Willie Gaster Davis v. State of Arkansas

Willie Gaster DAVIS v. STATE of Arkansas

CR 97-401                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered October 2, 1997


1.   Criminal procedure -- inculpatory statement taken without
     presence of appointed counsel violates right to counsel --
     waiver of right to counsel from police-initiated interrogation
     invalid. -- Bradford v. State, 325 Ark. 278, 927 S.W.2d 329
     (1996), cert. denied 117 S. Ct. 583 (1996) held that an
     inculpatory statement taken without the presence of counsel,
     but after counsel had been appointed at a probable cause
     hearing, was a violation of the appellant's Sixth Amendment
     right to counsel; it contained an analysis of Michigan v.
     Jackson, 475 U.S. 625 (1986), where the United State Supreme
     Court held that if 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 in invalid. 

2.   Criminal procedure -- appellant initiated contact with police
     -- right to counsel may be waived without notice or
     consultation with attorney. -- Because the holding in Michigan
     v. Jackson was limited to police-initiated interrogation, it
     was clear that the court in Bradford v. State had no intention
     of broadening the Supreme Court's holding found in Jackson;
     appellant did not dispute that he had initiated the contact
     with the police on April 28; nothing in Bradford or Jackson
     mandated a result opposite of that reached by the trial court;
     even after counsel is appointed at arraignment, a defendant
     may choose to waive counsel without notice or consultation
     with an attorney.  

3.   Criminal procedure -- custodial confession presumed
     involuntary -- factors considered in examining voluntariness
     of confessions. -- A custodial confession is presumptively
     involuntary and the burden is on the State to show that the
     waiver and confession was voluntarily made; in examining the
     voluntariness of confessions, the supreme court makes an
     independent determination based on the totality of the
     circumstances, and reverses the trial court only if its
     decision was clearly erroneous; the inquiry into the validity
     of the defendant's waiver has two separate components: 
     whether the waiver was voluntary, and whether the waiver was
     knowingly and intelligently made; in determining
     voluntariness, the following factors are considered:  age,
     education, and intelligence of the accused, lack of advice as
     to his constitutional rights, length of detention, the
     repeated and prolonged nature of questioning, or the use of
     physical punishment; other relevant factors in considering the
     totality of the circumstances include the statements made by
     the interrogating officer and the vulnerability of the
     defendant; in addition, the accused must have a full awareness
     of both the nature of the right being abandoned and the
     consequences of the decision to abandon it in order for his
     waiver to be knowingly and intelligently made. 

4.   Criminal procedure -- evidence pointed to voluntary waiver of
     right to counsel -- trial court not clearly erroneous in
     denying appellant's motion to suppress. -- Where the record
     did not show that the police were attempting to "spark"
     appellant's initiative in making the April 28 contact; the
     defendant-initiated contact came some five days after the last
     police-initiated contact; appellant voluntarily waived his
     rights and elected to make a statement on April 28; appellant
     was nineteen years of age at the time of the statement; he had
     completed at least the ninth grade, and could read and write;
     a forensic mental evaluation showed that appellant's
     intellectual functioning was within the low-average range; the
     record demonstrated that appellant was fully advised of his
     constitutional rights; and there was little or no evidence of
     threats of physical violence against appellant, promises of
     leniency, or other misrepresentations of fact, the trial court
     was not clearly erroneous in denying appellant's motions to
     suppress.

5.   Criminal procedure -- uncounseled misdemeanor convictions
     introduced as evidence relevant to sentencing -- admission of
     convictions did not constitute reversible error. -- Where the
     State's introduction into evidence of two earlier uncounseled
     misdemeanor convictions of third-degree battery during the
     sentencing phase were not admitted against appellant pursuant
     to a recidivist or enhancement statute as contemplated by the
     cases cited by appellant, rather, the misdemeanor convictions
     were introduced under Ark. Code Ann.  16-97-103(2) (Supp.
     1995), which merely includes prior felony and misdemeanor
     convictions within the definition of evidence relevant to
     sentencing, thereby allowing the jury or court to exercise its
     discretion in considering all evidence relevant to sentencing,
     and does not mandate automatic enhancement due to prior
     misdemeanor convictions, the admission of the convictions did
     not constitute reversible error; a valid misdemeanor
     conviction under Scott v. Illinois, 440 U.S. 367 (1979), is
     admissible to enhance punishment at a subsequent conviction.



