Daniel W. Johnson v. State of Arkansas

ar99-551

DIVISION II

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

CACR99-551

January 31, 2000

DANNY JOHNSON AN APPEAL FROM SALINE COUNTY

APPELLANT CIRCUIT COURT [CR97-488-1]

V. HON. JOHN W. COLE, JUDGE

STATE OF ARKANSAS AFFIRMED

APPELLEE

Danny Johnson appeals his conviction and sentence following a jury verdict that found him guilty of second-degree murder. He was sentenced to twenty years' imprisonment in the Arkansas Department of Correction; now he argues that the State failed to produce sufficient evidence to prove the victim's identity and that the trial court's denial of his motion to suppress his confession was clearly erroneous. Initially, we declined to reach the merits of appellant's argument and affirmed the trial court after we held that appellant's abstract was flagrantly deficient. Appellant filed a petition for review with the Arkansas Supreme Court, which reversed and reassigned the case to our court for a decision on the merits. A review of the record does not support appellant's contentions. Accordingly, we affirm.

On November 27, 1997, the Saline County sheriff's department went to the groundsof the Mount Olive Baptist Church in response to a telephoned report about discovery of a body. The police discovered the body, later identified as Willard Michael Sammons, lying face down close to the church. Later, Bobby Forrester went to the sheriff's office and gave the police a statement that implicated appellant. Based on Forrester's statement, the police prepared an affidavit that sought an arrest and search warrant for appellant who was subsequently arrested and charged with capital murder.

Appellant was initially interviewed by Officers Martin and Garner who informed him of his Miranda rights and presented him with a Miranda waiver form. Although appellant initially responded to five statements on the form by placing his initials beside them, he refused to sign the waiver of his right to refuse to talk without an attorney present. Instead, he told the officers that he wanted to talk with an attorney before he talked with them. The officers then concluded the interview and took Johnson to the Saline County Jail. On the way to the jail, appellant asked the officers what was going on. When the officers told him what they wanted to talk about, appellant denied knowing Sammons, having dealt with Sammons or having ever seen Sammons before. In response, Officer Garner told appellant "you cannot honestly look me in the eye and tell me that you do not know Mr. Sammons, he's never been to your house, you've never been with him at Mt. Olive Missionary Baptist Church." Appellant told Garner he could not do that. Garner then told appellant that after he talked with his lawyer, if he wanted to talk with the officers, he could tell the jailer. Appellant told Garner he wanted to "get things straight in [his] head before [he] talked."

Later in the day, Deputy Roe Moreno approached Garner and Martin and told them that appellant wanted to speak with them. The officers went to the holding cell and askedappellant if he wanted to talk. He stated that he did, so they took him back to an investigation room and re-read his Miranda rights. Appellant signed a rights form, this time indicating that he waived the right to counsel. He then gave a statement that was tape-recorded and videotaped. During his confession, appellant stated "I told one of the jailers I wanted to talk with you. It was my choice to talk." Appellant told the officers that he had been out drinking and that the victim took him home. He stated that after he and the victim arrived at his home, they began to fight. Appellant stated that the fight continued at the church, and that he knocked the victim to the ground, pulled down his pants, and left him. A suppression hearing was held on August 18, 1998. The State presented testimony from Martin and Garner who testified that once appellant told them he did not want to talk without an attorney, they stopped the interrogation and did not speak with him again until told that appellant wished to speak with them. The officers then went to appellant's cell and asked him if he wanted to speak with them. He stated "yes" and gave a taped confession.1 After the State rested, appellant argued that the confession should be suppressed because the State failed to prove that appellant initiated the second interrogation. The court held the hearing open, over the objection of appellant.

The matter was presented to the court again on September 21, 1998. At this time, the State offered the testimony of Lloyd Baker, a jailer at the time of the incident. Baker testified that he was not sure if he worked on November 27th and 28th. He testified that he remembered that a prisoner requested to speak with Moreno; however, he could not identify the prisoner and was unsure whether the prisoner was appellant.

A third suppression hearing was held on October 5, 1998. The State offered testimony from former deputy Moreno, who testified that he was told during his shift on November 28th that appellant wanted to see him. Although the court initially reserved its ruling on the motion to suppress, it denied the motion on the first day of the trial.

Following the testimony of witnesses and the introduction of evidence that included photographs of the victim, an autopsy report, and appellant's confession, the State rested. Counsel for appellant then moved for a directed verdict and argued that the State failed to produce evidence that identified the victim as Sammons. The motion was denied. Appellant then rested and renewed his motion. Again, the motion was denied. After deliberating, the jury returned a verdict that found appellant guilty of the lesser-included offense of second-degree murder. Appellant argues on appeal that the trial court erred in 1) denying his motion for directed verdict because the State failed to present sufficient evidence of the victim's identity; and 2) denying appellant's motion to suppress his confession.

