David E. Gipson v. State of Arkansas

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ar04-507

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

DAVID E. GIPSON

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR04-507

May 11, 2005

APPEAL FROM CRAWFORD COUNTY CIRCUIT COURT

[NO. 2000-82A]

HONORABLE GARY COTTRELL, CIRCUIT JUDGE

AFFIRMED

Andree Layton Roaf, Judge

Appellant David Gipson entered a conditional plea of no contest to a charge of second-degree arson pursuant to Ark. R. Crim. P. 24.3(b) (2004). He received a five-year suspended sentence. On appeal, he argues that the trial court erred by denying his motion for a continuance of the suppression hearing and that the trial court erred by denying his motion to suppress his statement. We do not have jurisdiction to hear Gipson's first point on appeal and we affirm on his second point.

Appellant was suspected of being involved in setting his mobile home on fire to collect insurance proceeds. Parole officers arrested him on March 8, 2000. He was taken to the FBI office in Fort Smith, Arkansas, where he denied his involvement in the fire. On April 11, 2000, he wrote to the Crawford County Circuit Court and asked for an attorney to be appointed to represent him on the arson charge. He wrote again on April 14, 2000, with the same request.

According to the testimony of Detective Lockhart at the omnibus hearing, a jail matron contacted him on the evening of April 14, 2000, and told him that Gipson wished to make a statement. On April 18, 2000, Detective Lockhart and FBI Special Agent Gray went to the Sebastian County Detention Center where Gipson was being held. Gipson told them to come back in an hour, and he might speak with them. The officers did not return to the jail because they did not expect Gipson to give a statement. Later that day, the officers arrived at the Fort Smith Police Station and saw Gipson talking with another investigator from another county. Detective Lockhart and Agent Gray approached Gipson and asked him if he still wanted to give a statement. Gipson told the officers that he did wish to give a statement. Gipson signed a waiver of rights form and gave a statement.

On July 2, 2001, the trial court held an omnibus hearing on all pending motions, including Gipson's motion to suppress his statement. At that hearing, Gipson moved the trial court to dismiss his attorney and to allow him to represent himself. The trial court granted Gipson's motion and ordered his attorney to stand by to assist Gipson if he needed it. Gipson immediately requested a continuance because his attorney did not subpoena his witnesses, and the trial court denied this motion. The trial court also denied Gipson's motion to suppress his custodial statement.

On July 30, 2001, Gipson entered a conditional plea of no contest to arson, a Class C felony, retaining his right to appeal the trial court's decision on his motion to suppress. No notice of appeal was filed, and the Arkansas Supreme Court denied Gipson's motion to file a belated appeal and his motion for appointment of counsel. The United States District Court for the Western District of Arkansas then granted Gipson a writ of habeas corpus and ordered the Crawford County Circuit Court to resentence Gipson so that he could pursue his appeal. Gipson was resentenced on October 1, 2003, and he filed a timely notice of appeal. On appeal, he argues that the trial court erred by denying his motion for a continuance of the suppression hearing and that the trial court erred by denying his motion to suppress his custodial statement.1

Gipson argues that he did not have time to prepare for the suppression hearing because his motion to dismiss his attorney and represent himself was not granted until just before the hearing. Rule 24.3(b) specifically states that it applies only to adverse rulings on motions to suppress evidence illegally obtained and motions to suppress a custodial statement. Ark. R. Crim. P. 24.3(b) (2004); Fullerton v. State, 47 Ark. App. 141, 886 S.W.2d 887 (1994). Here, Gipson challenges the court's denial of his motion for a continuance of the suppression hearing. Gipson's argument is not a cognizable basis for an appeal under Rule 24.3(b). We do not have jurisdiction to address Gipson's first point challenging the trial court's denial of his motion for a continuance because his argument does not fall within the purview of Ark. R. Crim. P. 24.3(b).

For his second point on appeal, Gipson argues that the trial court erred when it denied his motion to suppress his statement made to the police on April 18, 2000, because he had requested an attorney on April 11, 2000, and April 14, 2000. An appellate court reviews a trial court's ruling on a motion to suppress by making an independent determination based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court. Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003). The trial court's ruling will be reversed only if it is clearly against the preponderance of the evidence. Woolbright v. State, 357 Ark. 63, ___ S.W.3d ___ (Apr. 22, 2004). A statement made while an accused is 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. Lacy v. State, 345 Ark. 63, 44 S.W.3d 296 (2001) (reversed on other grounds by Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003)).

