Steven Joseph Holcomb v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

STEVEN JOSEPH HOLCOMB

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR05-139

December 14, 2005

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FIFTH DIVISION [NO. CR-03-1088]

HON. WILLARD PROCTOR, JR.

JUDGE

AFFIRMED

John Mauzy Pittman, Chief Judge

The appellant in this criminal case was charged with theft of property of value greater than $2500. Prior to trial, he moved to suppress incriminating statements he made while confined in the Lonoke City Jail. The trial court denied the motion. After his incriminating statements were introduced into evidence at a subsequent jury trial, appellant was convicted of theft of property, sentenced to thirty-six years' imprisonment, and ordered to pay restitution in the amount of $160,000. On appeal, he argues that the trial court erred in failing to suppress his incriminating statements and ordering him to pay restitution. We find no error, and we affirm.

Where the denial of a motion to suppress is challenged on appeal, we make an independent review based on the totality of the circumstances, but we defer to the trial court's superior position to determine the issue of the credibility of the witnesses who testify to the circumstances of a defendant's custodial statement, and we will not reverse the trial court's

findings of historical fact unless they are found to be clearly erroneous. Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003); Britt v. State, 83 Ark. App. 117, 118 S.W.3d 140 (2003).

At trial, the State offered testimony concerning statements made by appellant to the victim, Doug White, and to Russell Ursery, the officer in charge of the Lonoke City Jail. Our review of the record discloses that Doug White discovered that his office safe was missing. The safe contained checks payable to White's business and $163,000 in cash. White reported the theft to police but also conducted his own investigation, learning from his secretary that her boyfriend, the appellant, had recently remarked that it would be easy to pick up the safe and run to Mexico with it. A week after discovering that the safe was missing, White located the safe and the checks under appellant's house. The cash was still missing, and White continued his attempts to locate appellant. As a result of these efforts, appellant's former parole officer contacted White a few months after the theft. The parole officer told White that appellant had been apprehended in Mexico, was being held in San Diego, and would be extradited to Little Rock the next day. The parole officer did not tell White what facility appellant would be sent to, but White learned from appellant's aunt that appellant had already been taken to Lonoke.

The next day, Doug White went to the Lonoke City Jail, where appellant was being held as a parole violator. White presented himself to Officer Ursery as a friend of appellant and asked to visit him. Officer Ursery was not told the actual reason for the visit and did not know that appellant's visitor was in fact the victim of a crime or even that the theft had occurred. Although it was outside regular visiting hours and the visiting room telephone was not operating properly, Officer Ursery permitted the visit to take place in a hallway, where some chairs were located near a Coke machine. Officer Ursery remained present for security considerations.

The visit lasted approximately ten minutes. White was very pleasant and friendly to appellant at first, but after five minutes the discussion became increasingly tense. White told appellant that he had come to find out where his money was. After appellant denied any knowledge of the missing money, White kept demanding to be told where the money was and told appellant that "people had died" for less than he had done. Appellant then told White that he could not tell him where the money was but that he could take him to it. Officer Ursery assumed that they were arguing about money and, within moments of hearing the implied threat, terminated the visit and ordered White to leave. While escorting appellant back to his cell, Officer Ursery explained to appellant that the visit had been terminated because it appeared to have been an unpleasant one. Appellant replied that he had "ripped that bitch off for a large sum of money and he couldn't handle it," and that if Officer Ursery let White back in to see him appellant would "sue his ass." The next day, while Officer Ursery was escorting appellant back to his cell after a closed-door meeting between appellant and Detective Giegan of the Little Rock Police Department, appellant volunteered the remark that "he didn't know how Mr. White was going to report $163,000 missing when he never had reported it to the IRS." Appellant's statement to White that he could take him to the missing money, and his two statements to Officer Ursery, were the subjects of appellant's motion to suppress.

The sole concern of the Fifth Amendment, upon which Miranda was based, is governmental coercion. Colorado v. Connelly, 479 U.S. 157 (1986). Coercive police activity is a necessary predicate to finding that a confession is not voluntary within the meaning of the due process clause, and even the most outrageous behavior by a private party seeking to secure evidence against a defendant does not make that evidence inadmissible. Furthermore, a suspect's spontaneous statement, although made in police custody, isadmissible against him 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). If the statement is in fact spontaneous, it is irrelevant whether the statement was made before or after Miranda warnings had been issued, or whether appellant was in custody. Id. Our focus on review is 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. See Rhode Island v. Innis, 446 U.S. 291 (1980). Because the police cannot be held accountable for unforeseeable results of their words or actions, the definition of "interrogation" for Miranda purposes extends only to words or actions on the part of officers that the officers should have known were reasonably likely to elicit an incriminating response. Id.

Although appellant's statement that he could lead White to the missing money may have been coerced by White's implied threat that "people had died" for less, it was not inadmissible because White was a private party whose action cannot reasonably be attributed to the police. Officer Ursery had no reason to expect an incriminating response as a result of his permitting White to visit appellant, because he did not know the actual purpose of White's visit, his relationship to appellant, or even that a theft had occurred. Nor did the trial court err in refusing to suppress appellant's subsequent statements to Officer Ursery. Our independent review of the record discloses nothing in Officer Ursery's action or manner that was reasonably likely to elicit an incriminating response from appellant, and we hold that the trial court did not err in allowing them to be admitted into evidence.

Appellant also argues that the trial court erred in ordering him to pay restitution where restitution was not part of the sentence returned by the jury. However, this sentencing argument is not preserved for appeal because appellant did not object below. We have heldthat, because an order to pay restitution is not illegal on its face, it must be raised below to be argued on appeal. See Cotnam v. State, 36 Ark. App. 109, 819 S.W.2d 291 (1991). Here, the argument is raised for the first time on appeal.

Affirmed.

Hart and Gladwin, JJ., agree.