Denial of Directed Verdict

Motions for directed verdict are considered challenges to the sufficiency of the evidence. See Smith v. State, 68 Ark. App. 106, 108, 3 S.W.3d 712, 714 (1999). This court reviews sufficiency of the evidence challenges by considering whether the evidence, when viewed in favor of the verdict, supports the conviction. See Harmon v. State, 340 Ark. 18, 8 S.W.3d 472 (2000). Once this test is met, the evidence is deemed substantial, i.e., forceful enough to compel a conclusion without resorting to mere speculation. See Wortham v. State, 65 Ark. App. 81, 82, 985 S.W.2d 329, 329 (1999). When considering a sufficiency of the evidence challenge, we do not weigh evidence presented to a fact finder, or consider credibility issues. See Harmon, supra. Instead, we focus solely on evidence that leans toward a finding of guilt, and view that evidence in the light most favorable to the State. See Harmon, supra.

Corpus delicti is defined as "the body of the crime." See Hays v. State, 230 Ark. 731, 733, 324 S.W.2d 520, 522 (1959). Three elements constitute corpus delicti in a homicide case: 1) the fact of death; 2) the identification of the body as that of the person alleged to have been murdered; and 3) the victim's death was caused by the criminal act of another. See Hall v. State, 209 Ark. 180, 185, 189 S.W.2d 917, 920 (1945).

In Brewer v. State, 257 Ark. 51, 513 S.W.2d 914 (1974), the appellant argued that the State failed its burden of proof because the physician who performed an autopsy of the body was unable to testify about the identity of the body. Our supreme court disagreed and observed that pictures of the body, which appellant identified as his wife, were introducedinto evidence. See Brewer, supra.

Here, the jury was presented with ample evidence that the victim was Willard Michael Sammons. The State introduced testimony from police officers who stated that they discovered a body on the premises of the church. Appellant's cousin, Bobby Forrester, testified that he followed appellant to the church, and witnessed appellant "kick Sammons twice," once in the head with his work boots. Dr. Stephen Erickson, an associate medical examiner with the Arkansas State Crime Laboratory, testified that he conducted an autopsy on a person identified as Willard Sammons. Dr. Erickson repeatedly referred to the victim as Willard Sammons, and identified photographs that were admitted into evidence as photographs of Willard Sammons. Additionally, the autopsy report, which was also admitted into evidence, identified Sammons as the person on whom the autopsy was conducted. Counsel for appellant did not object to Dr. Erickson's reference to the victim as Willard Sammons, and did not object to the admission of the autopsy report.

Counsel for appellant did not dispute the victim's identity as Sammons, and repeatedly referred to the victim as "Mr. Sammons" during the trial. When questioning Bobby Forester, appellant's counsel asked "He kicked Mr. Sammons twice and got in your car?" At another point, counsel stated "basically what you did when you found out that Mr. Sammons had passed away." Still further in the questioning of Forester, appellant's counsel stated "did you ever - - when he told you that Mr. Sammons was dead, that he'd heard it on the news that Mr. Sammons was dead, did you have any idea that that's the situation you were in when you left that night, the night before?" Again, during cross examination ofForester, appellant's counsel asked "going back to when you first woke up and heard Danny in there with Mr. Sammons at your trailer." Also, "you go out, follow Danny over there, see him walk around the front of the truck, kick Mr. Sammons. He gets in your car and that's it." Indeed, as the parties were addressing the admissibility of photographs during a pre-trial hearing, counsel for appellant stated, "I think we would stipulate that Mr. Sammons is deceased and that it was a beating injury." Based on the foregoing, we hold that the trial court did not err in denying appellant's motion for a directed verdict based on the identity of the victim as Sammons.

Denial of Motion to Suppress

When we review a trial court's decision to deny a motion to suppress, we make an independent determination based on the totality of the circumstances. See Tabor v. State, 333 Ark. 429, 971 S.W.2d 227 (1998).

Confessions made during custodial interrogations are presumptively involuntary, and the State bears the burden of proving by a preponderance of evidence that a waiver and confession are voluntarily made. See Davis v. State, 330 Ark. 76, 953 S.W.2d 559 (1997). To prove voluntariness, the State must show 1) that the waiver was voluntary; and 2) that the waiver was knowingly and intelligently made. See Wright v. State, 335 Ark. 395, 983 S.W.2d 397 (1998). To determine whether a statement is voluntary, we consider the age, education, and intelligence of an accused. See id., 983 S.W.2d 397. We also consider the length of the detention, whether the questions were repeated and of a prolonged nature, whether an accused lacked advice concerning his constitutional rights; whether physicalpunishment was used; statements made by officers; and the vulnerability of the accused. See id., 983 S.W.2d 397. The fact that a person is no stranger to the criminal justice system is also a factor to consider when determining if a custodial confession is voluntary. See id., 983 S.W.2d 397.

