Bradford v. State

Donnietha BRADFORD v. STATE of Arkansas

CR 96-5                                            ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered July 8, 1996


1.   Evidence -- motion for directed verdict -- challenge to
     sufficiency of evidence. -- A motion for a directed verdict is
     a challenge to the sufficiency of the evidence.

2.   Evidence -- review of sufficiency of evidence required prior
     to review of trial errors. -- Preservation of an appellant's
     right to freedom from double jeopardy requires a review of the
     sufficiency of the evidence prior to a review of trial errors;
     accordingly, the appellate court must address a challenge to
     the sufficiency of the evidence prior to considering an
     appellant's other assignments of trial error.

3.   Evidence -- review of sufficiency of -- substantial evidence
     defined. -- When reviewing the sufficiency of the evidence on
     appeal, the appellate court does not weigh the evidence but
     simply determines whether the evidence in support of the
     verdict is substantial; substantial evidence is that which is
     forceful enough to compel a conclusion one way or the other
     and pass beyond mere suspicion and conjecture; in determining
     whether there is substantial evidence, the appellate court
     reviews the evidence in the light most favorable to the State;
     it is permissible to consider only the evidence that supports
     the guilty verdict. 

4.   Evidence -- circumstantial evidence may constitute substantial
     evidence. -- Circumstantial evidence may constitute
     substantial evidence when every other reasonable hypothesis
     consistent with innocence is excluded; whether a reasonable
     hypothesis exists is for the trier of fact to resolve.

5.   Evidence -- State presented substantial evidence that
     appellant committed crimes. -- The supreme court held that the
     State presented substantial evidence for the jury to find that
     appellant committed the crimes with which she was charged
     where there was evidence that appellant discussed the planning
     of the crime with another person, that she loaned him a pistol
     to use, that she entered the victim's house with him, that she
     was present when the other person initially struck the victim
     on the head, that she searched the house for money, that she
     watched the victim while the other person left to get his car,
     and that the victim's head was bleeding when he left the
     house; there was also much blood on the premises evidenced by
     photographs that showed the severity of the beating.

6.   Jury -- did not have to believe that appellant acted only out
     of duress. -- The jury did not have to believe appellant's
     contention that she acted only out of duress; the jury could
     reasonably have believed that appellant voluntarily
     participated in the robbery attempt, that she voluntarily
     restrained the victim prior to his kidnapping by another
     person, and that her actions culminated in the victim's death.

7.   Criminal procedure -- custodial statements -- voluntariness of
     -- review. -- In reviewing a trial court's decision concerning
     the voluntariness of a custodial statement, the supreme court
     makes an independent determination based on the totality of
     the circumstances and does not reverse the trial court unless
     that court's ruling is clearly against the preponderance of
     the evidence. 

8.   Criminal procedure -- voluntariness of confession --
     conflicting testimony -- trial court's ruling not clearly
     erroneous. -- When conflicting testimony concerning the
     circumstances of a confession is offered, it is within the
     trial court's province to weigh the evidence and resolve the
     credibility of the witnesses; in the instant case, there was
     conflicting evidence on whether appellant had requested
     counsel prior to her statements; the trial court apparently
     did not find that she requested an attorney, and the supreme
     court concluded that this ruling was not clearly erroneous.

9.   Criminal procedure -- custodial statements -- appointment of
     counsel -- waiver of Miranda rights will not validate
     subsequent confession. -- Once the Sixth Amendment right to
     counsel attaches, and once the defendant requests counsel, an
     ordinary waiver of Miranda rights will not suffice to validate
     a subsequent confession; the same principle should apply to
     appointed counsel, which was the situation in the present
     case; police officers, under Michigan v. Jackson, 475 U.S. 625
     (1986), are deemed to be aware of counsel's appointment
     through imputed knowledge; once counsel was appointed by the
     court, knowledge of the appointment was imputed to police
     officers, and they were under an affirmative obligation to
     respect it; simple diligence requires that police officers
     take pains to learn whether counsel was appointed at a
     probable-cause hearing.

