Eric L. Shead v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISION III

ERIC L. SHEAD

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 02-956

MAY 14, 2003

APPEAL FROM THE WASHINGTON

COUNTY CIRCUIT COURT

[NO. CR-2002-288-1]

HONORABLE WILLIAM A. STOREY,

JUDGE

AFFIRMED

Appellant Eric L. Shead appeals his convictions for multiple counts of aggravated robbery and kidnapping, and one count of residential burglary. Appellant argues that the trial court erred in denying his motion to suppress his custodial statement. We disagree and affirm.

When reviewing a trial court's decision on a motion to suppress, this court makes an independent determination based on the totality of the circumstances. Griffin v. State, 347 Ark. 788, 67 S.W.3d 582 (2002); Burris v. State, 330 Ark. 66, 954 S.W.2d 209 (1997). We will reverse only if the trial court's decision was clearly against the preponderance of the evidence. Wofford v. State, 330 Ark. 8, 952 S.W.2d 646 (1997). In our review, we defer to the trial court in assessing witness credibility. Griffin, supra; Laime v. State, 347 Ark. 142,60

S.W.3d 464 (2001), cert. denied, 122 S. Ct. 1914 (2002); Rankin v. State, 338 Ark. 723, 1 S.W.3d 14 (1999).

An accused's statement made while in custody is presumed involuntary, and the State bears the burden of proving by a preponderance of the evidence that it was given voluntarily and was knowingly and intelligently made. Brown v. State, 347 Ark. 44, 60 S.W.3d 422 (2001); Barcenas v. State, 343 Ark. 181, 33 S.W.3d 136 (2000); Smith v. State, 334 Ark. 190, 974 S.W.2d 427 (1998). First, this court looks to see if the confession was the product of free and deliberate choice rather than intimidation, coercion, or deception. Diemer v. State, 340 Ark. 223, 9 S.W.3d 490 (2000). In determining whether a confession was voluntary, we consider the following factors: age, education, and intelligence of the accused, lack of advice of his constitutional rights, length of detention, the repeated and prolonged nature of the questioning, or the use of physical punishment. Humphrey v. State, 327 Ark. 753, 940 S.W.2d 860 (1997). Essentially, the question is whether the will of the accused has been overborne. Hill v. State, 344 Ark. 216, 40 S.W.3d 751 (2001). Second, we examine whether the waiver of rights was knowingly and intelligently made. Jenkins v. State, 348 Ark. 686, 75 S.W.3d 180 (2002). The "waiver of rights" argument focuses 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. This proof must be by a preponderance of the evidence. Riggs v. State, 339 Ark. 111, 3 S.W.3d 305 (1999).

Appellant does not challenge the sufficiency of the evidence, so we set forth the events as related to questioning. On the evening of January 3, 2002, at about 9:30 p.m. several friends were watching television at Kenneth Johnson's apartment in Fayetteville, Arkansas. Two men entered the apartment, brandished weapons, and robbed the occupants of money, jewelry, and other items. Johnson was able to call 911 and give information about the get-away vehicle to the Fayetteville Police Department. Officers were dispatched to the scene.

Officer Lee was en route when he saw a car matching the description. Lee followed the car onto and out of a fast-food parking lot, at which time the car accelerated to a high rate of speed. Lee pursued and saw the occupants throw items from the passenger side. Lee said that the car reached 90 m.p.h. in the chase, ran stop lights, and then failed to negotiate a curve on College Avenue and crashed into a tree. The occupants fled on foot.

Two suspects were found shortly thereafter trying to hide in close proximity to the crash site. Appellant was seen emerging from nearby woods about twenty minutes after the crash, attempting to walk away. Appellant was arrested at approximately 10:45 p.m., and was in possession of some of the stolen jewelry.

Appellant was questioned at 12:20 a.m. at the police station in an interview room. Detective Hartsfield tape recorded the interview. Hartsfield learned that appellant, age twenty-one, attended school through the eleventh grade and could read. Hartsfield then read each Miranda warning verbatim from a pre-printed form to appellant, asked appellant if he understood each one, and had appellant confirm that he understood by writing "yes" on theform following each warning. After the first five rights were read to him, appellant responded that he understood by saying "Yeah" after each one and writing "yes" on the form. With regard to the last right, appellant said he did not understand, as reflected in the transcribed tape:

Detective: Do you understand that you may waive your right to advice of counsel and your right to remain silent and you may answer questions or make a statement without consulting a lawyer if you so desire?

Appellant: I don't understand.

Detective: It means if you want to talk to me you can.

Appellant: Yeah.

Detective: And the last line reads- I have read this statement of my rights and I understand what my rights are. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me. Do you understand what coercion is?

Appellant: No sir.

Detective: Coercion is something like- hey, I'll pay you a thousand dollars to tell me whatever I want to hear.

Appellant: Yeah.

Detective: Alright? So if you understand all that I just need your signature here on the bottom.

Appellant signed the document. Hartsfield then asked appellant what happened that night, and appellant explained that he was in the car asleep and had no knowledge of anything until the high-speed chase started. The officer did not believe appellant, told him that "we don't play games up here" in Fayetteville, that he knew appellant was in an apartment that night where "some things went bad wrong," and that "honesty is the best policy." The officer then told him, "you're knee deep in this already" and that one of the other suspects would eventually talk and implicate the others. As appellant began talkingagain, the officer was convinced that appellant was lying, so he concluded the interview at 12:35 a.m.

As appellant was being walked back to jail, appellant insisted that they return to the interview room to get the truth out. The second interview took place at 12:40 a.m., the tape recorder was turned back on, and appellant admitted that he was a gunman in the robbery and that he took some jewelry. The interview ended at 12:58 a.m.

