Isbell v. State

Brandon Anthony ISBELL v. STATE of Arkansas

CR 96-517                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
              Opinion delivered September 23, 1996


1.   Criminal law -- admission of pretrial statement -- trial
     court's overruling of motion to suppress not error. --
     Appellant's contention that the trial court erred in
     overruling his motion to suppress his pretrial statement in
     that he was not given the benefit of the requirement that his
     parent enter an agreement to the execution of the waiver of
     the right to counsel was without merit where there was no
     showing or argument that appellant, when taken into custody,
     asked to consult with his parent; Ark. Code Ann.  9-27-317
     (g) clearly placed the burden on appellant to consult with his
     parent. 

2.   Criminal law -- waiver of rights in custodial statements of
     juveniles -- statement must be voluntarily and intelligently
     given. -- When a person in police custody makes a statement
     after executing a waiver of rights, the law makes
     admissibility in evidence of the statement dependent upon a
     showing that the waiver was made voluntarily and
     intelligently; this requirement applies regardless whether the
     person said to have executed the waiver is entitled to the
     protection of the juvenile code; in deciding whether it is
     convinced, according to the totality of the circumstances,
     that a confession was voluntarily and intelligently given, the
     appellate court considers whether the special rights accorded
     to a juvenile by statute were observed by the authorities
     taking the statement.  

3.   Criminal law -- appellant repeated all material aspects of
     pretrial statement at trial -- failure to suppress earlier
     confession harmless. -- Even if the appellant's pretrial
     confession should have been suppressed, the error was harmless
     beyond a reasonable doubt in view of the fact that appellant
     testified at his trial and essentially repeated his earlier
     confession, clearly admitting having committed every element
     of capital-felony murder; apparently the decision to testify
     and give a "judicial confession" was solely that of appellant.

4.   Evidence -- trial court properly admitted evidence of gunshot
     residue -- any error in admitting testimony was harmless. --
     The trial court properly admitted testimony of the crime lab
     expert that gunshot residue was found on both of appellant's
     hands where, after appellant's objection to the testimony
     because the test had been administered without the use of
     control swabs, the trial court concluded the objection would
     go to the weight to be given to the expert's testimony rather
     than its admissibility; where appellant admitted having shot
     the victim, any error in admitting the gunshot residue
     testimony would have been harmless.     

5.   Appeal & error -- no specific objection made at trial --
     appellate court will not reverse. -- Where, at trial, the
     trial court was not informed as to the nature of the
     objection, the appellate court would not reverse; absent a
     specific objection informing the trial court of the nature of
     the error alleged on appeal, the appellate court will not
     reverse.  

6.   Witnesses -- rebuttal witnesses -- State need not provide
     defense with names of rebuttal witnesses. -- The rules of
     criminal procedure do not require the State to provide the
     defense with the names of rebuttal witnesses because until the
     defense case has been presented, the State can not know of
     witnesses needed for rebuttal.

7.   Criminal procedure -- oral statements made by defendant
     disclosed to defense -- rebuttal evidence may overlap State's
     case-in-chief -- no abuse of discretion found. -- Appellant
     argued that the State did not tell the defense about the oral
     statement of appellant to the rebuttal witness as it was
     required to do; however, pursuant to Ark. R. Crim. P. 19.2
     there was disclosure, albeit later than the defense would have
     liked, and the trial court was thus permitted to consider
     whether it was proper rebuttal or not; even though the
     evidence might properly have been presented in its case-in-
     chief, that did not mean the evidence was not proper for
     rebuttal; rebuttal evidence may overlap the State's case-in-
     chief so long as it is responsive to the defense evidence; it
     is within the trial court's discretion to decide the propriety
     of evidence offered in rebuttal; there was no abuse of
     discretion here.


8.   Evidence -- effect of judicial confessions -- judicial
     confessions do not universally cure trial error. -- Although
     it is true that evidence rules can be "relaxed" when a
     defendant had confessed in open court, allegedly improper
     evidence may well be of no consequence to the appellant and
     not prejudicial when the evidence has to do solely with the
     elements of the crime and whether they were committed; in a
     case, however, where the evidence alleged to have been
     received in error may have further consequences, such as
     influencing the jury with respect to the sentence to be
     received, prejudice may occur; a judicial confession does not 
     universally cure trial error. 