10.  Criminal procedure -- custodial statements -- waiver of
     Miranda rights could not equate to waiver of appointed
     counsel. -- Once the Sixth Amendment right to counsel
     attached, and once counsel had been retained, even if there
     has been no formal request at the probable-cause hearing, a
     defendant enjoys the right to rely on counsel as a medium
     between himself and the State; once counsel has been
     appointed, any waiver in connection with police-initiated
     interrogation is invalid; in the instant case, the Sixth
     Amendment right to counsel had clearly attached, and counsel
     had been appointed; although appellant never formally
     requested counsel, the court's appointment provided a medium
     between herself and investigating officers; appellant's mere
     waiver of Miranda rights could not equate to a waiver of
     appointed counsel, a fact of which she was unaware.

11.  Criminal procedure -- custodial statements -- appellate court
     decision overruled. -- Where the Arkansas Court of Appeals
     held, in Lanes v. State, 54 Ark. App. 266, ___ S.W.2d ___
     (1996), that, to invalidate a later confession, there must be
     an affirmative invocation of the right to counsel, the supreme
     court declared that case to be in direct conflict with the
     present decision and, accordingly, overruled Lanes on that
     point.

12.  Criminal procedure -- reversal dictated by A.R.Cr.P. Rule 8. -
     - The supreme court noted that Rule 8 of the Arkansas Rules of
     Criminal Procedure dictated a reversal in this case; A.R.Cr.P.
     Rule 8.2 provides that the trial court shall appoint counsel
     to represent an indigent defendant at the first appearance, if
     the right is not knowingly and intelligently waived; an
     appointment of counsel was made here; A.R.Cr.P. Rule 8.3
     provides that, upon the first appearance of the defendant
     before the judicial officer and after the defendant is advised
     of his rights no further steps in the proceedings other than
     pretrial release inquiry may be taken until the defendant and
     his counsel have had an adequate opportunity to confer, unless
     the defendant has intelligently waived his right to counsel or
     has refused assistance of counsel; under the rule, an attorney
     for an indigent defendant should be appointed at the probable-
     cause hearing, or the State must show that the right to have
     counsel appointed at the hearing was specifically waived.

          instructions -- where evidence to
               support instruction is before jury
               that instruction must be given. --
               Where any evidence to support an
               instruction is before the jury, that
               instruction must be given.


     Appeal from Mississippi Circuit Court; Samuel Turner, Judge;
reversed and remanded.
     Mikke Connealy, for appellant.
     Winston Bryant, Att'y Gen., by:  David R. Raupp, Asst. Att'y
Gen., for appellee.

     Robert L. Brown, Justice.stice.Associate Justice Robert L. Brown
July 8, 1996   *ADVREP*SC6*






DONNIETHA BRADFORD,
                    APPELLANT,

V.

STATE OF ARKANSAS,
                     APPELLEE,

CR 96-5




APPEAL FROM THE MISSISSIPPI
COUNTY CIRCUIT COURT,
NO. CR 94-373,
HON. SAMUEL TURNER, JUDGE,




REVERSED AND REMANDED.