     Appeal from Desha Circuit Court; Sam Pope, Judge; affirmed.
     Arkansas Public Defender Commission, by:  Teri Chambers, for
appellant.
     Winston Bryant, Att'y Gen., by:  David R. Raupp, Asst. Att'y
Gen., for appellee.
     Annabelle Clinton Imber, Justice.
     The appellant, Willie Gaster Davis, appeals his judgments of
conviction for first-degree murder, robbery, theft of property, and
false imprisonment.  On appeal, he argues that the trial court
erred in failing to suppress his statement and that uncounseled
misdemeanor convictions were impermissibly introduced against him
during sentencing.  We find no error and affirm.  
     Because Davis does not challenge the sufficiency of the
evidence on appeal, we provide only a brief recitation of the facts
adduced at trial.  Traci Noble testified that she was best friends
with the victim, Nikki Muse.  On April 21, 1995, Muse (who was
driving) and Noble went out riding in a white Grand Am belonging to
Noble's sister.  They eventually went to Dumas to find Odis Madden,
"Mane," a friend of Noble's.  While driving in Dumas, they saw some
boys on the corner who flagged them down.  Noble explained that
they were looking for Madden, and the boys answered that they could
show them where he lived.  Noble and Muse allowed these three boys
to enter the back seat of the vehicle, although Noble said that
neither she nor Muse knew who they were.
     Noble testified that these boys led them to a dead-end street,
and told them that Madden lived at a house that did not have lights
on at the time.  The boy on Noble's side of the car began to get
out of the vehicle, pulled her out of the car, and grabbed the gold
chains she was wearing, telling her to "give him my money."  Noble
testified that the boy on Muse's side of the vehicle "[did] the
same thing with her, Nikki."  Noble later identified the man behind
her who took her chains as Willie Spencer.  She thought the boy in
the middle, who ran away, was named Bryan.  The third boy pushed
Muse into the passenger seat, sat in the driver's seat, and drove
away.  Noble saw this boy demand money from Muse, who in turn gave
money to him.  Noble testified that there was no doubt in her mind
that Muse did not want to go with this boy.  She never saw Muse
alive again.  She made an in-court identification of Davis as the
man who demanded money from Muse and drove off with her.  Noble
managed to ultimately escape from Spencer after which she contacted
the police.  At the police station Noble was shown a photo lineup
and eventually identified Davis as the man who drove off with Muse.
     Spencer testified that on April 21, 1995, he was standing
around with Willie Davis and Bryan Woods on Cherry Street in Dumas. 
He said that two girls approached them driving a white Grand Am; he
knew the names of both girls.  He testified that Noble asked them
if they wanted to go riding, and if they knew where Odis Madden
lived.  The boys got in the car and led the girls to a dead-end
street.  Spencer testified that Davis got in the car first, behind
Muse, then he got in, and then Bryan Woods.  They directed the
girls to a dead-end street, Peach Street, when Spencer grabbed
Noble and took her chains; Bryan Woods then ran away.  Spencer
testified that he demanded money from her, but that he gave Noble
her chains back.
     Spencer saw Davis get out of the car telling Muse "to scoot
over," adding that Davis "[m]ight of did choke [Muse]."  Spencer
was then presented with his testimony from his own trial, where he
testified that Davis "wasn't acting right.  As soon as the car
stopped. . . he said this is a robbery and he just grabbed her." 
Spencer also testified that he knew that Muse did not want to leave
with Davis, and that it was Davis who directed the girls to Peach
Street, which was not where Odis Madden lived.
     A police officer found a vehicle matching the description of
the missing Grand Am in front of 405 West Banks Street.  Inside the
police discovered Davis, who appeared to be asleep on a couch, as
well as Muse in a sprawled position on the same couch.  Muse was
dead with what appeared to be blood coming from her vaginal and
anal areas.  At this time Davis came up off the couch and said "did
you get the other two."  When asked who he was talking about, he
said, "Willie Spencer and Bryant.  They left with the other girl."
     While in custody, Davis gave a statement to Everett Cox, the
Dumas Chief of Police, which was admitted at trial.  In this
statement, Davis admitted that he told Muse to give him the money
that she had and that he told her to get in the passenger side of
the car.  Davis said that they rode around looking for Noble and
Spencer, and that Muse later consented to having sex.
     The medical examiner's testimony established that Muse had
neck injuries consistent with manual strangulation.  Her injuries
also suggested that she had been sexually assaulted.    
     The jury convicted Davis of first-degree murder, robbery,
theft of property, and first-degree false imprisonment.  The jury
was unable to reach a verdict on the rape charge, and the trial
court granted a mistrial on that count.  For sentencing purposes,
the underlying robbery and false-imprisonment convictions were
merged with the first-degree murder conviction.  The trial court,
on the State's motion, dismissed the theft of property misdemeanor
conviction.  The jury sentenced Davis to a term of life
imprisonment.
        1.  Voluntariness of Davis's April 28 Statement.

