Benjamin Oliver v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION IV

BENJAMIN OLIVER

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR02-960

December 10, 2003

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CR 99-4342]

HONORABLE JOHN W. LANGSTON, CIRCUIT JUDGE

AFFIRMED

Josephine Linker Hart, Judge

A jury convicted appellant, Benjamin Oliver, of first-degree murder, and he was sentenced to sixty years' imprisonment.1 On appeal, appellant argues that the circuit court erred in refusing to suppress a statement he made to police, asserting that the statement was coerced. We affirm.

At a suppression hearing, Detective Steve Moore of the Little Rock Police Department testified that beginning at 10:25 a.m. on October 11, 1999, he questioned appellant at the police department for approximately one hour. Prior to taking appellant's statement, he read to

appellant his Miranda rights, and appellant signed a rights form. Moore testified that appellant's speech was coherent and understandable; he did not see any signs of intoxication, impairment, or slurred or pressured speech; and he did not recall that appellant's one good eye was bloodshot. He further testified that he did not threaten or coerce appellant into making a statement. He also stated that he did not strike the table or suggest that he would remove a "peace bond" between appellant's family and the victim's family. Moore further testified that after he ended his questioning, Detective Eric Knowles questioned appellant and obtained a taped statement from him at 3:15 p.m.

Knowles testified that he arrived at 11:15 or 11:30 a.m. He stated that appellant was advised of his Miranda rights and signed the rights form, and appellant indicated that he understood the rights and did not have any questions about them. According to Knowles, appellant waived his rights and gave a taped statement. He further testified that appellant did not appear intoxicated and that his speech was coherent and clear. Appellant told Knowles that he could read and write and had a ninth-grade education. Knowles testified that he did not promise appellant anything to induce him to waive his rights, that he did not coerce or threaten appellant, and that he did not slap his hand on the table or threaten to remove a "peace bond" between appellant's family and the victim's family.

Detective Chuck Rea testified that he was present when Knowles taped appellant's statement. In his presence, Knowles went back over appellant's Miranda rights and made sure that appellant understood them. He stated that he did not threaten, abuse, or intimidate appellant or force him to give a statement, and he did not promise appellant anything. Further, he testified that he did not see Knowles threaten, abuse, or intimidate appellant. He also testified that appellant did not appear to be intoxicated.

During the taped statement, appellant acknowledged that he had been read his Miranda rights, understood them, had no questions about them, and had signed a rights form. He also indicated that he had signed a waiver of those rights and that he understood the waiver and hadno questions about it. Further, he stated that he could read and write and had a ninth-grade education. Appellant also stated that he had not been abused or hurt while being questioned and had been treated well. In his statement, appellant admitted that he had shot the victim.

At the hearing, appellant testified that he had been smoking marijuana and drinking beer on the day of the interrogation. He further testified that he confessed because the interrogating officers threatened him with physical violence and the removal of a restraining order issued against the victim's family. Also, he stated that Rea was not present when he was threatened.

Appellant argues that because his confession was coerced, the circuit court erred in refusing to suppress his confession. While acknowledging that the credibility of the witnesses is for the circuit court to determine, he asserts that "when a witness's testimony is plainly incredible, the appellate court may choose to determine for itself the weight to give that testimony," and he concludes that this court should review the credibility of Knowles's testimony.

In support of his argument, appellant points out that Knowles admitted that it was common to lie to a defendant about the strength of the case in order to elicit a confession and that from time to time he did that. Appellant also notes that Knowles did not remember Moore slapping the table, but he could not testify that Moore had not done so. Appellant further states that while Knowles testified that he observed nothing that indicated appellant was under the influence of drugs or alcohol, appellant was wearing yellow-tinted sunglasses. Appellant then reiterates his own testimony that in response to police pressure, he gave a statement that was untrue; that he was under the influence of drugs; that he was coerced and coached by the detectives; that they intimidated him and threatened him and his family; and that they threatened to remove a "peace bond" between the victims's family and appellant's family. He also observes that he was previously questioned but did not confess in those instances and that his alibi witnesses placed him at home at the time of the shooting.