     Appeal from Arkansas Circuit Court; Russell Rogers, Judge;
affirmed.
     Dennis R. Molock, Public Defender, for appellant.
     Winston Bryant, Att'y Gen., by:  Gil Dudley, Asst. Att'y Gen.,
for appellee.

     David Newbern, Justice.
     Brandon Anthony Isbell shot and killed Lois Wallace in the
course of a robbery of a grocery store in Stuttgart.  He was
convicted in a jury trial of capital murder for causing the death
of Ms. Wallace in furtherance of the robbery and under
circumstances manifesting extreme indifference to the value of
human life.  Ark. Code Ann.  5-10-101(a)(1) (Supp. 1995).  Mr.
Isbell was sentenced to life imprisonment without parole.  We
affirm the judgment.
     The murder occurred October 28, 1994, when Brandon Isbell was
aged 14 years.  The sufficiency of the evidence is not at issue, so
we need not recite the facts in great detail.  In a pretrial
statement given to the police and again in his testimony at the
trial, Mr. Isbell said he and two friends, Clint Lammers and Sean
Smith, planned to rob the store to get money to run away from home. 
Clint Lammers had a .357 pistol.  On the day of the crime they
acquired a second weapon by taking a .22 pistol from the home of
Mr. Isbell's grandmother.  They walked to the grocery store and
spoke of using the .22 which was the quieter of the two weapons to
shoot the grocery check-out clerk so she could not identify them. 
     Mr. Isbell had fired the .22 pistol previously and knew that
the double action did not work, so the hammer would have to be
cocked to fire it.  The three first purchased some batteries and
then continued to mill about the grocery store.  Mr. Isbell then
approached Ms. Wallace, the store clerk, and  pointed the .22
pistol at her head.  The gun discharged, and Ms. Wallace went down. 
Mr. Isbell stood up on the counter, attempting unsuccessfully to
get the cash register open.  They ran from the store, taking only
the batteries, some cigarettes, and a pair of gloves.  They went to
Clint Lammers' home from which they phoned the police to turn
themselves in.  In relating the story to the police, Mr. Isbell
said, "It didn't turn out like it does in the movies."

             1. Admissibility of pretrial statement
     In his first point of appeal, Mr. Isbell contends the Trial
Court erred in overruling his motion to suppress his pre-trial
statement.  When he was taken into custody, Mr. Isbell was
questioned by a police officer after executing a waiver form
indicating his knowledge and understanding of his rights and
declining the assistance of counsel.  Although his mother was
present in the police station and had expressed her wish to speak
with Mr. Isbell, she was not allowed to do so until the
interrogation had been completed.  
     The officer who interrogated Mr. Isbell confirmed that he had
told Mr. Isbell of his rights, including the right to an attorney,
but the officer admitted at the suppression hearing that he did not
give any extra explanation as he did not wish Mr. Isbell to have an
attorney or parent present because that would have hindered the
effort to obtain a confession.
     Citing Ark. Code Ann.  9-27-317, Mr. Isbell argues as
follows: 

     a waiver of the right to counsel shall be accepted only upon
     a finding by the court from clear and convincing evidence,
     after questioning the juvenile, that (1) the juvenile
     understands the full implications of the right to counsel; (2)
     the juvenile freely and voluntarily and intelligently wishes
     to waive the right to counsel; and (3) the parent ... for the
     juvenile has agreed with the juvenile's decision to waive the
     right to counsel.

     The argument made in Mr. Isbell's brief to this Court is not
that the State has failed to show that the waiver was involuntary
or not intelligently made; rather, it is that Mr. Isbell was not
given the benefit of the requirement that his parent enter an
agreement to the execution of the waiver of the right to counsel. 
     Previously,  9-27-317(f) provided that, "All waivers of the
right to counsel shall be in writing and signed by the juvenile and
his parent, guardian, or custodian."  The General Assembly removed
the requirement that the parent sign by Acts 67,  1, and 68,  1,
of the Second Extraordinary Session of 1994 which became effective
August 26, 1994, some two months before Mr. Isbell's offense
occurred.  By amending the opening subsection of  9-27-317, those
same acts made it clear that its provisions, at least subsections
(a) through (f), apply in "a delinquency or family in need of
services hearing."  Subsection (g)(2)(A) of the statute provides:

     No law enforcement officer shall question a juvenile who has
     been taken into custody for a delinquent act or criminal
     offense if the juvenile has indicated in any manner that he: 
          
          (i) Does not wish to be questioned;
          (ii) Wishes to speak with a parent or guardian or to    
          have a parent or guardian present; or
          (iii) Wishes to consult counsel before submitting to
          any questioning.
     