     At the suppression hearing, Chief of Police Everett Cox
testified that at 5:47 a.m. on April 22, after Davis was read his
Miranda rights, Davis said that he would not make a statement. 
Later that morning, Davis was taken to Dumas Municipal Court for
his arraignment.  Cox was aware that at the time, attorney Bing
Colvin was appointed as Davis's public defender.  Cox conceded that
any subsequent contact with Davis would have been after the
appointment of counsel for Davis.  Cox testified that at 1:54 p.m.
on April 22 he initiated contact with Davis in an attempt to take
a statement from him.  On April 23, Cox recalled that someone from
the police again initiated contact with Davis in an attempt to take
a statement.  Cox was not sure who initiated this contact, but
believed it was Investigator Donigan.
     Cox testified that on April 28, Davis contacted him "through
the jail," saying that he wanted to talk with him.  When asked
whether anyone made contact with Davis prior to that request, Cox
answered in the negative.  After Cox received this request, he
conducted a videotaped interview with Davis.  Cox testified that on
the videotape, he "asked [Davis] to state why he wanted to talk and
he said that he did make initial contact with me before anything
was done."  Cox added that he read Davis his Miranda rights, and
that no threats or other coercive acts were directed toward Davis
off of the camera.  Additionally, Davis was not restrained, and he
made no requests that were denied him.  Davis also executed a
rights-waiver form that was filled out by Cox as Davis answered the
questions; Davis initialed the individual responses.  Cox also
wrote out the substance of Davis's statement; Davis signed this
statement at the end.
     Officer Michael Donigan testified that on the afternoon of
April 22, at 1:54 p.m., he came into contact with Davis to question
him about the homicide.  Donigan read Davis his Miranda rights from
a rights form, which Davis executed.  Donigan wrote down the
substance of Davis's statement.  Donigan also testified that he was
present at 1:19 p.m. on April 23, when he and Officer Monty
Kilibrew again executed a rights waiver with Davis, however Davis
declined to make a statement at this time. 
     Chester Lee James, Jr., an inmate at the Dumas City Jail while
Davis was also incarcerated there, testified that the police
contacted Davis.  James recalled that either Officer Donnahoe
[sic?] or Kilibrew "consulted with [Davis] at one time. . . asked
[Davis]. . . why he killed the girl."  James testified that Davis
became upset at this questioning.  After this, the officer told
Davis that he "want[ed] to make sure you get the chair."  When
asked to recall how long Davis had been in jail when this contact
occurred, James answered three or four days.  James also testified
that on April 28, he contacted the chief of police at Davis's
request.
     Prior to trial, the State conceded that the statements taken
at 1:54 p.m. on April 22 and the one taken at 1:19 p.m. on April
23 were inadmissible because the interrogating officers could not
recall who initiated the questioning with Davis.  However, the
trial court overruled the motion to suppress with respect to the
April 28 statement, which was ultimately admitted at trial.
     On appeal, Davis contends that the trial court erred in
denying his motion to suppress his April 28 statement.  He first
argues that this court's holding in Bradford v. State 325 Ark. 278,
927 S.W.2d 329 (1996), cert. denied 117 S. Ct. 583 (1996), mandates
suppression of his April 28 statement, and alternatively argues
that his waiver of rights and subsequent statement on April 28 was
not voluntarily made due to the intervening police-initiated
contacts.
     Davis initially relies on Bradford v. State, supra, where this
court held that an inculpatory statement taken without the presence
of counsel, but after counsel had been appointed at a probable
cause hearing, was a violation of the appellant's Sixth Amendment
right to counsel.  Bradford involved an analysis of Michigan v.
Jackson, 475 U.S. 625 (1986), where the United State Supreme Court
held that "if 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 in invalid."  In Bradford, the
appellant had not requested counsel, but counsel had nonetheless
been appointed.  This court concluded that the appellant's
unawareness that she had been appointed counsel was irrelevant,
"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 [citation omitted], simple diligence requires that
police officers take pains to learn whether counsel was appointed
at a probable cause hearing."  Bradford, supra.
     In the present case, Davis appears to concede that the holding
in Michigan v. Jackson is limited to police-initiated
interrogation, yet maintains that this court in Bradford v. State,
supra, did not "specify that its ruling was based on the fact that
police officers rather than Bradford initiated the contact."  This
argument is misplaced.  A plain reading of Bradford v. State
suggests that this court had no intention of broadening the Supreme
