Edward Thurman v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

EDWARD THURMAN

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 04-337

NOVEMBER 17, 2004

APPEAL FROM THE MISSISSIPPI

COUNTY CIRCUIT COURT,

CHICKASAWBA DISTRICT

[NO. CR-2003-106]

HONORABLE CHARLES DAVID

BURNETT, JUDGE

AFFIRMED

John B. Robbins, Judge

Appellant Edward Thurman was convicted by a jury of raping S.G., who was twelve years old at the time of the offense. Mr. Thurman was sentenced to fifteen years in prison, and now appeals. His sole argument for reversal is that the trial court erred in denying his motion to suppress the incriminating custodial statement he gave to Officer Charles Weinman. We affirm.

At the suppression hearing, Officer Weinman of the Blytheville Police Department testified for the State. He indicated that he began investigating the case on February 10, 2003, which was the date of the alleged rape and when Mr. Thurman was taken into custody. Officer Weinman stated that on that date Mr. Thurman told Officer Ross Thompson that he did not wish to make a statement. Mr. Thurman had some obvious injuries, appeared intoxicated, and suffered a seizure. He was transported to a local hospital in Blytheville, and then to a hospital in Memphis. Mr. Thurman remained in the Memphis hospital until March 4, 2003, when he was released and transported back to Blytheville, where he was again taken into police custody.

Officer Weinman testified that on March 4, 2003, he advised Mr. Thurman of his Miranda rights and then conducted an interview. According to Officer Weinman, Mr. Thurman indicated that he understood his rights and signed a waiver form. Officer Weinman summarized the interview as follows:

I used no coercion. I told him why I was there and he said he understood. Immediately off the bat, he said, "I didn't rape her." He admitted he was at the house and was watching the three children and had been drinking and smoking some marijuana. He said S.G. came to his mother's and his bedroom and sat down on the bed. He said he started talking to her. He said that she had asked him to teach her. He said he started kissing her and put his finger in her vagina and performed oral sex on her. That was not a taped statement. He did not want to make a taped or written statement.

Officer James Sanders testified that on March 5, 2003, he informed Mr. Thurman that he was being investigated for child maltreatment, and that Mr. Thurman voluntarily stated that he had had oral sex with S.G.

Mr. Thurman testified on his own behalf at the suppression hearing, and he denied making any incriminating statements. Mr. Thurman acknowledged that Officer Weinman advised him of his rights and that he understood those rights. Mr. Thurman stated, "Detective Weinman did not threaten me or trick me or tell me anything that was false."

At the conclusion of the suppression hearing, the trial court granted Mr. Thurman's motion to suppress his statement to Officer Sanders based on the circumstances surrounding the statement. However, Mr. Thurman's motion to suppress his statement to Officer Weinman was denied.

The victim, S.G., testified at trial that on February 10, 2003, she lived in a house with her mother, three brothers, and Mr. Thurman. She stated that Mr. Thurman was dating her mother and was supposed to be caring for the children while her mother was at work. According to S.G., she was in her mother's bedroom watching television with Mr. Thurman and her youngest brother. Mr. Thurman was drunk and started making S.G. uncomfortable by saying things about her "growing up and stuff," and saying, "It is the Thurman tradition that daddy makes the daughter a woman."

S.G. left the room, but Mr. Thurman called her back. Mr. Thurman told S.G. to remove her clothes, and she complied because she was afraid of him. Then, Mr. Thurman laid on top of her and kissed her mouth. S.G. stated that Mr. Thurman "put his finger between my legs in my private area" and "put his penis in my vagina." She stated that it hurt, that she pushed him away, and that she left the room.

S.G.'s oldest brother, D.B., testified that on the day of the incident he knocked on his mother's bedroom door and attempted to open the door, but it was locked. He stated that when S.G. came out of the room she "was throwing stuff and I asked her what was wrong." S.G. did not say anything to D.B., but Mr. Thurman "kept on saying that anything that happened between us was just going to stay between us," and D.B. did not know what he was talking about.