     If the provisions of subsection (g) apply beyond the juvenile
forum, they were not invoked here.  There is no showing or argument
that Mr. Isbell, when taken into custody, asked to consult with his
parent.  Mr. Isbell's argument on appeal includes a remark to the
effect that the burden should not have been placed on a 14-year-old
to ask to consult with his parent, but that is precisely where
subsection (g) places it.
     Our Rule 4-3(h) requires that we examine the transcript in a
case in which there has been a sentence to death, life
imprisonment, or life imprisonment without parole to determine any
errors prejudicial to the appellant.  Mr. Isbell's motion to
suppress his confession was not limited to the failure to give him
the protection of the Juvenile Code.  Rather, it was couched in
general terms as well, stating the confession was involuntary and
not intelligently given.
     When a person in police custody makes a statement after
executing a waiver of rights, the law makes admissibility in
evidence of the statement dependent upon a showing that the waiver
was made voluntarily and intelligently.  Clay v. State, 318 Ark.
122, 883 S.W.2d 822 (1994); Piercefield v. State, 316 Ark. 128, 871 S.W.2d 348 (1994).  That requirement obtains regardless whether the
person said to have executed the waiver is entitled to the
protection of the Juvenile Code.  In deciding whether we are
convinced, according to the totality of the circumstances, that a
confession was voluntarily and intelligently given, we consider
whether the special rights accorded to a juvenile by statute were
observed by the authorities taking the statement.  Rouw v. State,
265 Ark. 797, 581 S.W.2d 313 (1979).
     Our conclusion on this point is that even if the confession
should have been suppressed, the error was harmless beyond a
reasonable doubt in view of the fact that Mr. Isbell testified at
his trial and repeated every material aspect of his pretrial
statement.  
     In Fulminante v. Arizona, 499 U.S. 279 (1991), the Supreme
Court considered a case in which two pretrial confessions had been
given.  The first was found to have been coerced and thus not
admissible.  The issue was whether the error could be considered
harmless and the conviction affirmed in view of the second
confession.  Although the reversal of the conviction by the Arizona
Supreme Court was ultimately affirmed, the majority of the members
of the Supreme Court applied a harmless error analysis to the
issue, holding that the error was not harmless.
     In his trial testimony, essentially repeating his earlier
confession, Mr. Isbell clearly admitted having committed every
element of capital-felony murder.  Unlike the facts in the
Fulminante case (which need not be recited), there were no factors
tending to make Mr. Isbell's second statement unreliable.  No
argument is made pursuant to Michigan v. Long, 463 U.S. 1062
(1983), that this Court should consider independent and adequate
state grounds for holding that the error, if any, in admitting the
first confession should be considered harmful per se.  See  Note,
Arizona v. Fulminante: Should Arkansas Courts Apply Harmless Error
Analysis to Coerced Confessions, 45 Ark. L. Rev. 995 (1983).
     Certainly there was no argument presented to the Trial Court
suggesting that Mr. Isbell was forced to testify because his
earlier statement was admitted, nor is that argued here.  We assume
his testimony was given to emphasize his contention that he did not
consciously pull the trigger and that the officer who testified
about his pretrial statement was not being truthful when he pointed
out that Mr. Isbell did not seem to be upset.  Apparently the
decision to testify and give a "judicial confession" was solely
that of Mr. Isbell and his counsel.
   
                  2. Gunshot residue testimony
     The State presented the testimony of Gary Lawrence, of the
Trace Evidence Section of the Arkansas State Crime Laboratory.  Mr.
Lawrence testified as an expert that a gunshot residue kit
containing a swab used to test Mr. Isbell showed gunshot residue on
both Mr. Isbell's hands.  Counsel objected to the testimony because
the test had been administered without the use of control swabs,
and Mr. Lawrence's report stated it was incomplete and thus its
result severely jeopardized.
     After hearing the arguments of counsel, the Trial Court
correctly admitted the evidence, having concluded the objection
would go to weight to be given to Mr. Lawrence's testimony rather
than its admissibility.  Suggs v. State, 322 Ark. 40, 907 S.W.2d 124 (1995); Redman v. St. Louis S.W. Ry. Co., 316 Ark. 636, 873 S.W.2d 542 (1994).  In view of our ruling on Mr. Isbell's
statement, including his admission of having shot the victim, any
error in admitting the gunshot residue testimony would have been
harmless.   