     Appellant Donnietha Bradford contests her convictions for
capital murder, kidnapping, and aggravated robbery and her sentence
of life imprisonment without parole.  She argues insufficiency of
the evidence, breach of her Fifth and Sixth Amendment rights as
they pertain to her statements to police, and failure of the trial
court to give certain instructions to the jury relating to
termination of her accomplice status.  Because we conclude that her
Sixth Amendment rights were violated in connection with her third
statement to police officers, we reverse the convictions and remand
for a new trial.
     On June 1, 1994, Blytheville police officers were called to
the house of Lester Frazier.  When they arrived at the house, they
found that it had been ransacked, that there was considerable blood
on the premises, and that Frazier, a 79-year-old man, was missing. 
Three days later, Frazier's body was discovered in the Mississippi
River south of Osceola.  According to the medical examiner,
Frazier's death was due to a fractured skull caused by a blunt
force.  Defensive wounds were found on Frazier's right hand.
     On Friday, July 22, 1994, Donnietha Bradford was arrested in
connection with Frazier's murder.  She was instructed of her
Miranda rights, and she executed a waiver of rights form at 6:20
p.m. that same Friday.  A recorded statement was taken more than
four hours later.  In that statement, she related that she had a
conversation with Rodney Barnett on May 24, 1994, at an Arby's
restaurant in Blytheville.  She stated that Barnett asked her if
she planned to rob Frazier.  She informed him that if she had
intended to rob Frazier, she would have done so.  Barnett replied,
"I'll get him."  Barnett told her that he knew Frazier's family and
that the family had money.  
     A week later, Barnett told her that he had killed the old man,
but gotten no money.  She stated that Barnett told her that he cut
the screen on Frazier's door and that when Frazier opened the door,
he knocked him down.  He proceeded to hit Frazier over the head and
ask where his money was.  Barnett ransacked the house looking for
the money, but he could not find it.  At that point, he walked
across the street to his father's house and got his car.  He forced
Frazier into the car and drove him to the river.  Once they arrived
at the river, Barnett took a rock and repeatedly hit Frazier over
the head with it.  According to her statement, about a month later,
she visited with Barnett at Coleman's Combo in Blytheville. 
Barnett inquired if Bradford had said anything to anybody about the
murder.  When she answered "no," he said he wanted to keep it that
way.  He patted his waistband, indicating that he had a gun.
     Approximately an hour and a half after the first interview,
the police officers renewed their questioning of Bradford. 
Bradford gave a second statement in which she added that she had
borrowed a pistol from an acquaintance, Frankie Milton, the night
before Frazier was murdered.  The pistol was inoperable because the
cylinder was "broken off."  She stated that she borrowed the
pistol because she had been threatened by another man.  She stated
that the next day she talked with Barnett, and she let him borrow
the gun.  Barnett told her that he had been watching Frazier's
house because he was going to rob him.  He asked Bradford if she
was going to go with him, and she answered that she did not know. 
Thirty minutes later, they walked to Frazier's house.  She saw
Barnett approach the front door and begin to cut the screen so that
he could unlatch the door.  At that point, Bradford left, she
stated, because she did not want to rob the man.  Later, she
returned to Frazier's house to see what Barnett was doing.  She
stated that she saw the screen door wide open and the front door
cracked open.  A few minutes later, the door slammed and Barnett
began turning the lights off in the house.  She walked back down
the street and returned to Frazier's house in her car.  She saw
Barnett put Frazier into the front seat of his car, which he had
backed into the driveway.  Barnett then drove away with Frazier.  
     The next day, she saw Barnett, and he told her that he had
killed Frazier.  He then gave her a detailed account of the murder
which tracked the description that Bradford gave in her earlier
statement to the police officers.  She added that he told her that
he had left the gun he had borrowed from her at the river, but that
he would retrieve it.  Bradford denied helping transport Frazier to
the river.  She also denied leaving the gun at the river, acting as
a lookout for Barnett, and entering Frazier's house.
     On Monday, July 25, 1994, a hearing to determine whether there
was probable cause to detain Bradford was held before the
Blytheville Municipal Court.  Following the hearing, an affidavit
for probable cause was issued, bond was set, and the public
defender's office was appointed to represent her.  Appointment of
counsel was noted by the court on the affidavit for probable cause. 
Shortly after her appearance, another waiver of Miranda rights was
executed by Bradford, and police officers renewed their questioning
of her.  At about 6:45 p.m., Bradford gave a more detailed account
of the events of May 31, 1994.  Her statement was similar to the
previous statements, except that in this statement she added that
Barnett forced her at knifepoint to search Frazier's house for
money.  He further pretended to threaten her with the disabled gun
in order to scare Frazier.  Barnett stated that he was going to
take Frazier to the bank to get some money.  When Barnett left to
get his car, he ordered Bradford to watch Frazier, and she did so. 
She saw Barnett hit Frazier on the head, and she saw that his head
was bloody.  She left the house after Barnett drove away with
Frazier in the car.
     Bradford was eventually charged with the capital murder,
aggravated robbery, and kidnapping of Frazier.  Prior to trial,
Bradford moved to suppress her three statements to police officers. 
At the Denno hearing conducted during the course of the trial, the
trial court denied her motion and allowed all three statements to
be introduced into evidence.  Following a jury trial, the jury
returned a verdict of guilty on all three counts, and Bradford was
sentenced to life in prison without parole.

