Justin Anderson v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JUDGE JOSEPHINE LINKER HART

DIVISION I

JUSTIN ANDERSON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR02-582

February 26, 2003

APPEAL FROM THE LAFAYETTE COUNTY CIRCUIT COURT

[NO. CR-2000-67-2]

HONORABLE JIM HUDSON, CIRCUIT JUDGE

AFFIRMED

A jury found appellant, Justin Anderson, guilty of attempted capital murder, and he was sentenced to fifty years' imprisonment in the Arkansas Department of Correction. Appellant raises several issues on appeal, generally covering five areas: (1) the trial court's denial of a motion to suppress appellant's confessions; (2) the trial court's denial of appellant's motion to preclude the admissibility of evidence regarding the theft from a residence of two guns, one of which was used to commit the charged crime; (3) the trial court's refusal to declare a mistrial or impanel a new jury after certain comments and conduct by the State and the trial court during voir dire; (4) the trial court's refusal to retry the case with a change of venue; and (5) the trial court's refusal to grant a mistrial as a result of cumulative error. We affirm.

Because appellant does not challenge the sufficiency of the evidence to support the conviction, we will not discuss the facts in detail. The basis for the attempted capital murdercharge was the October 6, 2000, shooting of Roger Solvey by appellant when appellant

entered the cab of Solvey's tractor-trailer and shot him with a pistol. We also note that, as stated during oral argument by appellant's appellate counsel, some of the issues raised in this case will be similarly raised in the appeal of appellant's death-penalty capital-murder conviction for the October 12, 2000, shooting of Clara Creech, which the Arkansas Supreme Court currently has before it on appeal. See Justin Anderson v. State, CR02-910. We attempted to certify the case at bar to the Arkansas Supreme Court because of the similarity of the issues and because this conviction served as an aggravating circumstance in the capital- murder case. The supreme court, however, declined to accept certification.

Our first issue is whether the trial court properly refused to suppress appellant's confessions. At the suppression hearing, appellant did not present any evidence. The State presented the testimony of Jeff Jester, Mike Loe, John Bishop, and Jerry Digman, all members of the Arkansas State Police. Jester was involved in a murder investigation of Clara Creech, and around 2:30 p.m., on October 12, 2000, he and another officer, Cleve Barfield, went to appellant's residence and asked appellant to accompany them for questioning. Jester stated that appellant may have been handcuffed--he did not recall--but appellant was not arrested. According to Jester, Barfield told appellant that he was not under arrest and was free to leave at any time. Jester also stated that Barfield Mirandized appellant. They then drove appellant to the Lafayette County Sheriff's Department.

Loe and Bishop were also investigating appellant's involvement in Creech's murder. Loe and Bishop began their interview with appellant at 5:50 p.m. Loe read appellant hisMiranda rights, and in the presence of Loe and Bishop, appellant executed a waiver of those rights. They opined that appellant appeared to understand those rights, and appellant agreed to talk to them. The officers did not make any promises or threats and allowed appellant to take breaks during the interview.

That same day, Bishop and Loe had interviewed appellant's brother, Maurice Anderson, who stated that appellant had committed Creech's murder. After telling appellant this, the officers read appellant his brother's statement. Sometime after midnight, appellant was taken to see his brother, even though appellant did not want to see him. Afterwards, appellant admitted to Jester that he, and not his brother, had murdered Creech. Digman and Jester then interviewed appellant, and the officers affirmed that appellant was never threatened or coerced, and that appellant never requested counsel. The interview was taped and dated October 13 at 1:48 a.m. During the interview, appellant was asked if he understood the rights that were previously read to him, and appellant stated that he did. Appellant admitted that he murdered Creech.

Appellant then took the officers to the location of a weapon hidden near a Masonic lodge. While returning to the jail, Digman asked appellant about the Solvey shooting, and appellant said that he would talk about it when they returned to the jail. When they returned, another taped interview began at 2:26 a.m., and appellant again stated that he understood the rights that were previously read and explained to him. During the interview, appellant admitted that he had shot Solvey. According to Jester, the statement was free and voluntary.

In reviewing a trial judge's ruling on a motion to suppress, we make an independent determination based upon the totality of the circumstances, reversing only if the ruling is clearly against the preponderance of the evidence. Fairchild v. State, 349 Ark. 147, 157, 76 S.W.3d 884, 890 (2002). There are two components to the inquiry into the validity of a defendant's waiver. First, we examine whether the statement was voluntary, that is, whether the statements were the product of a free and deliberate choice rather than intimidation, coercion, or deception; in making our determination we look to the defendant's age, education, and intelligence, the absence of advice as to his constitutional rights, the length of his detention, the repeated and prolonged nature of questioning, and the use of physical punishment. Smith v. State, 334 Ark. 190, 204, 974 S.W.2d 427, 433-34 (1998). Second, we examine whether the waiver was knowingly and intelligently made, focusing upon whether 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, as well as whether the accused was uncoerced by police when he made the choice to waive his rights. Id. An accused's statement made while in custody is presumed involuntary, and because the State bears the burden of proving by a preponderance of the evidence that it was given voluntarily and was knowingly and intelligently made, the State must produce all material witnesses who were connected with the controverted confession or give adequate explanation for their absence. Fairchild, 349 Ark. at 158, 76 S.W.3d at 891.

