Steven Earl Jordan v. State of Arkansas

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ar04-866

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

STEVEN EARL JORDAN

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR04-866

May 11, 2005

APPEAL FROM THE GRANT COUNTY CIRCUIT COURT

[NO. CR-03-79-1]

HON. CHRIS E WILLIAMS,

JUDGE

AFFIRMED

Robert J. Gladwin, Judge

A Grant County jury found Steven Earl Jordan guilty of residential burglary and theft of property, and he was sentenced as a habitual offender to fifty years' imprisonment. Appellant raises two points on appeal: (1) the trial court erred in denying his motion to suppress the victim's pretrial identification of him because it was unnecessarily suggestive and violated the Due Process Clause; and (2) the trial court erred in denying his motion to suppress his inculpatory statements because he was in custody and had not been read his Miranda rights. We affirm.

At the suppression hearing, Detective Robert Byrd with the Grant County Sheriff's Office testified that he responded to a call on September 24, 2003, at approximately 2:15 p.m., that a burglary was in progress. Detective Byrd made contact with the victim, Kelly Charleville, at approximately 2:30 p.m. Charleville told him that she saw a black man exiting her home carrying her jewelry box and that he was heavyset with short hair. She also told him that the man got into an older-model, dark-colored Cadillac and that she saw a second

black man, who was tall and slim, running from the rear of her house. According to Detective Byrd's testimony, Charleville said that the first man turned the Cadillac around in her yard and drove toward the area where she was parked. She got out of her car and tried to block his exit, but the man drove past her. She was close enough to see that the car had tan leather interior, and she watched as it drove in a westerly direction. Charleville stated that the license plate read "562 HWN." A description of the suspect and vehicle was broadcast to other agencies, and a Saline County deputy stopped a vehicle matching the description. According to Detective Byrd, he transported Charleville to the location of that vehicle, which was approximately five miles from the scene of the crime, around 3:00 p.m. Detective Byrd stated that the vehicle that was stopped was an early 90s-model, dark purple, almost black Cadillac with tan interior bearing a license plate that read "562 HMW." Detective Byrd testified that appellant was standing outside of the vehicle and may have been handcuffed when they arrived. Detective Byrd said that Charleville identified appellant while she was still seated in the patrol unit. He stated that he asked her whether she recognized anyone and that she responded, "Yes, that's him." Detective Byrd further testified that he saw several pieces of jewelry on the passenger's seat of the stopped vehicle, and Charleville identified them as belonging to her. Detective Byrd testified that he read appellant his Miranda rights from a card and that after he read them, he asked appellant whether he understood his rights, and appellant indicated that he did. Detective Byrd stated that he began asking appellant about the second man and that appellant said, "You've got me, man. There ain't nobody else. I was all alone. I'm an old ex-con. I know better than to tell you anything."

Deputy David Roberts with the Grant County Sheriff's Office testified that he was present when Detective Byrd read to appellant his Miranda rights. Deputy Roberts stated that he then escorted appellant to a patrol unit and that, while he was unlocking the back passenger's door, appellant was standing so that he faced toward Detective Byrd's patrol unit where the victim was seated and twice said, "I'm sorry."

Appellant testified that an officer stopped him and stated that the reason for stopping him was in relation to a bank robbery in Grant County. Appellant told the officer, "That's not me." Appellant stated that the officer put handcuffs on him and put him in the backseat of the patrol unit. He stated that he had complained about the handcuffs being too tight and that the officers were in the process of loosening them and changing them when Detective Byrd arrived at the scene. According to appellant, Detective Byrd approached and immediately asked him about another person's involvement. He testified that he did not recall making any statement to Detective Byrd. Appellant stated that Detective Byrd got him out of the car and told him to face toward the victim and that Detective Byrd subsequently read him his rights. Appellant did not recall saying "I'm sorry" to the victim.

The trial court found that both the out-of-court identification and appellant's statements were admissible at trial. The trial judge remarked that the jury would be allowed to weigh the evidence and pointed out that admitting the evidence would not prevent appellant's counsel from cross- examining the witnesses. The trial court specifically found that "[t]he identification that was conducted at the scene was done in close proximity to the time period that the actual arrest took effect and was an immediate action on the part of the police."

