Wesley L. Roberts v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

CHIEF JUDGE JOHN F. STROUD, JR.

DIVISION II

WESLEY L. ROBERTS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CA 02-742

March 19, 2003

APPEAL FROM THE FULTON

COUNTY CIRCUIT COURT

[JV-2002-6-3]

HONORABLE STEPHEN CHOATE,

CIRCUIT JUDGE

AFFIRMED

On January 7, 2002, the State filed a petition seeking to have sixteen-year-old appellant, Wesley Roberts, adjudged a juvenile delinquent for allegedly committing the offense of theft of property valued at $240, a Class A misdemeanor. The case was tried in the juvenile division of the Circuit Court of Fulton County. Following a hearing, the juvenile judge concluded that the allegations were true and that appellant was a juvenile delinquent. He sentenced appellant to the Division of Children and Family Services/Youth Services Center, to be followed by six months' probation after release from the center. We affirm.

Appellant worked for Andy Woods at his Riverbend Restaurant in Mammoth Springs, Arkansas. On three different occasions, Woods noticed that money was missing

from the business. The third time, he notified the police. The missing money in this third incident had been in his briefcase, which was on his desk, but he did not personally see anybody take the money. During the investigation of the theft, appellant gave a statement to the police in which he admitted that he took the money on all three occasions and that he initially hid the money in the bathroom trash can. The money from the third incident was found in the men's bathroom, wrapped in a paper towel, and placed under the trash bag in a garbage can. Approximately $250 was recovered from the garbage can, and the serial numbers on those bills matched a list of serial numbers that was maintained by Woods.

For his sole point of appeal, appellant contends that the trial court erred in not suppressing the incriminating statement that he gave prior to trial. We find no error.

The State bears the burden of proving by a preponderance of the evidence the voluntariness of an in-custody confession. Bisbee v. State, 341 Ark. 508, 17 S.W.3d 477 (2000). While we do not reverse the trial court's finding unless it is clearly erroneous, we do make an independent determination based on the totality of circumstances, with all doubts resolved in favor of individual rights and safeguards, to determine whether the trial court's finding was erroneous. Id. We recognize, in our determination of whether a trial court's finding is clearly erroneous, that conflicts in testimony are for the trial court to resolve. Cox v. State, 345 Ark. 391, 47 S.W.3d 244 (2001).

A statement induced by a false promise of reward or leniency is not a voluntary statement. Bisbee, supra. False promises of leniency will invalidate a confession. Cox, supra. Often it is difficult to determine whether an officer's statement is a promise of reward

or leniency, a statement meant to deceive, or merely an admonishment to tell the truth. Pyles v. State, 329 Ark. 73, 947 S.W.2d 754 (1997). In instances where it is difficult to ascertain the meaning of a statement, the vulnerability of a particular defendant becomes important. Id. Relevant factors in determining whether a confession was involuntary are age, education, and the intelligence of the accused as well as the lack of advice as to his constitutional rights, the length of the detention, the repeated and prolonged nature of questioning, and the use of mental or physical punishment. Cox, supra.

Finally, with respect to any distinctions between promises and threats, our supreme court explained in Leach v. State, 311 Ark. 485, 488, 845 S.W.2d 11, 13 (1993):

Our research has turned up nothing to indicate that a threat is more odious per se than a promise. Rather, the real issue concerning statements made through hope or fear is based on broader considerations of voluntariness in light of the particular inducement, whatever its nature. See John W. Strong, McCormick on Evidence § 147 (4th ed. 1992); 1 W. LaFave Criminal Procedures § 6.1, § 6.2 (1984).

Consequently, what we have said in previous cases holds true here. We will examine all of the circumstances to determine whether a statement was voluntary, and if a promise or threat was made, we will look first to the police conduct and then to the vulnerability of the defendant. Davis v. State, 275 Ark. 264, 630 S.W.2d 1 (1982). And if a promise was made that was permissible and was kept, those are circumstances to consider in determining whether the statement was voluntary. See Tippit, supra; and Williams, supra; and Tippit v. Lockhart, 859 F.2d 595 (8th Cir. 1988).

Appellant's motion to suppress was handled as part of the hearing on the allegations; therefore, testimony concerning both was given at the same setting. However, for purposes of the issue raised in this appeal, we will primarily examine the testimony that relates to the custodial statement.

Michael Davis testified that he was a police officer in Mammoth Springs, and that based upon a report he received from Andy Woods on the morning of December 13, 2001, he interviewed appellant. He stated that he took appellant to the police station and called his mother, Penny Roberts. He said that he read the statement of rights to appellant in the presence of his mother, and that both of them signed the statement acknowledging their understanding.

Davis stated that after he obtained the statement of rights, he interviewed appellant. He said that in appellant's first statement he denied taking any money, but that he later admitted that he did. Davis explained that the interview took fifteen to twenty minutes from start to finish, and that during that time, appellant's mother was present. He said that appellant described how he took the money in that he took it out of the briefcase on Woods's table, wrapped it in a paper towel, and put it in the restroom.