A statement made while in custody is presumptively involuntary, and the burden is on the State to prove by a preponderance of the evidence that the custodial statement was voluntary and was knowingly and intelligently made. Grillot v. State, ___ Ark. ___, 107 S.W.3d 136 (2003). In determining whether a waiver of Miranda rights is voluntary, this court examines whether the confession was the product of free and deliberate choice rather than intimidation, coercion, or deception. Id. In reviewing the circuit court's ruling on the voluntariness of a confession, we make an independent determination based upon the totality of the circumstances, and the ruling will be reversed only if it is clearly against the preponderance of the evidence. Id. The circuit court resolves any conflict in the testimony of different witnesses. Id.

Clearly, on the issue of the voluntariness of appellant's statement, appellant's testimony and the detectives' testimonies conflicted on a number of facts, including whether the detectives used threats and intimidation. As we previously stated, any conflict in the testimony of different witnesses is for the trial court to resolve. The circuit court considered the testimony of the detectives and the conflicting testimony of appellant and concluded that the statement was voluntary. Both Moore and Knowles denied that they threatened the removal of the "peace bond." Further, while appellant observes that Knowles testified that he did not remember whether Moore slapped the table, Moore testified that he did not strike the table. Again, it is the purview of the circuit court to consider the credibility of the witnesses. Based upon the totality of the circumstances, the circuit court's refusal to suppress appellant's statement was not clearly against the preponderance of the evidence, and there is nothing about Knowles's testimony that we consider "incredible."

As for allegations that Knowles lied about the strength of the case, Knowles testified that it was very possible that he told appellant that the victim had identified him at the crime scene, but he could not imagine telling appellant that because appellant already knew that the victim had identified appellant's brother. We cannot conclude that Knowles's admission indicates that his testimony was incredible. Further, our supreme court has previously concluded that a misrepresentation of fact does not render a statement involuntary so long as the means employed are not calculated to procure an untrue statement and the confession is otherwise freely and voluntarily made with an understanding by the accused of his constitutional rights. Conner v. State, 334 Ark. 457, 982 S.W.2d 655 (1998). Knowles testified that appellant already knew that the victim had identified appellant's brother. During the confession, appellant stated that he had been told by a neighbor that the victim had been shot by appellant's brother. Given this evidence, we cannot say that Knowles's "possible" assertion rendered appellant's statement involuntary.

Appellant testified that he was under the influence of drugs and alcohol, and he notes that he was wearing glasses at the time of the interview. When an appellant claims that his confession was involuntary because he was intoxicated, the level of his comprehension is a factual matter to be resolved by the circuit court, and the test of voluntariness of one who claims intoxication at the time of waiving his rights and making a statement is whether the individual was of sufficient mental capacity to know what he was saying--capable of realizing the meaning of his statement--and that he was not suffering from any hallucinations or delusions. Grillot, supra. Here, the officers testified unequivocally that appellant did not appear to be intoxicated. Again, it is for the circuit court to resolve conflicts in the testimony of different witnesses, and appellant's wearing of glasses was a fact to be considered by the court. We, however, cannot conclude that Knowles's testimony was "incredible." Further, appellant does not assert that he lacked the requisite mental capacity or that he was suffering from hallucinations or delusions. Moreover, we observe that appellant cogently answered questions asked by the investigating officers. Thus, we cannot say that the circuit court's ruling was clearly against the preponderance of the evidence.

Affirmed.

Bird and Vaught, JJ., agree.

1 In appellant's first appeal, we ordered a limited remand of the case so that the circuit court could hear and consider the testimony of an officer who was not present at the first hearing on appellant's motion to suppress his statement. Oliver v. State, 77 Ark. App. 202, 72 S.W.3d 547 (2002). After remand, appellant filed a second appeal, and we ordered counsel in an unpublished decision to rebrief because his no-merit brief did not comply with Anders v. California, 386 U.S. 738 (1967), and Ark. Sup. Ct. R. 4-3(j) (2003). Oliver v. State, CACR02-960 (June 25, 2003).