Court's holding found in Michigan v. Jackson.  Rather, the question
presented in Bradford was whether the appellant's failure to
actually request counsel affected her right to counsel under
Michigan v. Jackson, and if knowledge of the municipal court's
appointment of counsel could be imputed to police.  Davis concedes
that "on April 28, 1995, it was undisputed that [Davis] initiated
the contact with Chief Everett Cox."  Because Davis himself
initiated contact with the police on April 28, nothing in Bradford
v. State or Michigan v. Jackson mandates a result opposite of that
reached by the trial court.  As one treatise has noted, "Even after
counsel is appointed at arraignment, a defendant may choose to
waive counsel without notice or consultation with an attorney. 
Under Jackson, police cannot initiate the contact, but the
defendant is free to initiate the contact."  David M. Nissman & Ed
Hagen, Law of Confessions  7:10 (2d ed. 1994) (citing Missouri v.
Owens, 827 S.W.2d 226 (Mo. Ct. App. 1991)).  
     Davis alternatively argues that even if he effectively waived
his right to counsel, this action was coerced by the police efforts
in contacting him after the appointment of counsel on April 22 and
23.  A custodial confession is presumptively involuntary and the
burden is on the State to show that the waiver and confession was
voluntarily made.  Clark v. State, 328 Ark. 501, 944 S.W.2d 533
(1997).  In examining the voluntariness of confessions, this court
makes an independent determination based on the totality of the
circumstances, and reverses the trial court only if its decision
was clearly erroneous.  Kennedy v. State, 325 Ark. 3, 923 S.W.2d 274 (1996).  As explained in Mauppin v. State, 309 Ark. 235, 831 S.W.2d 104 (1992), the inquiry into the validity of the defendant's
waiver has two separate components:  whether the waiver was
voluntary, and whether the waiver was knowingly and intelligently
made.  In determining voluntariness, we consider the following
factors:  age, education, and intelligence of the accused, lack of
advice as to his constitutional rights, length of detention, the
repeated and prolonged nature of questioning, or the use of
physical punishment.  Hood v. State, 329 Ark. 21, 947 S.W.2d 328
(1997).  Other relevant factors in considering the totality of the
circumstances include the statements made by the interrogating
officer and the vulnerability of the defendant.  Id.  In addition,
the accused must have a full awareness of both the nature of the
right being abandoned and the consequences of the decision to
abandon it in order for his waiver to be knowingly and
intelligently made.  Esmeyer v. State, 325 Ark. 491, 930 S.W.2d 302
(1996).
     In the present case the thrust of Davis's argument is that the
intervening police contacts on April 22 and 23 rendered his waiver
and statement on April 28 involuntary.  Davis emphasizes that after
his initial expression of his intent not to make a statement and
his appointment of counsel on the morning of April 22, the police
made two separate attempts to take a statement from him.  Chief Cox
himself testified that this occurred at 1:54 p.m. on April 22 and
later on April 23.  The encounter at 1:54 p.m. on April 22 yielded
a statement, not admitted at trial, while Davis did not give a
statement at the interview at 1:19 p.m. on April 23.   In the
present case, the immediate fruits of the two police-initiated
contacts were not admitted at trial.  Additionally, there was a
five-day gap between the police-initiated contact on April 23, and
the defendant-initiated contact on April 28.  To the extent that it
can be argued the police-initiated contacts were an attempt at
repeated questioning designed to wear down Davis's resistance or
change his mind, this five-day gap would serve to avoid the effects
of repeated questioning.  See Hatley v. State, 289 Ark. 130, 709 S.W.2d 812 (1986).  
     Some courts have refused to recognize a defendant's initiation
of contact with police when it is the result of an earlier, illegal
interrogation.  Nissman & Hagen, supra,  6:35 at n.91.  For
example, in Wainwright v. Delaware, 504 A.2d 1096 (Del. 1986),
cert. denied, 479 U.S. 869 (1986), the defendant initiated a
conversation and gave an inculpatory statement some forty-five
minutes after an illegal police-initiated interrogation under
Edwards v. Arizona, supra.  That the defendant's response came
forty-five minutes afterward did not "sanitize it".  Wainwright v.
Delaware, supra.  The Delaware Supreme Court further explained:
Nor does the fact that the defendant's statement was made
after he was placed alone in a cell render it a purely
spontaneous one.  Indeed, the opportunity to mull over
the effect of [the codefendant's] accusatory statements
could reasonably have had the opposite effect -- to
impress upon the defendant the seriousness of his
predicament and the need to rebut his codefendant's
accusations.  Any attempt to "spark" the accused's
initiative to make a statement in the absence of counsel
through presentation of evidence will contaminate the
waiver.  [citations omitted].

