is required.
     Reversed and remanded.
     Robbins and Rogers, JJ., agree.