            3. Failure to provide witness statement 
     Jevon Butler, a friend of Mr. Isbell, testified about two
conversations between them.  The first conversation occurred prior
to the commission of the crime.  Information about that
conversation was provided to the defense in the form of Mr.
Butler's written statement given to the police on the day the crime
occurred.  Mr. Butler said Mr. Isbell and Mr. Lammers discussed
with him their plan to commit crimes and run away.  On the witness
stand, he spoke of what "they," referring to Isbell and Lammers,
told him.  Counsel for Mr. Isbell objected, contending that any
statement as to what Mr. Lammers had said was hearsay because Mr.
Lammers was not present and testifying at the trial and thus
subject to cross-examination.  In response, the Prosecutor refined
the questions to assure that the testimony related only statements
made by Mr. Isbell.  In effect, the objection was sustained.  
     Mr. Butler also testified about a conversation during a
telephone call made to him by Mr. Isbell from jail.  He said Mr.
Isbell told him in that conversation that he had kicked Ms. Wallace
in the head as her head lay on the counter after the shooting.  The
argument on appeal is that the State violated its obligation,
provided in Ark. R. Crim. P. 19.7, to inform the defense about Mr.
Butler's oral statement.  
     When the testimony was presented, counsel for the defense
merely said "objection."  The Prosecutor responded that he did not
know of any basis for the objection other than that the defense did
not want to hear the evidence.  The Court said "overruled," and
counsel did not mention a ground of objection or any authority for
it.  The Trial Court was thus not informed as to the nature of the
objection.  Absent a specific objection informing the Trial Court
of the nature of the error alleged on appeal, we do not reverse. 
Reams v. State, 322 Ark. 336, 909 S.W.2d 324 (1995); Childress v.
State, 322 Ark. 127, 907 S.W.2d 718 (1995).

                  4. Surprise rebuttal witness 
     After Mr. Isbell testified and the defense rested its case,
the Prosecutor announced he wanted to present two witnesses of
whose testimony he had learned the previous evening at the jail. 
Both were to testify about statements Mr. Isbell had made while in
jail.  The first witness was a police officer, and the Trial Court
disallowed his testimony on the ground that the knowledge of the
officer was imputed to the prosecution and should have been
provided earlier to the defense.
     The second witness was Fate Childress, an inmate in the jail. 
Defense Counsel objected on the ground that he could have been
informed by the Prosecutor the night before or earlier in the trial
about Mr. Childress's prospective testimony.  The Prosecutor
responded that he had assumed Mr. Isbell would not testify and that
Mr. Childress was a rebuttal witness who would rebut Mr. Isbell's
testimony about being "shaken" by the crime and sorry that it had
happened.  It would, he said, also rebut Mr. Isbell's statement
that an investigator "lied" when he said Mr. Isbell did not seem to
be upset about the crime on the day it occurred and he was taken
into custody.  
     The objection was overruled, but court was recessed a short
time to allow Defense Counsel to confer with the witness.  When he
returned to the courtroom, Defense Counsel renewed his objection. 
He pointed out that Mr. Childress would testify about what Mr.
Isbell had said in the presence of Mr. Childress and seven or eight
other prisoners and Defense Counsel could not possibly interview
them all in the middle of the trial to learn what the other
prisoners may have heard.  
     Mr. Childress testified (as abstracted, omitting record page
references):

          Mr. Isbell came in and was telling us about how he went
     in after the money.  He said the bitch was moving too slow and
     after she got up to the counter he said I just pulled -- shot
     her and let her know that I wasn't playing.  He said you
     should have seen the glasses fly from her face.  He acted like
     nothing had happened.  He just said you know "The bitch
     deserved to die."  All of us was standing around there, yes
     sir.