When there is no evidence of coercion, a voluntary statement may be admissible, even when an accused previously refused to make a statement. See Wright, 335 Ark. 395, 983 S.W.2d 397. To determine whether a statement that is made after an accused has invoked his right to counsel was voluntary, we analyze 1) whether the accused initiated further conversation; and 2) whether the accused knowingly and intelligently waived his right to counsel by initiating further communication with the police. See Chase v. State, 334 Ark. 274, 281, 973 S.W.2d 791, 794 (1998).

Witness credibility is a matter for the trial court, and this court defers to the superior position of the trial court to assess demeanor and testimony presented at trial. See Tabor, 333 Ark. 429, 971 S.W.2d 227. When there is conflicting testimony concerning the circumstances surrounding a custodial confession, the trial court must resolve the conflict. See id., 971 S.W.2d 227. It is not mandatory that the trial court believe the testimony of any witness, particularly the testimony of an accused who stands to benefit the most from self-serving testimony. See id., 971 S.W.2d 227. When an accused testifies that his confession was the result of violence, threats, coercion, or an offer of a reward, the State bears the burden of producing all material witnesses that were connected to the confession. See Foreman v. State, 321 Ark. 167, 173, 901 S.W.2d 802, 805 (1995).

Turning to the instant case, appellant relies upon Foreman for the proposition that the State was required to produce all material witnesses of the confession. He argues that because the State failed to produce a witness to testify that appellant initiated contact with the officers following his refusal to talk without an attorney present, the trial court erroneously suppressed his confession. However, because Foreman applies to situations in which an accused presents testimony that the confession was the result of violence, threats, coercion, or promises; Foreman is easily distinguishable from the case at bar. Appellant did not argue below, and does not argue now that his confession was so induced. Therefore, Foreman is inapplicable to the case at bar.

Based on the totality of the circumstances, the trial court's denial of appellant's motion to suppress was not clearly erroneous. The trial court heard testimony from Lloyd Baker that he worked at the jail on November 27th or November 28th, that he remembered a prisoner asking him to speak with Deputy Moreno, and that he went and got the deputy who then spoke to the prisoner. Deputy Moreno testified that while he was at the Sheriff's office on November 28th, someone told him that appellant was "ready to talk." Moreno stated that he then went to appellant's cell and asked him if he was ready to talk. Appellant told Moreno "yes," and Moreno relayed the information to Officers Martin and Garner. Martin and Garner testified that Moreno told them that appellant wanted to talk with them.

The officers' testimony was corroborated by a transcribed videotaped confession in which appellant was specifically asked if he 1) wanted to speak with the officers without anattorney present; and 2) had initiated contact with the officers by speaking with a jailer and telling the jailer that he wanted to speak with them. Appellant answered both questions yes. The State also introduced two Miranda forms. The first form, completed at 1:50 a.m. on November 28, 1997, was initialed by appellant and indicated that appellant understood his rights. The form noted that appellant refused to sign the portion of the form regarding his waiver to talk with the officers without an attorney present. The second Miranda form was completed at 3:30 p.m. on November 28, 1997. On this form, appellant again indicated that he understood his rights, and acknowledged the waiver of his right to have counsel present by signing the form.

Appellant directs us to his conversation with Garner that occurred while the detectives escorted him to jail as proof that the officers never stopped interrogating him. A review of the record does not support appellant's contention. It is undisputed that once appellant refused to talk without the presence of counsel, the officers escorted him to the jail. Both officers testified that as they walked appellant to the jail, appellant asked them what was going on. After the officers told him what they wanted to talk with him about, appellant denied that he knew Sammons or had ever seen him before. Garner testified that he then told appellant that he could not look him in the eye and deny that he knew Sammons or that Sammons was at his house or that he had been with Sammons at the church. When appellant told Garner that he could not do that, Garner testified that he told appellant that after he had talked with his attorney, if he wanted to talk with the officers to notify one of the jailers. The record reveals that the officers did not speak with appellant again until approximatelyfourteen hours later. It is not disputed that the officers did this only after they re-read appellant his rights and obtained appellant's signature showing he understood his rights and waived them. Based on this body of proof, we cannot hold that the trial court's decision denying appellant's suppression motion was clearly erroneous. Accordingly, we affirm the conviction and sentence.

Affirmed.

Pittman and Roaf, JJ., agree.

1 During the interview, the following exchange took place:

Martin: Do you understand your rights that we read to you?

Johnson: Yes sir.

Martin: And those are your initials by each one of those responses?

Johnson: Yes sir.

Martin: And this is your signature at the bottom wishing to speak with us?

Johnson: Yes sir.

Martin: Last night, we spoke to you and advised you of the same rights and you wished to have an attorney present at that time and wished not to speak with you. Do you wish now to speak to us without an attorney present?

Johnson: Yes sir.

Martin: You've initiated the contact and had a message sent to us that you wish to speak with us. Is that correct?

Johnson: Yes sir.