Davis denied making any promises to appellant in return for the statement, denied threatening him, and denied that appellant was under duress. He said that there was a time span of about five minutes from when appellant denied the theft to when he admitted it. Davis said that he told appellant after his first statement that he was lying, that he was caught and there was no need to continue the lie, that they might have to call the state investigator and set up a polygraph, and that he had enough evidence to put appellant away for a long time. Davis explained that Mr. Woods had written down the serial numbers of the currency that was in his briefcase and that he provided that list to Davis. Davis said that he comparedthe numbers with the money that was recovered from the wastebasket in the restroom and that they all matched.

Appellant testified that he never took money from the restaurant. He said that on the morning of December 13, he went to the bathroom because he got there at 4:00 a.m. and drank a lot of Mellow Yello to try to wake up, so he took frequent trips to the bathroom. He said that when he came out, a co-worker told him that Kenny Couch, the night manager, wanted to see him. He explained that when he went back there, Officer Mike Davis was standing there and told him that some money was missing and frisked him. Appellant said that Davis found nothing on him, told him to return to work, and that they then called another employee back there. He said after the other employee returned, they called appellant back to ask more questions and took him to the police station at about 8:30 a.m. He said that he called his mother after they had been at the police station for about thirty minutes; that he had been talking with Davis, but that Davis did not go over the rights form until Ms. Roberts arrived. He said that with his mom present, Davis asked him what had happened; said that he was caught this time; told him that he knew he was lying; said that he was going to send appellant to the "big boys' house"; stated that he was going to call the state investigator; and told appellant that he was going to be put away for a long time.

Appellant stated that he changed his story after the first statement because Davis kept saying that he would haul him off that night and that he would not be able to go to Florida on a trip planned for the next week. Appellant also testified that Davis told him Andy Woods would be lenient with him and probably not press charges if he admitted to the theft; that his statements might have an effect on whether or not he would be kept in custody or released; and that things would go much easier on him and that he would be able to go home that day if he would just quit lying and tell him that he really took the money.

Appellant estimated that it took between thirty and forty-five minutes between the first and second statements; that his mother was present during both statements; that before he gave his second statement, Davis asked him if he had any money; and that he told Davis he had $300 at home that he had saved for a vehicle. Appellant explained that he apologized to Mr. Woods in the hopes that he would not press charges on him.

Penny Roberts, appellant's mother, testified that she was notified that Davis wanted to talk to her sometime between 8 and 9 a.m. on December 13; that after she arrived at the station, Davis read the rights to appellant; that Davis told appellant that he knew he was lying; and that Davis told him if he would just tell the truth and confess, he would get to go home that night and get to go to Florida for Christmas. She said that appellant denied taking the money quite a few times, but that Davis told him he had enough evidence to take him "off to play with the big boys." She said that Davis told appellant that if he made the statement that he took the money, he could go home with her that night. She explained that Davis told him that he would not get taken away that night, and that they wouldn't have to call the state police and put the money in a chamber to get the fingerprints off it.

The judge ruled that he was not going to suppress the statement and that the allegations in the petition were true.

Direct & Implied Promises/Threats of Continued Incarceration

The main thrust of appellant's argument on appeal is that his confession was extracted by direct and implied promises and threats of continued incarceration unless he confessed to the crimes which were being investigated, and thus the statement should have been suppressed. In support of that argument, he notes the following testimony: 1) his testimony that Officer Davis told him that Andy Woods would be lenient with him and probably not press charges if he admitted the theft; 2) his testimony that Officer Davis told him "that things would go much easier on him and that he would be able to go home that day - - which implies that he would be jailed otherwise - - if he confessed"; 3) his mother's testimony that Officer Davis said prior to the alleged confession that if appellant made a statement admitting criminal culpability, he would get to go home with her that night, they would not have to call the state police, and he would not have to be taken away that night.

The statements allegedly made by Officer Davis and relied upon by appellant in support of his argument for suppression come from appellant's or his mother's testimony alone. Officer Davis denied making any promises or threats, and he denied that any consideration was offered to appellant in exchange for his confession. The trier of fact has the right to accept that part of the defendant's testimony it believes to be true and to reject that part it believes to be false. Thomas v. State, 266 Ark. 162, 583 S.W.2d 32 (1979).

We conclude that based upon the totality of the circumstances, and resolving all doubts in favor of individual rights and safeguards, the trial court was not clearly erroneous in finding that the State had met its burden of proving that appellant's custodial statement was voluntary. Consequently, the evidence obtained as a result of appellant's statement wasnot tainted and did not require suppression. We, therefore, affirm the finding that appellant is a juvenile delinquent and the sentence imposed as a result of that finding.

Affirmed.

Griffen and Roaf, JJ., agree.