                    I. Insufficient Evidence
     We first address Bradford's claim that there was insufficient
evidence to support the verdict.  A motion for a directed verdict
is a challenge to the sufficiency of the evidence.  Passley v.
State, 323 Ark. 301, 915 S.W.2d 248 (1996); Williams v. State, 321
Ark. 635, 906 S.W.2d 677 (1995).  Preservation of an appellant's
right to freedom from double jeopardy requires a review of the
sufficiency of the evidence prior to a review of trial errors. 
Passley v. State, supra; Davis v. State, 319 Ark. 460, 892 S.W.2d 472 (1995).  Accordingly, this court must address a challenge to
the sufficiency of the evidence prior to considering an appellant's
other assignments of trial error.  Passley v. State, supra; Byrum
v. State, 318 Ark. 87, 884 S.W.2d 248 (1994).
     When reviewing the sufficiency of the evidence on appeal, this
court does not weigh the evidence but simply determines whether the
evidence in support of the verdict is substantial.  Passley v.
State, supra.  Substantial evidence is that which is forceful
enough to compel a conclusion one way or the other and pass beyond
mere suspicion and conjecture.  Id.  In determining whether there
is substantial evidence, we review the evidence in the light most
favorable to the state, and it is permissible to consider only that
evidence which supports the guilty verdict.  Id.  Further,
circumstantial evidence may constitute substantial evidence when
every other reasonable hypothesis consistent with innocence is
excluded.  Id.  Whether a reasonable hypothesis exists is for the
trier of fact to resolve.  Id.
     At trial, Bradford made the following arguments for her motion
for a directed verdict: On the capital murder charge, she argued
that the State failed to prove that she acted alone or with others
in causing the death of Frazier in the furtherance of a robbery. 
As to the aggravated robbery charge, she argued that there was no
evidence that she threatened or employed force or that she was
armed with a deadly weapon.  With respect to the kidnapping charge,
she contended there was no evidence to support the claim that she
restrained the victim in any way.  
     The State urges that Bradford has changed her argument on
appeal in that she now argues she was forced to participate in the
robbery and that she never agreed to participate in the crimes. 
The State adds that this argument is, in reality, not an argument
regarding the sufficiency of the evidence to support the conviction
but is, rather, an argument that her participation was the result
of duress, which requires an acquittal.  We disagree with the
State.  Bradford maintains that the only evidence presented to
prove her complicity is her third statement to police officers that
she was forced to participate in the crimes and that that evidence
is not valid evidence to show that she was an accomplice to the
crimes.  Accordingly, her argument continues to be that the State's
evidence was inadequate to sustain the convictions.
     The keystone of the State's case against Bradford was her
third statement to police officers.  Putting aside for the moment
the legitimacy and propriety of that third statement, we hold that
the State presented substantial evidence for the jury to find that
she committed the crimes.  Discounting her duress defense, there
was evidence that she discussed the planning of the crime with
Barnett, that she loaned him a pistol to use, that she entered
Frazier's house with Barnett, that she was present when Barnett
initially struck Frazier on the head, that she searched the house
for money, that she watched Frazier while Barnett left to get his
car, and that Frazier's head was bleeding when he left the house. 
There was also much blood on the premises evidenced by photographs
which showed the severity of the beating.
     The jury did not have to believe Bradford's contention that
she acted only out of duress.  The jury could reasonably have
believed that she voluntarily participated in the robbery attempt,
that she voluntarily restrained the victim prior to his kidnapping
by Barnett, and that her actions culminated in Frazier's death. 
Indeed, the jury could well have concluded that the fatal head
injury occurred at Frazier's house.  Cause of death was a fractured
skull, and Frazier's head was bleeding when Barnett placed him in
the car.