In his arguments on this point, appellant first asserts that the State failed to produce all material witnesses at the suppression hearing. While the State bears the burden ofproducing all material witnesses, such a burden does not arise where there is no evidence to controvert. Fairchild, 349 Ark. at 159, 76 S.W.3d at 891. Appellant did not testify at the suppression hearing. Thus, in the absence of any evidence to establish coercion, the State was not required to produce Barfield or explain his absence.

Next, appellant states, "Critically, upon [appellant's] argument at the Suppression Hearing that the State failed to follow Ark. R. Crim. P. 2.3, the State still did not address whether [appellant] had been informed that he had a legal right not to go to the station for questioning and could legally refuse to talk at any time." Appellant, however, does not elaborate with further argument or citations to authority. Rule 2.3 provides that "[i]f a law enforcement officer acting pursuant to this rule requests any person to come to or remain at a police station, prosecuting attorney's office or other similar place, he shall take such steps as are reasonable to make clear that there is no legal obligation to comply with such a request." An oral admonition of freedom to leave is only one factor to be considered in our analysis of the totality of the circumstances surrounding compliance with Rule 2.3. Shields v. State, 348 Ark. 7, 11-12, 70 S.W.3d 392, 394 (2002). Here, Jester stated, without objection, that Barfield told appellant that he was not under arrest and was free to leave at any time and that Barfield Mirandized appellant. Given that this answers appellant's objection, we conclude the appellant's argument is without merit. Moreover, if a police officer has probable cause to arrest, failure to give a Rule 2.3 warning is irrelevant. Efurd v. State, 334 Ark. 596, 600, 976 S.W.2d 928, 931 (1998). Here, appellant notes in his brief that "Barfield was sent to question [appellant] after [appellant's brother] gave his statementnaming [appellant] as the person who killed Ms. Creech...." Given these facts, we conclude that a Rule 2.3 warning was not required because there was probable cause to arrest appellant.

Appellant argues that his confession was coerced because he presented evidence of his lack of mental capacity.1 We, however, cannot find in the record where this evidence was presented to the court on this issue. We also note that appellant does not present argument in his brief that his speaking to his brother was coercive. He does, however, argue that his interrogation was coerced because it lasted for several hours. While the length of detention is an issue in an analysis of voluntariness of a confession, it is not determinative. Williams v. State, 338 Ark. 97, 114, 991 S.W.2d 565, 574 (1999). Despite the length of the detention, appellant was given the opportunity to take breaks during questioning. According to Bishop, appellant took a break after signing the Miranda waiver at 5:50 p.m., at 9:00 p.m., and at 11:00 p.m. Further, appellant was Mirandized twice, executing a Miranda waiver at 5:50 p.m., and he was reminded of his Miranda warnings immediately before each interview. There was also testimony that no promises or threats were made. Thus, we cannot conclude that his confession was coerced.

Appellant also argues that his Miranda rights should have been repeated prior to the giving of his statements. Miranda warnings must be repeated only when the circumstanceshave changed so seriously that the accused's answers are no longer voluntary, or the accused is no longer making a knowing and intelligent relinquishment or abandonment of his rights. Conner v. State, 334 Ark. 457, 473, 982 S.W.2d 655, 663 (1998). The lapse between warnings as well as the number of prior warnings are relevant concerns. Id. Here, appellant was read his Miranda rights during his first encounter with the police at around 2:30 p.m. At 5:50 p.m., his rights were read and explained to him, and he signed a waiver of those rights. Prior to the first taped interview, he was asked if he understood the Miranda rights that were previously read to him. Appellant acknowledged that he did. Prior to the second interview, he was asked if he still understood his rights as they were read and explained to him earlier. Again, he acknowledged that he did. Under the totality of the circumstances, we conclude that the trial court did not err in refusing to suppress appellant's confession.

Appellant next argues that testimony and portions of appellant's confessions referring to appellant's burglary of the Jeannie Magee residence four days before the Solvey shooting and the theft of two guns from the residence should not have been introduced into evidence. We, however, conclude that introduction of the evidence was admissible as part of the res gestae of the attempted capital murder.

The evidence established that one of the two guns stolen from the residence was found hidden outside of a Masonic lodge, and ballistics evidence established that it was used to shoot Solvey. The second gun was found hidden in the Harriet Conner residence where appellant resided. According to testimony presented at trial, both guns were stolen from the Jeannie Magee residence. Shells were also stolen from the Magee residence. Blood wasfound on a briefcase found in the Magee residence, and DNA testing established that it was appellant's blood. Several bullets taken from the Conner residence were also introduced into evidence.