S.G.'s mother, E.G., testified that when she came home from work her youngest son told her that Mr. Thurman had been kissing S.G. on the mouth. E.G. ran to where Mr. Thurman was sleeping and proceeded to hit him with her fists and a lamp. According to E.G., Mr. Thurman told her that he "just pecked her on the jaw." E.G. stated that she called two male friends of hers, and that they thoroughly beat Mr. Thurman.

Officer Weinman testified at the trial about the incriminating statement made by Mr. Thurman. Mr. Thurman testified on his own behalf, and he denied committing any crime against S.G. or making an incriminating statement to Officer Weinman or Officer Sanders. The defense also put on evidence that a rape kit performed on S.G. did not produce a positive result. On rebuttal, the State elicited testimony from Officer Sanders that Mr. Thurman admitted to having oral sex with S.G.

Mr. Thurman now argues that the March 4, 2003, statement to Officer Weinman was erroneously admitted. He acknowledges that he was advised of and understood his rights before making the statement, but asserts that the statement was illegally taken because, when he was arrested on February 10, 2003, he told Officer Ross that he did not wish to make a statement. Officer Weinman was aware that Mr. Thurman had earlier refused to give a statement, and yet he proceeded with the interrogation.

In support of his argument, Mr. Thurman cites Michigan v. Mosley, 423 U.S. 96 (1975). In that case the Supreme Court held that the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his "right to cut off questioning" was "scrupulously honored." Id. at 104. Mr. Thurman argues that because Officer Weinman did not scrupulously honor his right to cut off questioning, the statement he gave to Officer Weinman should have been suppressed.

We need not consider Mr. Thurman's argument on appeal because he failed to raise it below. It is well settled that where an appellant does not advance an argument to the trial court as part of a motion to suppress, we will not consider it for the first time on appeal. Bunch v. State, 346 Ark. 33, 57 S.W.3d 124 (2001) (overruled on other grounds by Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003)); see also McFerrin v. State, 344 Ark. 671, 42 S.W.3d 529 (2001). At the suppression hearing, Mr. Thurman challenged the confession at issue on the grounds that it was involuntary, that he was not aware that he did not have to talk until he had counsel, and that he was not properly brought from Blytheville to Memphis. Because Mr. Thurman did not specifically argue that his statement was inadmissible because he had earlier invoked his right to remain silent, that argument is not preserved for review.

In his reply brief, Mr. Thurman argues that the issue is preserved because he generally argued that his statement was involuntary. He further asserts that his argument was developed at the suppression hearing because he asked Detective Weinman whether he was aware that Mr. Thurman had earlier refused to give a statement. Mr. Thurman cites Ilo v. State, 350 Ark. 138, 151, 85 S.W.3d 542, 550 (2002), where the supreme court held, "we will not reverse a trial court's suppression ruling based on an argument that was never raised below or otherwise developed during the hearing below." (Emphasis in appellant's brief.)

In our view, the general argument that the statement was involuntary was insufficient to preserve the point, and the fact that there was evidence at the suppression hearing of a prior refusal to talk did not put the trial court on notice of the argument now being raised. Mr. Thurman simply failed to give the trial court the opportunity to rule on the legal issue offered on appeal, and for this reason we need not address it. See Stipes v. State, 315 Ark. 719, 870 S.W.2d 388 (1994).

We note that even if the issue had been preserved for review, it has no merit. As long as there is not evidence of coercion, a statement made voluntarily will be admissible even though a defendant previously refused to answer questions. Bunch v. State, supra. Among the factors to be considered are whether the police engaged in repeated efforts to wear down the suspect's resistance and make him change his mind, the duration of time before questioning resumes, and the issuance of fresh Miranda warnings. See Michigan v. Mosley, 423 U.S. at 105, 106. In the instant case, twenty-two days had elapsed before Mr. Thurman was returned to the custody of the Blytheville police, and Mr. Thurman acknowledged that there were no threats, and that he was administered and understood his Miranda rights.

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 a custodial statement was given voluntarily and was knowingly and intelligently made. Grillot v. State, supra. In order to determine whether a waiver of Miranda rights is voluntary, we look to see if the confession was the product of free and deliberate choice rather than intimidation, coercion, or deception. Id. Under the circumstances of this case, the State met its burden of proving that Mr. Thurman's statement to Officer Weinman was given voluntarily.

Affirmed.

Bird and Roaf, JJ., agree.