Bobby Yates, Sr. v. State of Arkansas

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ar04-030

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

CACR04-30

November 3, 2004

BOBBY YATES, SR. AN APPEAL FROM RANDOLPH

APPELLANT COUNTY CIRCUIT COURT

[CR03-64]

V. HON. HAROLD S. ERWIN, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Wendell L. Griffen, Judge

Bobby Yates Sr. appeals from his conviction for second-degree sexual assault. He argues that the trial court erred in denying his motion to suppress an involuntary confession. We affirm.

Yates was charged with fondling his stepdaughter on May 10, 2003. The incident was reported to Stan Rogers of the Arkansas State Police Crime Against Children Division. On May 15, 2003, Rogers took statements from the victim, her mother, her sister, and Yates. During Brown's interview with Yates, Yates signed a statement admitting that he had fondled his stepdaughter. He was immediately arrested. Before trial, Yates moved to have the confession suppressed.

At the hearing, Rogers testified that he started talking to Yates, and the two discovered that they knew each other from playing softball. After Rogers asked Yates if he would still be comfortable talking to him about the allegations and after Yates signed a Miranda form, the two talked about the allegations. Rogers testified that he wrote out what Yates had said. Rogers then asked Yates to sign the statement. Yates said that he could not read it since he did not have his glasses with him that night and wanted Rogers to read the statement to him. When cross-examined on why there was no audiotape of the interview, Rogers stated that he does not like to use them because he claimed that many people will not talk to him if he records. However, he did have an audiotape of the victim interview since it was required by the Arkansas State Police. On recross, Rogers stated that he told Yates that he would hate to have to arrest him, but he denied saying that he would not send Yates to jail if Yates was forthcoming.

Yates testified that he did not know what he was signing. He stated that Rogers told him to sign the bottom of the paper, and after signing it, Rogers told him that he was under arrest for sexual assault. After being told that he was under arrest, Yates denied any wrongdoing. In response to whether Rogers made any promises to him, Yates responded, "When we first went in there and everything, he said he couldn't promise me that he wasn't going to lock me up." He also testified that he was never told that he was under investigation for sexual assault. On cross-examination, Yates denied making the statement, "You lied to me, you told me that if I told you the truth about what I did to that little girl you wouldn't lock me up." The State then called Officer Dwight Brown, who testified that he did make the statement.

The trial court denied Yates's motion to suppress the confession. He was later convicted of second-degree sexual assault and sentenced to six years' imprisonment. This appeal followed.

Yates's only point on appeal is that the trial court erred in admitting his signed confession because his confession was involuntary. We disagree. The burden is on the State to prove by a preponderance of the evidence that a confession was given voluntarily and was knowingly and intelligently made. Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003). This court reviews a motion to suppress by making an independent determination based onthe totality of the circumstances. Id. To determine whether the confession was given voluntarily, this court "looks to see if the confession was the product of free and deliberate choice rather than intimidation, coercion, or deception." Id. at 311, 107 S.W.3d at 145-46. In determining whether a confession is coerced, this court looks at the: "age, education, and intelligence of the accused, lack of advice as to his constitutional rights, length of detention, the repeated and prolonged nature of questioning, or the physical use of punishment." Hood v. State, 329 Ark. 21, 30-31, 947 S.W.2d 328, 333 (1997). This court will only reverse if the ruling is clearly against the preponderance of the evidence. Grillot, supra. Any conflict in the testimony of different witnesses is for the trial court to resolve. Id.

Yates claims that his confession was involuntary because it was the result of a false promise. A confession resulting from a false promise intended to mislead the defendant is not considered to be voluntary. Pyles v. State, 329 Ark. 73, 947 S.W.2d 754 (quoting Davis v. State, 257 Ark. 388, 517 S.W.2d 515 (1974)). In an examination of the totality of the circumstances, this court first examines the statements of the officer, and if the statements are clearly false promises of leniency, there is no need to look further, as the defendant's statement is clearly involuntary. Conner v. State, 334 Ark. 457, 982 S.W.2d 655. If the statement is ambiguous enough for the court to determine if the statement was truly a false promise of leniency, the court must then proceed to examine the vulnerability of the defendant. Id. There may be misrepresentations by the officer as long as they are not made to produce an untrue statement or otherwise voluntary confession. Gardner v. State, 263 Ark. 739, 569 S.W.2d 74 (1978), cited in Pyles, supra. The line is difficult to draw:

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. In Wright v. State, 267 Ark. 264, 590 S.W.2d 15 (1979), we allowed a statement by an interrogating officer that, "things would go easier if you told the truth." However, in Tatum v. State, 266 Ark. 506, 585 S.W.2d 957 (1979), we determined that the statement "I'll help you any way that I can" was a false promise. On several occasions, we have held statements to be false promises: when the officer claimed he "would do all that he can," Hamm v. State, 296 Ark. 385, 757 S.W.2d 932 (1980), and when the officer said, "I'll help all that I can." Shelton v. State, 251 Ark. 890, 475 S.W.2d 528 (1972).

Pyles, 329 Ark. at 79, 947 S.W.2d at 756 (reversing the conviction when the officer claimed that he would "help him in every way in the world").

Yates argues that Rogers "created an unambiguous sense of a false promise of leniency to Mr. Yates which was the actual inducement for him to make whatever statement he actually made." However, Rogers only told Yates that he would hate to arrest him. Other than Yates's outburst after being arrested (that Yates denied making at the hearing but relies on as evidence in his brief), there is no evidence that Rogers promised Yates anything in exchange for his statement. Stating a desire not to arrest the defendant is not a false promise of leniency.

The only other evidence of an alleged false promise is Yates's statement after being arrested. Yates argues that this statement is evidence, yet at the hearing, he denied making such a statement. Assuming that he did make the statement, there is no evidence about what Yates meant. Finally, Yates testified that "[W]hen we first went in there and everything, he said he couldn't promise me that he wasn't going to lock me up." Yates's own testimony at the hearing supports the premise that no promise of leniency was made. After reviewing the testimony, we find that the trial court did not err in denying Yates's motion to suppress the confession.

Affirmed.

Neal and Roaf, JJ., agree.