Corey Johnson v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

COREY JOHNSON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR04-258

February 2, 2005

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CR-02-3250]

HON. BARRY SIMS

CIRCUIT JUDGE

AFFIRMED

Josephine Linker Hart, Judge

Corey Johnson was convicted in a Pulaski County jury trial of aggravated robbery for which he received two consecutive 240 month sentences in the Arkansas Department of Correction. On appeal, he argues that the trial court erred in denying his motion to suppress a statement taken without Miranda warnings while he was lying on the ground surrounded by police officers who had drawn their weapons. We affirm.

Johnson only challenges the trial court's refusal to suppress his statement to the effect that he had robbed a liquor store. Because Johnson does not challenge the sufficiency of the evidence, we will only recount the testimony from the suppression hearing that relates to this issue.

Little Rock Police Officer Carrie Mauldin testified that on August 2, 2002, she was at the old VA hospital on Roosevelt Road, which was "fairly close" to the Spot Liquor Store. Her shift had ended, and she was walking to her vehicle to go home when she heard two or three gunshots. She looked around and heard four to six more gunshots. Officer Mauldin advised units in the area that there was gunfire at her location. She then ran over to the intersection of 24th and Scott Street along with several other officers. When Officer Mauldin arrived, she observed a black male on the ground "yelling that he had been shot." She recalled that Officer Phelps, asked the black male "what happened because we didn't know and we were trying to get him an ambulance, get him help, didn't know what happened." However, the subject responded that "he robbed a liquor store and the clerk shot him." Officer Mauldin opined that the subject was not in custody. She also stated that she did not have any indication, other than hearing the gunshots, that there had been a crime in the area. On cross-examination, she made it clear that she did not receive radio reports about a robbery of the Spot Liquor Store until after the subject had made his incriminating statement. She reiterated that Johnson was not in custody; however, she admitted that Johnson had been ordered by police to drop his weapon and get on the ground.

Lee Ann Phelps, also a Little Rock Police Department patrol officer, testified that on August 2, 2002, she and fellow officers had just concluded their shift and were leaving their headquarters, which was located at 24th and Scott Streets, two or three blocks from the Spot Liquor Store. As she headed toward her private vehicle, she heard two gunshots. She and the other officers began to walk toward the front gate when they heard four or five more gunshots. The officers then ran toward Scott Street. A black man, identified in the courtroom as Johnson, carrying a gun came walking toward them. When "two or three officers" ordered him to get on the ground, Johnson complied. According to Officer Phelps, as Johnson was getting on the ground, he said "I've been shot." She asked "what happened," and he replied, "I robbed the store and the clerk shot me." Officer Phelps asserted that, at the time she asked the question, Johnson was not in custody, and the purpose of asking the question was to "ascertain what was going on." After he made the statement, she placed handcuffs on him, and the only other question she asked him was his name. According to Officer Phillips, she had "no idea" that the Spot Liquor Store had been robbed at the time that Johnson made his incriminating statement. However, throughout the incident, all of the officers present had their guns drawn.

Johnson testified that, after he was ordered to the ground by police, they asked him how he "had got shot." He claimed that he told them that the "police shot me, but I never said nothing about I tried to rob the liquor store. I mean the clerk shot me. But I never told them that I tried to rob the liquor store." Upon further probing by his trial counsel, he confirmed that he told the police that the liquor store clerk shot him. Johnson confirmed that, at the time he gave his statement, he had been ordered to the ground, disarmed by police, and was surrounded by police officers with drawn weapons. He also stated that he did not "feel" like he was "free to leave."

On appeal, Johnson argues that the trial court erred in denying his motion to suppress the un-Mirandized statement that he made while he was lying on the ground surrounded by police officers with their weapons drawn. Citing Fairchild v. State, 349 Ark. 147, 76 S.W.3d 884 (2002)(overruled on other grounds), he asserts that four officers standing over him with drawn weapons constituted a "restraint on freedom of movement to a degree associated with formal arrest." Johnson argues that a statement made while an accused is in custody is presumptively involuntary, Arnett v. State, 353 Ark. 165, 122 S.W.3d 484(2003), and because he was not Mirandized, the trial court erred in ruling that the statement was admissible.

In reviewing a ruling denying a defendant's motion to suppress, this court makes an independent determination based on the totality of the circumstances. Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003). We reverse only if the trial court's ruling is clearly against the preponderance of the evidence. Id.

We note first that we agree with Johnson that when three or more police officers with drawn weapons ordered him to the ground, disarmed him and surrounded him, it constituted "restraint on freedom of movement to a degree associated with formal arrest." Nonetheless, despite the fact that he was in custody, we hold that the failure to Mirandize Johnson does not render his statement inadmissible.

Notwithstanding a suspect's entitlement to Miranda warnings, a spontaneous statement is admissible because the statement is neither compelled nor the result of coercion and thus does not offend his Fifth Amendment privilege against self-incrimination. Stone v. State, 321 Ark. 46, 900 S.W.2d 515 (1995). In Scherrer v. State, 294 Ark. 287, 742 S.W.2d 884 (1988), the supreme court stated that determining if a defendant's custodial statement was spontaneous requires analysis of whether the statement was made in the context of police interrogation. The Scherrer court defined police interrogation as "simply direct or indirect questioning put to the incustodial defendant by the police with the purpose of eliciting a statement from the defendant." Id. (Emphasis in original).

Under the totality of the circumstances, we conclude that when the police asked Johnson, "What happened?" they were not acting with the purpose of eliciting a statement from him. It is uncontroverted that the police were not even aware that the Spot Liquor Store had been robbed at the time that Johnson made his statement. In this regard, we believe that the instant case is analogous to Arnett v. State, supra.