Here, Gipson was charged with arson, a Class A felony, and with being an habitual offender. In his motion to suppress, Gipson asked the trial court to suppress statements made to officers on April 18, 2000, while he was incarcerated. He alleged that the statements were illegally obtained because (1) he had asked for, and had been refused, an attorney and (2) his statements were not voluntary because they were obtained by threats of violence and intimidation to coerce him to confess.

Police interrogation must cease when an accused requests an attorney, and the interrogation cannot continue until counsel has been made available. Lacy v. State, supra. If, however, the accused initiates further communication, exchanges, or conversations with the police, any resulting statement may be admissible. Id. Gipson had filed handwritten documents in which he requested an attorney on April 11, 2000, and April 14, 2000. The issue is whether Gipson initiated contact with the police prior to giving his statement on April 18, 2000.

Detective Lockhart testified that he investigated Gipson and his brother regarding the arson as well as some staged automobile accidents. Gipson was advised of his rights first on March 8, 2000, when he was arrested for a parole violation. This was the first time Detective Lockhart interviewed Gipson. Detective Lockhart and Agent Gray briefly made contact with Gipson on April 14, 2000, to inform him that additional charges had been filed against him. On Friday evening, April 14, 2000, Detective Lockhart was paged at home by the Sebastian County Jail matron, who informed him that Gipson and his brother wanted to talk with him about their charges. Detective Lockhart did not go to the jail at this time. He and Agent Gray went to the jail on Tuesday, April 18, 2000, at approximately 10:00 a.m., and they made contact with Gipson. The brothers stated that they might want to talk with the officers in about an hour, so Detective Lockhart and Agent Gray left the jail.

Detective Lockhart and Agent Gray returned to the police department around 2:30 p.m., and Gipson was there speaking with another investigator from another county. The two officers asked Gipson if he wanted to talk with them, and Gipson said that he would but that he would like to speak with his brother alone first. An officer went to the county jail, picked up Gipson's brother, and brought him to the police department. The two brothers spoke with each other alone for approximately twenty minutes. The brothers indicated that they wanted to speak with the officers, and they were interviewed separately after being read their Miranda rights. The Miranda rights form, the videotape of Gipson's interview, and a transcript of the statement regarding arson were admitted into evidence at the suppression hearing. Gipson told Detective Lockhart that he could read and write and that he had a GED. Detective Lockhart testified that he did not force, threaten, or coerce Gipson into giving him a statement and that he was not interested in obtaining a statement at this time because he had sufficient evidence against Gipson and did not feel like he needed the statement. Lockhart further testified that because he knew Gipson had been arrested several weeks prior to this interview, he made sure that Gipson initiated contact with him and wanted to talk.

Agent Gray's testimony corroborated Detective Lockhart's testimony. Agent Gray specifically recalled that he told Gipson, "it is my understanding you wanted to speak with us" and the brothers said, "come back in an hour, and we'll let you know." Both officers testified that Gipson never asked for an attorney in their presence.

According to the officers' testimony, Gipson asked to speak with him on April 14, 2000. The officers went to the jail on April 18, 2000, to talk with Gipson, and Gipson asked them to come back later and he would talk. The officers later ran into Gipson at the police station, and following up on Gipson's request, they asked Gipson if he still wanted to talk. Gipson said he would talk to them after he spoke with his brother. Gipson contends that, assuming Gipson initiated contact with the officers through the jail matron on April 14, contact ended on April 18 when Gipson asked for more time, and the officers left not expecting Gipson to give a statement. The officers, however, only approached Gipson for a statement after he had first initiated contact with the officers through the jail matron. Based on the totality of the circumstances, the State proved by a preponderance of the evidence that Gipson's statement was given after he initiated contact with the officers. The trial court did not err when it denied Gipson's motion to suppress his statement.

In his motion to suppress, Gipson argued that his confession was not voluntary because the State did not prove that he initiated contact with the police before making his statement. On appeal, Gipson does not make this argument and states that "whether or not the statement was voluntary is not an issue because voluntariness does not become an issue until it is proven that the accused initiated the contact." Gipson fails to continue the argument regarding the voluntariness of his confession on appeal; therefore, he has abandoned it. Jordan v. State, 356 Ark. 248, 147 S.W.3d 691 (2004).

Affirmed.

Neal and Crabtree, JJ., agree.

1 The State argues that this court does not have jurisdiction to hear this appeal because Gipson did not strictly comply with Ark. R. Crim. P. 24.3(b). We do not agree because Gipson signed a written plea agreement on July 30, 2001, the day he pled no contest, and it is clear from the transcript of the plea hearing that he entered a conditional plea with the approval of the trial judge and the consent of the prosecuting attorney. Ark. R. Crim. P. 24.3(b) (2004); see also Miller v. State, 81 Ark. App. 401, 102 S.W.3d 896 (2003).