                  II. SUPPRESSION OF STATEMENTS
     Bradford next argues that the trial court erred in denying her
motion to suppress the three statements she gave to Blytheville
police officers.  She initially asserts that she requested an
attorney prior to giving her first statement to the police officers
but was denied counsel in violation of her Fifth Amendment rights. 
The investigating officers testified at the Denno hearing, however,
that Bradford never requested an attorney.  They stated, to the
contrary, that she completed the waiver of rights form and that,
from all appearances, she understood her rights.
     In reviewing a trial court's decision concerning the
voluntariness of a custodial statement, this court makes an
independent determination based on the totality of the
circumstances and does not reverse the trial court unless that
court's ruling is clearly against the preponderance of the
evidence.  Moore v. State, 321 Ark. 249, 903 S.W.2d 154 (1995). 
When conflicting testimony concerning the circumstances of a
confession is offered, it is within the trial court's province to
weigh the evidence and resolve the credibility of the witnesses. 
Id.  In the instant case, there was conflicting evidence on whether
Bradford requested counsel prior to her statements.  The trial
court apparently did not find that she requested an attorney.  We
conclude that this ruling was not clearly erroneous.
     Bradford's second suppression argument is that her third
inculpatory statement taken after her probable cause hearing and
appointment of counsel should have been suppressed as a result of
a violation of her Sixth Amendment right to counsel.  She points to
the fact that she was arrested on Friday, July 22, 1994 and
appeared before the Blytheville Municipal Court on the following
Monday, July 25, 1994.  At that appearance, the court determined
that there was probable cause to support the charges against her. 
The court fixed bond and appointed the public defender's office to
represent her.  This action was memorialized in the court's
affidavit of probable cause which was executed that same date. 
Bradford admitted at the Denno hearing that she was unaware that
the court had appointed counsel for her.  The investigating police
officers also denied knowledge that Bradford had been appointed
counsel.  The trial court found, following the Denno hearing, that
counsel had indeed been appointed for her prior to her third
statement but that she had waived the right to counsel before
giving that last statement.
     The issue before us is whether the municipal court's
appointment of counsel at the probable cause hearing curtailed
subsequent police interrogation though neither police officers nor
Bradford were aware of the appointment and though Bradford waived
her Miranda rights before the third interrogation.  The United
States Supreme Court addressed the Sixth Amendment right to counsel
in Michigan v. Jackson, 475 U.S. 625 (1986).  That case involved
two consolidated cases.  One defendant, Bladel, was arraigned on a
murder charge and asked at his arraignment that an attorney be
appointed for him because of his indigency.  The Court appointed
counsel and mailed a notice of the appointment to the law firm. 
Bladel was not told that counsel had been appointed.  Before the
notice was received, police officers interviewed Bladel and, after
advising him of his Miranda rights, obtained a confession. 
Jackson, the other defendant, also asked that counsel be appointed
for him during his arraignment on murder charges.  The next day,
before he had an opportunity to consult with counsel, police
officers interviewed him and, again, after advising him of his
rights under Miranda, obtained a confession.  In both cases, the
investigating officers were present at the arraignment.
     The Michigan trial courts denied the defendants' motions to
suppress, but the Michigan Supreme Court reversed.  The United
States Supreme Court affirmed that reversal.  In its decision, the
Court framed the pivotal issue by first stating that the Sixth
Amendment provides the right to counsel at postarraignment
interrogations which is a critical stage of the proceedings and
signals the initiation of adversary judicial proceedings.  The
question then was whether the defendants effectively waived that
right by executing a Miranda waiver after arraignment.  In the
course of its opinion, the Court stated:
          Indeed, after a formal accusation has been made --
     and a person who had previously been just a "suspect" has
     become an "accused" within the meaning of the Sixth
     Amendment -- the constitutional right to the assistance
     of counsel is of such importance that the police may no
     longer employ techniques for eliciting information from
     an uncounseled defendant that might have been entirely
     proper at an earlier stage of their investigation.
                              ....
          The State points to another factual difference:  the
     police may not know of the defendant's request for an
     attorney at the arraignment.  That claimed distinction is
     similarly unavailing.  In the cases at bar, in which the
     officers in charge of the investigations of respondents
     were present at the arraignments, the argument is
     particularly unconvincing.  More generally, however,
     Sixth Amendment principles require that we impute the
     State's knowledge from one state actor to another.  For
     the Sixth Amendment concerns the confrontation between
     the State and the individual.  One set of state actors
     (the police) may not claim ignorance of defendants'
     unequivocal request for counsel to another state actor
     (the court).
475 U.S.  at 632, 634.  The Court went on to hold that "[i]f police
initiate interrogation after a defendant's assertion, at an
arraignment or similar proceeding, of his right to counsel, any
waiver of the defendant's right to counsel for that police-
initiated interrogation is invalid."  475 U.S.  at 636.
     What distinguishes this case from Michigan v. Jackson, supra,
is that in this case, Bradford did not request counsel at her
probable cause hearing, but nevertheless the public defender was
appointed to represent her without her knowledge.  Thus, must a
defendant affirmatively invoke her Sixth Amendment right to counsel
in order to be afforded the protections provided by Michigan v.
Jackson, supra?  In footnote 6 of Michigan v. Jackson, supra, the
Court stated:
          In construing respondents' request for counsel, we
     do not, of course, suggest that the right to counsel
     turns on such a request.  See Brewer v. Williams, 430 U.S.  at 404 ("[T]he right to counsel does not depend upon
     a request by the defendant"); Carnley v. Cochran, 369 U.S. 506, 513 (1962)("[I]t is settled that where the
     assistance of counsel is a constitutional requisite, the
     right to be furnished counsel does not depend on a
     request").  Rather, we construe the defendant's request
     for counsel as an extremely important fact in considering
     the validity of a subsequent waiver in response to
     police-initiated interrogation.
465 U.S.  at 633.
     We read Michigan v. Jackson to stand for the proposition that
once the Sixth Amendment right to counsel attaches and once the
defendant requests counsel, an ordinary waiver of Miranda rights
will not suffice to validate a subsequent confession.  The same
principle should apply to appointed counsel, which is the situation
that we have before us.  The fact that Bradford was unaware that
she was appointed counsel is irrelevant.  We note in this regard
that defendant Bladel in Michigan v. Jackson, supra, was similarly
unaware.  Moreover, police officers under Michigan v. Jackson,
supra, are deemed to be aware of counsel's appointment through
imputed knowledge.  Once counsel was appointed by the court,
knowledge of the appointment was imputed to police officers, and
they were under an affirmative obligation to respect it.  Just as
a police officer who wishes to initiate an interrogation during the
custody stage must determine if a request for counsel has been made
(Arizona v. Roberson, 486 U.S. 675 (1985)), simple diligence
requires that police officers take pains to learn whether counsel
was appointed at a probable cause hearing.
     The State relies on Patterson v. Illinois, 487 U.S. 285
(1988), to support its theory that Bradford waived her right to
counsel by executing the Miranda waiver prior to the third
statement.  It is true that in Patterson, the defendant was
interrogated postindictment and signed a waiver-of-counsel form. 
But defendant had not requested counsel; nor had one been appointed
for him.  Thus, the Supreme Court held that the defendant's waiver
in Patterson was knowing and intelligent under Johnson v. Zerbst,