In Arnett, police were summoned to the Arnetts' residence because his wife believed that he was going to harm himself. Arnett was placed in handcuffs "for both of their safety" and the deputy then asked him, "What's up?" Arnett responded that he had sexually abused his daughter and that he needed help. Significantly, at the time of the Arnett's statement, allegations of incest had already been made against Arnett, however, the deputy was unaware of those allegations when he spoke with Arnett. Under those circumstances, the supreme court held that the confession was spontaneous.

In the case at bar, it was undisputed that the police were not aware of any specific crime having been committed at the time Johnson was asked "What happened?" It is our belief under the totality of the circumstances that the police were not attempting to elicit a statement from Johnson concerning the liquor store robbery or any other crime. Because Johnson's confession was spontaneous, we hold that the trial court did not err in refusing to suppress that statement.

Affirmed.

Bird, J., agrees;

Roaf, J., concurs.

Andree Layton Roaf, Judge , concurring. I agree that Corey Johnson's conviction should be affirmed, and concur in this result. I also agree that Johnson was in custody when questioned by Officer Phelps. However, I would not affirm this case on the basis that Johnson's response to the officer was merely a spontaneous utterance. In the first case relied upon by the majority, Scherrer v. State, 294 Ark. 287, 742 S.W.2d 884 (1988), the appellant had initiated the discussion, and the officer merely responded to the appellant's question. Further, in the case primarily relied upon and cited as analogous by the majority, Arnett v. State, 353 Ark. 165, 122 S.W.3d 484 (2003), the supreme court characterized the officer's remark to the appellant, "[W]hat's up?" as a general term of salutation much like the simple greeting uttered by an officer which elicited an incriminating statement in Weber v. State, 326 Ark 564, 933 S.W.2d 370 (1996). I would not characterize Johnson's response to a direct question as a voluntary or spontaneous statement under the circumstances in this case, where officers were clearly responding to a shooting of some kind, and had both surrounded and disarmed Johnson when the officer's inquiry was directed to him. The question was by no means a greeting, even though officers were unaware of the role Johnson may have played in the shooting.

Moreover, there is a better basis on which this case can be affirmed, one that is more clearly supported by case precedent. There is a "public safety" exception to the requirement that police give Miranda warnings before a court may admit a suspect's answers into evidence. New York v. Quarles, 467 U.S. 649, 656 (1984). "[T]he need for answers in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment's privilege against self incrimination." Marshall v. State, 68 Ark. App. 223, 227, 5 S.W.3d 496, 498 (1999) (citing Quarles, 467 U.S. at 649). In Quarles, the United States Supreme Court stated:

We decline to place officers . . . in the untenable position of having to consider often in a matter of seconds, whether it best serves society for them to ask the necessary questions without the Miranda warnings and render whatever probative evidence they uncover inadmissible, or for them to give the warnings in order to preserve the admissibility of evidence they might uncover but possibly damage or destroy their ability to obtain that evidence and neutralize the volatile situation confronting them.

Quarles, 467 U.S. at 657-58.

In Quarles, a woman approached two police officers, told them she had just been raped, described the suspect, and stated the suspect had just entered a supermarket carrying a gun. An officer saw Quarles, who matched the woman's description of the suspect, running in the supermarket. The officer stopped Quarles, searched him, and found out that he was wearing an empty shoulder holster. The officer handcuffed Quarles and then asked him where the gun was. Quarles responded that the gun was "over there." The officer recovered the weapon, placed Quarles under arrest, and informed him of his Miranda rights. Id. at 651-53. The Quarles court held that the officer did not violate Miranda, because a public safety issue existed as to the immediacy of detecting the whereabouts of the missing gun. Id. at 658-59.

In Marshall v. State, this court held that the public safety exception was applicable in a missing gun situation similar to the Quarles situation. 68 Ark. App. at 223, 5 S.W.3d at 496. In Marshall, two men robbed the victim at gunpoint. The victim immediately told two officers what happened, and the officers pursued the suspects. The suspects discarded the weapon during the chase. The officers caught the suspects and asked for the location of the gun prior to mirandizing the suspects. Id. at 224-25, 5 S.W.3d at 498. This court held that public safety considerations outweighed the officer's failure to provide Miranda warnings before asking about the location of the weapon. Id. at 229, 5 S.W.3d at 498.

Here, the officers heard several gunshots and began to run toward the sound. The officers found Johnson on the ground holding a gun and yelling that he had been shot in the face. The officers ordered Johnson to stay on the ground, and Johnson surrendered his weapon at one point. The record is unclear as to whether Johnson voluntarily surrendered his gun or whether an officer kicked the gun out of Johnson's hand while he was on the ground. Two officers testified that they did not know what was going on at the time and did not know that someone had just robbed a nearby liquor store. Officer Phelps testified that the purpose of her asking Johnson what happened was to ascertain what was going on. This was clearly a situation where officers could have reasonably believed that a public safety issue existed. The officers heard gunshots and shortly thereafter encountered a man with a gun yelling that he had been shot. The officers did not know who the shooter was or exactly what had happened.

Johnson argues that his case is distinguishable from Quarles and Marshall because there was no missing gun in Johnson's situation. There is, however, a common thread in Johnson's case, Quarles, and Marshall - the officers's concern for their own safety as well as the public's safety. Johnson's gun was not missing, but the police had reason to believe that another gunman existed in the area or perhaps more victims. The officers needed to know what had happened so that they could quickly and properly respond to the situation and eliminate any immediate threats to themselves and the public. Johnson's statement, therefore, would be admissible into evidence under the "public safety" exception to the Miranda rule, and I would affirm on this basis.