The Arkansas Supreme Court has addressed the law on admission of res gestae evidence:

[T]he general rule is that evidence of other crimes by the accused, not charged in the indictment or information and not a part of the same transaction, is not admissible at the trial of the accused; however, evidence of other crimes is admissible under the res gestae exception to the general rule to establish the facts and circumstances surrounding the alleged commission of the offense. Under the res gestae exception, the State is entitled to introduce evidence showing all circumstances which explain the charged act, show a motive for acting, or illustrate the accused's state of mind if other criminal offenses are brought to light. Specifically, all of the circumstances connected with a particular crime may be shown to put the jury in possession of the entire transaction. Where separate incidents comprise one continuing criminal episode or an overall criminal transaction, or are intermingled with the crime actually charged, the evidence is admissible. Res gestae testimony and evidence is presumptively admissible.

Gaines v. State, 340 Ark. 99, 110, 8 S.W.3d 547, 554 (2000) (citations omitted). Further, the Arkansas Supreme Court has stated that the State is entitled to prove its case as conclusively as it can. Bledsoe v. State, 344 Ark. 86, 90, 39 S.W.3d 760, 763 (2001).

Under the res gestae exception, the State was entitled to establish that, prior to the shooting, appellant possessed the guns. Here, the DNA evidence indicated that appellant was at the Magee residence, where the guns were stolen. The presence of one of the guns in the residence in which appellant was residing further connected appellant to the two guns. Thus, the DNA evidence, coupled with the presence of one of the stolen guns at theresidence, indicated that appellant was also connected to the gun that was found hidden near a Masonic lodge and that was determined to be the gun used to shoot Solvey. See Bledsoe, supra; Hart v. State, 66 Ark. App. 82, 987 S.W.2d 759 (1999).

Next, appellant raises several arguments in support of his claim that the trial court should have either granted a mistrial or impaneled a new jury because of allegedly improper comments and conduct by the State and the trial court during voir dire tainted the jury. In his argument, he cites to several instances of alleged misconduct. He notes that one potential juror stated that she could not serve on the jury because she was "a sister-in-law of Clara Creech." This juror was excused for cause, but she then sat with the Creech family, who was present in the court room. Further, he notes that another potential juror stated that she had heard about Creech. The defense struck her as a juror. He notes also that the prosecutor spoke to the Creech family as the jury panel was leaving the court room. In sum, appellant's argument on this point amounts to a litany of instances of alleged misconduct by the State and the trial court that are followed by his assertion of the general proposition that he is entitled to a fair trial. Appellant's argument ignores the well-established legal principle in Arkansas that jurors are presumed to be unbiased, and the burden is on the appellant to show otherwise. Kelly v. State, 350 Ark. 238, 241, 85 S.W.3d 893, 895 (2002). It is apparent from the record that appellant had an opportunity to question, including questioning individually at the bench, potential jury members regarding any bias associated with any knowledge that they may have had regarding the Creech murder, and appellant does not suggest that any particular juror who was seated was biased. We conclude that there was no error.

In this same point, appellant further notes that the prosecutor made "improper comments" to the jury panel, though it is apparent from the record that appellant did not object to the remarks. Appellant then notes that he objected to remarks by the prosecutor regarding the range of punishment and the meaning of "criminal attempt" and "premeditation and deliberation." He states that all of these remarks were "obviously improper" and were "meant to inflame the jury and seal [appellant's] fate." He also asserts that the court "unevenly and unfairly conduct[ed]" voir dire. Further, he states, in sum, that "[a]fter the State used its only two peremptory strikes to rid the panel of two more blacks, [appellant] made a Batson objection due to the exclusion of blacks by the court and the prosecutor." However, other than asserting that these instances constituted reversible error, he does not cite any authority or make convincing argument explaining why these instances constituted reversible error. We will not consider arguments that present no citation to authority or convincing argument. Kelly, 350 Ark. at 241, 85 S.W.3d at 895. We note that appellant was permitted by this court to file a brief that exceeded the twenty-five page limit. However, we will not address the arguments.

Appellant's final two points are that the multiple errors that occurred warranted that he be given a new trial with a change of venue. His list of alleged errors concern the matters discussed in the previous points. This court does not recognize the doctrine of cumulative error where there is no error to accumulate. Robinson v. State, 348 Ark. 280, 299, 72 S.W.3d 827, 839 (2002). Because we have concluded that the trial court did not commit any error with regard to those points, we must likewise conclude that a new trial is not warranted.Consequently, we affirm appellant's conviction.

Affirmed.

Pittman and Gladwin, JJ., agree.

1 Although a forensic report was part of the record, it was never entered into evidence during the suppression hearing or at trial, and no argument was made at the hearing or at trial regarding its effect.