Appellant argues that the trial court erred in denying his motion to suppress the victim's identification of him and his inculpatory statements. In reviewing the denial of a motion to suppress evidence, we conduct a de novo review 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. Simmons v. State, 83 Ark. App. 87, 118 S.W.3d 136 (2003).

First, appellant maintains that the victim's identification of him was suggestive, considering that approximately forty-five minutes had passed between the initial encounter and the identification and that the victim identified the only black man who was being removed from a patrol unit in handcuffs. A pretrial identification violates the Due Process Clause when there are suggestive elements in the identification procedure that make it all but inevitable that the victim will identify one person as the culprit. Wooten v. State, 325 Ark. 510, 931 S.W.2d 408 (1996). Even when the process is impermissibly suggestive, the trial court may determine that under the totality of the circumstances the identification was sufficiently reliable for the matter to be submitted to the jury, and then it is for the jury to decide the weight the identification testimony should be given. Id. In determining reliability, the following factors are considered: (1) the prior opportunity of the witness to observe the alleged act; (2) the accuracy of the prior description of the accused; (3) any identification of another person prior to the pretrial identification procedure; (4) the level of certainty demonstrated at the confrontation; (5) the failure of the witness to identify the defendant on a prior occasion; and (6) the lapse of time between the alleged act and the pretrial identification procedure. Id. We do not reverse a trial court's ruling on the admissibility of identification evidence unless it is clearly erroneous, and we do not inject ourselves into the process of determining reliability unless there is a very substantial likelihood of irreparable misidentification. Hutcherson v. State, 74 Ark. App. 72, 47 S.W.3d 267 (2001).

Charleville saw appellant when he exited her house carrying her jewelry box and saw him as he drove past her. Charleville's description of appellant was fairly general in that she described a heavyset black male with short hair, but Charleville's description of appellant's car was specific and accurate, for the most part. She never identified anyone else prior to the pretrial-identification procedure. At the confrontation, Charleville stated unequivocally that appellant was the person carrying her jewelry box. Finally, at the time of the confrontation, less than an hour had passed since Charleville had seen appellant at her house with her jewelry box. Considering the totality of these circumstances, we cannot say that the trial court was clearly erroneous in finding Charleville's identification of appellant to be sufficiently reliable and submitting the matter to the jury.

Second, appellant argues that he was clearly in custody and entitled to receive his Miranda rights considering that his vehicle was stopped, that he was handcuffed, and that he was detained inside patrol units for approximately twenty minutes. Appellant points to his own testimony that Detective Byrd came up to him and immediately asked about another person's involvement, told him to face the victim for identification, asked him again about what happened, to which he replied, "Man, I have no idea," and only then did Detective Byrd read appellant his Miranda rights before slamming the car's door.

We have held that 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. Whitaker v. State, 348 Ark. 90, 71 S.W.3d 567 (2002). Appellant uttered two statements that he contends should have been suppressed. According to Detective Byrd, he read appellant his Miranda rights before any statement was taken. Further, Detective Byrd asked appellant whether he understood each of his rights, and appellant indicated that he did by nodding his head. It was then that appellant made the statement, "You've got me, man...." Although appellant disputed the order of the events, any conflict in the testimony was for the trial court to resolve. See Winston v. State, 355 Ark. 11, 131 S.W.3d 333 (2003). Appellant's other statement was his apology to the victim who had come to identify him. At the time appellant stated, "I'm sorry," Deputy Roberts was otherwise engaged in unlocking the door to his patrol car, and appellant was facing the victim. It is well settled that a suspect's spontaneous statement, although made in police custody, is admissible against him or her. Fairchild v. State, 349 Ark. 147, 76 S.W.3d 884 (2002). We have held that a spontaneous statement is admissible because it is not compelled or the result of coercion under the Fifth Amendment's privilege against self-incrimination. Arnett v. State, 353 Ark. 165, 122 S.W.3d 484 (2003). On review, we focus on whether the statement was made in the context of a police interrogation, meaning direct or indirect questioning put to appellant by the police with the purpose of eliciting a statement from him or her. Id. Clearly, appellant was not responding to any questioning by the officers when he apologized to the victim. We cannot say that the trial court's determination that appellant's statements were voluntary was clearly against a preponderance of the evidence. Accordingly, we affirm the trial court's denial of appellant's motion to suppress.

Affirmed.

Pittman, C.J., and Bird, J., agree.