At the suppression hearing, Hartsfield testified that no threats, promises, or physical force was used on appellant to attain a confession. Hartsfield acknowledged that appellant was in a serious wreck and appeared to have a bump on his forehead, but said his motor skills were not impaired and he did not complain of any injuries. Hartsfield did not think that it affected appellant's ability to understand the questions or circumstances that night. Hartsfield testified that appellant did not appear to be under the influence of drugs or alcohol. Hartsfield said that he used legitimate police interview techniques in hopes that appellant would make a statement.

Appellant testified that he was injured in the car wreck, losing consciousness when he hit the windshield. Appellant said that he had many prior misdemeanor charges for which he went to court with attorneys, but this was the first felony such that he was unfamiliar with Miranda warnings. Appellant testified that he did not really understand what rights he was giving up. However, on cross-examination, appellant admitted that he knew that anything he said could be used against him at any time.

As to the interview, appellant believed that Hartsfield's initial interview technique made him feel coerced into confessing his participation in the crimes. He testified that Hartsfield "was giving me bad vibes; it was like I was going to get blamed for the crime." The trial judge denied the motion to suppress, finding appellant to have knowingly and intelligently waived his constitutional rights and to have freely and voluntarily given a statement.

After reviewing the totality of the circumstances, we are not persuaded that the trial judge's finding was clearly erroneous. With regard to appellant's physical well-being, it was a fact question as to whether he was well enough to go through the Miranda and interview process. Conflicts in the testimony and the extent of impairment are for the trial court to resolve. Riggs v. State, supra; Jones v. State, 323 Ark. 655, 916 S.W.2d 736 (1996); Trull v. State, 322 Ark. 157, 908 S.W.2d 83 (1995). Rational response to questioning is a legitimate factor for the trial court to consider. See Midgett v. State, 316 Ark. 553, 873 S.W.2d 165 (1994); McDougald v. State, 295 Ark. 276, 748 S.W.2d 340 (1988). During questioning, appellant's responses were appropriate to the questions, the officer did not perceive appellant to be impaired, and appellant did not mention that he was hurt or request medical attention. Appellant did not claim that he was incapable of waiving his rights due to injury until the suppression hearing. The trier of fact is not required to believe the testimony of any witness, especially that of the accused, since he or she is the person most interested in the outcome of the proceedings. Branscum v. State, 345 Ark. 21, 43 S.W.3d 148 (2001). On these facts, the trial court could conclude that appellant was capable of waiving his constitutional rights.

As to whether the waiver was knowingly and intelligently given, we are persuaded that appellant was aware and understood his rights as a twenty-one-year-old literate man who completed the eleventh grade. The rights were read to him exactly as written on the page, and two instances in which he expressed confusion were explained to him. Even defendants, age sixteen or fifteen, are capable of waiving their Miranda rights. See, e.g., Oliver v. State, 322 Ark. 8, 907 S.W.2d 706 (1995); Douglas v. State, 286 Ark. 296, 692 S.W.2d 217 (1985). See also Lowe v. State, 309 Ark. 463, 830 S.W.2d 864 (1992) (upholding denial of motion to suppress where Lowe, age twenty-nine and who had completed special education classes through the twelfth grade, was capable of driving, had been previously advised of his rights three times before in regard to other problems, and testified that he knew the Miranda rights meant he did not have to say anything; defense expert testified that he operated verbally in the mentally retarded range but could generally understand his rights; State expert testified that he functioned mentally as a nine-and-a-half year old and had the capability of asking the interrogator to clarify the matter).

We turn now to appellant's assertion that Hartsfield's method of questioning was coercive. We uphold the trial court's assessment that the officer did not place appellant under any duress or coercion. The use of psychological tactics by police officers is an acceptable means of interrogation. Noble v. State, 319 Ark. 407, 892 S.W.2d 477 (1995). Specifically, police officers may attempt to play on an accused's sympathies or explain tohim that honesty is the best policy, provided that the accused's decision to make a custodial statement is voluntary in the sense that it is a product of the accused's own free will. Conner v. State, 334 Ark. 457, 982 S.W.2d 655 (1998); Boone v. State, 334 Ark. 452, 976 S.W.2d 921 (1998); Noble, supra. In the initial interview, the officer made it clear that he did not believe appellant was telling the truth, that honesty is the best policy, and that he might be implicated by one of the other men involved. When appellant continued to talk, the officer did not continue to interrogate appellant but instead halted the interview. It was appellant's suggestion to resume questioning. A spontaneous statement is admissible because it is not compelled or the result of coercion under the Fifth Amendment's privilege against self-incrimination. Stone v. State, 321 Ark. 46, 900 S.W.2d 515 (1995).

Moreover, the supreme court rejected a similar argument in Boone v. State, supra. Boone, who had prior felony convictions, was arrested in connection with a murder investigation. Miranda rights were read to Boone, and he signed the form. Interrogation began more than two hours after his arrest. According to officers, Mr. Boone was lucid, responsive, and alert. Boone denied any involvement with the murder, commenting that he would not murder anyone because his own mother had been murdered. The detective then said that the murderer of Mr. Boone's mother was "man enough" to confess; Boone began to cry and questioning stopped. When an officer returned to talk to Boone, he was crying and remorseful and apologized for having lied earlier. Boone challenged the admissibility of his statement that followed as involuntary because it was the result of emotional coercion. The trial court denied the motion to suppress, and the supreme court upheld that decision onappeal, deciding that the interview tactics were not impermissible and that Boone's waiver of rights was knowing and voluntary. We conclude likewise in the present appeal.

Affirmed.

Stroud, C.J., and Crabtree, J., agree.