Edward Dewayne Cooney v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

EDWARD DEWAYNE COONEY

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR03-635

February 25, 2004

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SEVENTH DIVISION

[NO. CR02-3618]

HON. BARRY A. SIMS,

JUDGE

AFFIRMED

John Mauzy Pittman, Judge

The appellant in this criminal case was parked on a dead-end street known for drug trafficking and prostitution. A police officer approached the vehicle and asked appellant and his passenger to show their hands, and ordered them out of the car when they did not immediately comply. Appellant was handcuffed. No Miranda warnings were given. The officer had had prior dealings with the passenger, and he asked her what they were doing out there and what he might find in the car. Appellant, the driver of the car, was asked no questions, but nevertheless volunteered that the officer might find some cocaine. Appellant's statement to the officer was admitted at trial and, on appeal, he argues that it was erroneously admitted because he was in custody at the time and had not been Mirandized. We affirm.

In reviewing a trial judge's ruling on a motion to suppress, we make an independent determination based upon the totality of the circumstances, and we reverse only if the ruling is clearly against the preponderance of the evidence. Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003). The credibility of witnesses who testify at a suppression hearing about the circumstances surrounding a defendant's custodial statement is for the trial judge to determine, and we defer to the trial judge's superior position in determining matters of witness credibility. Fairchild v. State, 349 Ark. 147, 76 S.W.3d 884 (2002).

A statement made while an accused is in custody is presumptively involuntary; the burden is on the State to prove, by a preponderance of the evidence, that a custodial statement was given voluntarily and was knowingly and intelligently made. Arnett v. State, 353 Ark. 165, 122 S.W.3d 484 (2003). However, a suspect's spontaneous statement is admissible against him, and it is irrelevant whether the statement was made before or after Miranda warnings had been issued, and whether the defendant was in custody at that point. Fairchild v. State, supra. A spontaneous statement is admissible because it is not compelled or the result of coercion under the Fifth Amendment's privilege against self-incrimination. Id. In determining whether a defendant's in-custodial statement was spontaneous, the focus is on whether it was made in the context of a police interrogation, i.e., direct or indirect questioning put to the defendant by the police with the purpose of eliciting a statement from the defendant. Stone v. State, 321 Ark. 46, 900 S.W.2d 515 (1995). Under Miranda, the term "interrogation" refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. Weber v. State, 326 Ark. 564, 933 S.W.2d 370 (1996) (quoting Rhode Island v. Innis, 446 U.S. 291, 301 (1980)).

From our review of the totality of the circumstances in this case, we cannot say that appellant was subjected to this sort of interrogation. It is undisputed that no questions were addressed to him. Although it is true that questions were addressed to appellant's passenger, we are not persuaded by appellant's argument that this questioning of the passenger was reasonably likely to lead to an incriminating response from appellant in the form of some sort of exculpatory statement. If that were the case, a defendant would effectively be subject to Miranda interrogation every time a co-defendant was questioned. That this is not the law is demonstrated in Scherrer v. State, 294 Ark. 287, 742 S.W.2d 884 (1988), where the defendant asked a police officer what a co-defendant had said, was told by the police officer, and spontaneously made a statement himself. The Arkansas Supreme Court said that:

There is no indication in the instant case that [Officer] Moore intended to elicit a statement from appellant when he spoke with him. The officer was asked by the appellant to come to his cell. Appellant brought up the subject of the charges and asked what [co-defendant] Harrison had said. The officer simply did not question the prisoner. The trial court properly allowed the statement into evidence.

Id. at 291, 742 S.W.2d at 886.

Affirmed.

Gladwin and Baker, JJ., agree.