304 U.S. 458 (1938).  The critical fact, though, that did not exist
in Patterson but exists in the instant case is that counsel had
already been appointed for Bradford, and under Michigan v. Jackson,
supra, knowledge of that fact was imputed to the police officers. 
The failure of police officers to learn about the appointment and
obtain a statement from Bradford that she did not want appointed
counsel present at the interrogation is what requires suppression
in this case.
     Case law in this state also militates in favor of suppression. 
In Bussard v. State, 295 Ark. 72, 747 S.W.2d 71 (1988), we held
that once the Sixth Amendment right to counsel attached and once
counsel had been retained, even if there had been no formal request
at the probable cause hearing as in Michigan v. Jackson, a
defendant enjoyed the right to rely on counsel as a medium between
himself and the state.  See Maine v. Moulton, 474 U.S. 159 (1985). 
More significantly, in Sutherland v. State, 299 Ark. 86, 771 S.W.2d 264 (1989) (per curiam), we held that once counsel had been
appointed, any waiver in connection with police-initiated
interrogation was invalid under Michigan v. Jackson, supra, and
Arizona v. Roberson, supra.  In the instant case, the Sixth
Amendment right to counsel had clearly attached, and counsel had
been appointed.  Though Bradford never formally requested counsel,
the court's appointment provided a medium between herself and
investigating officers.  Her mere waiver of Miranda rights could
not equate to a waiver of appointed counsel, a fact of which she
was unaware.
     The State concedes that Sutherland v. State, supra, dictates
an outcome in favor of Bradford on this issue but urges this court
to overrule Sutherland on the basis that Sutherland does not
accurately reflect the opinions of the United States Supreme Court. 
We decline to do so.  Sutherland v. State seems to fit squarely
within the Supreme Court decisions on the issue of when the Sixth
Amendment right to counsel attaches and the validity of subsequent
Miranda waivers.  Michigan v. Jackson, supra, holds that the Sixth
Amendment right to counsel attaches when counsel is requested and
a subsequent waiver of Miranda rights is of no consequence.  We
perceive no valid reason for not applying the same principle to
situations where counsel has already been appointed.  Patterson v.
Illinois, supra, is distinguishable on its facts because in that
case no counsel had been appointed by the court.
     It should be noted that the Arkansas Court of Appeals has
recently held that the mere appointment of counsel is not enough. 
Rather, there must be an affirmative invocation of the right to
counsel in order to invalidate a later confession.  See Lanes v.
State, 53 Ark. App. 266, ___ S.W.2d ___ (1996).  That decision is
in direct conflict with our decision today.  Accordingly, we
overrule Lanes v. State on that point.
     We further note that Rule 8 of the Arkansas Rules of Criminal
Procedure dictates a reversal in this case.  Rule 8.2 provides that
the trial court shall appoint counsel to represent an indigent
defendant at the first appearance, if the right is not knowingly
and intelligently waived.  An appointment of counsel was made here. 
Rule 8.3 provides that upon the first appearance of the defendant
before the judicial officer, and after the defendant is advised of
his rights:
     No further steps in the proceedings other than pretrial
     release inquiry may be taken until the defendant and his
     counsel have had an adequate opportunity to confer,
     unless the defendant has intelligently waived his right
     to counsel or has refused assistance of counsel.  
Thus, under our rule, an attorney for an indigent defendant should
be appointed at the probable cause hearing, or the State must show
that right to have counsel appointed at the hearing was
specifically waived.  See Sutton v. State, 262 Ark. 492, 559 S.W.2d 16 (1977).
     There is a third issue raised by Bradford in this case. 
Nevertheless, because it is somewhat speculative as to whether the
issue of alleged trial court error in not giving a certain
instruction -- AMCI2d 601 -- will reoccur on retrial, we will not
address the point.  Suffice it to say, that where any evidence to
support an instruction is before the jury, that instruction must be
given.  State v. Jones, 321 Ark. 451, 903 S.W.2d 170 (1995).
     Reversed and remanded.
     Dudley, J., not participating.