     Obviously, the Rules of Criminal Procedure do not require the
State to provide the defense with the names of rebuttal witnesses
because until the defense case has been presented the State can not
know of witnesses needed for rebuttal.  Wainright v. State, 302
Ark. 371, 790 S.W.2d 420 (1990); Weaver v. State, 290 Ark. 556, 720 S.W.2d 905 (1986).  The argument here is that the State did not
tell the defense about the oral statement of Mr. Isbell to Mr.
Childress as it was required to do pursuant to Ark. R. Crim. P.
17.1(a)(ii) which requires disclosure by the prosecution to the
defense of "any oral statements" made by the defendant.  Although
we have some doubt whether the Trial Court was informed of this
argument with respect to Mr. Childress's statement, we will address
the issue on its merits. 
     The only specific case authority cited on this point by Mr.
Isbell is Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988), in
which a ground upon which we reversed the conviction was the
failure to disclose rebuttal testimony of which the Prosecutor
purportedly learned only minutes before it was presented.  There we
referred to Ark. R. Crim. P. 19.2 which requires the prosecution to
notify the court and opposing party of information discovered
during the trial if disclosure of it is required by the Rules.  In
the Bennett case, no such disclosure was made, and the witness's
testimony was a complete surprise to the Trial Court and to the
defense.  In this case there was disclosure, albeit later than the
defense would have liked, in accordance with Rule 19.2, and the
Trial Court was thus permitted to consider whether it was proper
rebuttal or not.
     If the prosecution had known during its case-in-chief of the
evidence to be presented by Mr. Childress, it might properly have
been presented then, but that does not mean the evidence was not
proper for rebuttal.  In Pyle v. State, 314 Ark. 165, 862 S.W.2d 821 (1992), we said rebuttal evidence may overlap the State's case-
in-chief.  It must, however, be responsive to the defense evidence. 
In Birchett v. State, 289 Ark. 16, 708 S.W.2d 625 (1986), we
disallowed evidence presented as rebuttal because the prosecution
had elicited on cross-examination the evidence it then sought to
rebut.  We pointed out that it is within the Trial Court's
discretion to decide the propriety of evidence offered in rebuttal. 
See Jordan v. State, 323 Ark. 628, 917 S.W.2d 164 (1996): Caldwell
v. State,  322 Ark. 543, 910 S.W.2d 667 (1995).  There was no abuse
of discretion in this instance.

                     5. Judicial confession
     In response to all four of the points argued by Mr. Isbell and
discussed above, the State's brief responds only that there can be
no prejudice resulting from any of the errors alleged in view of
Mr. Isbell's "judicial confession."  We agree, as noted above, that
Mr. Isbell's testimony admitted every element of capital felony
murder.  The only arguable exception might be a lack of evidence
that he caused the death "under circumstances manifesting extreme
indifference to the value of human life."  That element is provided
by the mere fact of pointing a loaded gun at the deceased in the
course of a robbery, whether or not there was an intent to shoot. 
See Davis v. State, 325 Ark. 96, 925 S.W.2d 402 (1996).
     The only case from this Court cited by the State for the
proposition that the judicial confession cured the alleged errors
is Towe v. State, 304 Ark. 239, 801 S.W.2d 42 (1990).  In the Towe
case we agreed, in an obiter dictum, with the decision of our Court
of Appeals in Pool v. State, 29 Ark. App. 234, 780 S.W.2d 350
(1989).  There the Court of Appeals declined an invitation to throw
out a judicial confession on the ground that it had been induced by
the presentation of physical evidence which should have been
suppressed.  
     Beginning with Hays v. State, 268 Ark. 701, 597 S.W.2d 821
(Ark. App. 1980), in which it was said that evidence rules could be
"relaxed" when a defendant had confessed in open court, our Court
of Appeals has developed a line of cases dealing with the effect of
judicial confessions.  Perhaps the strongest statement came in
Barlow v. State, 28 Ark. App. 21, 770 S.W.2d 186 (1989), in which
it was said that "allegedly improper evidence was of no consequence
to the appellant and not prejudicial."  That may be so when the
evidence has to do solely with the elements of the crime and
whether they were committed.  In a case, however, where the
evidence alleged to have been received in error may have further
consequences, such as influencing the jury with respect to the
sentence to be received, prejudice may occur.  
     While it may be said in the case now before us that there was
no possibility of prejudice from, for example, the testimony of Mr.
Childress as the jury imposed the lesser of the only two possible
sentences, we remain unwilling to make a statement that a judicial
confession universally cures trial error.  We have thus addressed
the merits of the issues even though the State declined to do so.

                         6. Other errors
     As discussed earlier, the transcript of the record in this
case has been reviewed in accordance with our Rule 4-3(h) which
requires, in cases in which there is a sentence to life
imprisonment or death, that we review all prejudicial errors in
accordance with Ark. Code Ann.  16-91-113(a).  None have been
found.
     Affirmed.
     Glaze, J., concurs solely because the errors submitted by
appellant on appeal are harmless in view of his judicial confession
during his case-in-chief.