Wainwright v. Delaware, supra.  
     In the present case, the record does not show that the police
were attempting to "spark" Davis's initiative in making the April
28 contact.  Significantly, the defendant-initiated contact came
some five days after the last police-initiated contact.  The
evidence also suggests that Davis voluntarily waived his rights and
elected to make a statement on April 28.  Davis was nineteen years
of age at the time of the statement.  He had completed at least the
ninth grade, and could read and write.  A forensic mental
evaluation showed that Davis's intellectual functioning was within
the low-average range.  The record also demonstrates that Davis was
fully advised of his constitutional rights, as is evidenced by the
execution of the rights-waiver form as well as Chief Cox's
testimony.  There was little or no evidence of threats of physical
violence against Davis, promises of leniency, or other
misrepresentations of fact.  Based on the foregoing, we cannot say
that the trial court was clearly erroneous in denying Davis's
motions to suppress.
    2.  Admissibility of Uncounseled Misdemeanor Convictions.
     During the sentencing phase of trial, the State introduced
into evidence two misdemeanor convictions of third-degree battery
that Davis obtained in 1994.  Davis was only fined for these
convictions, and was not sentenced to any time in prison.  The
record shows that Davis was not represented by counsel during these
misdemeanor proceedings.  On appeal, Davis argues that the
admission of these uncounseled misdemeanor convictions constitutes
reversible error.
     Davis initially cites to Baldasar v. Illinois, 446 U.S. 222
(1980) (per curiam) (plurality opinion), overruled by Nichols v.
United States, 511 U.S. 738 (1994), where the United States Supreme
Court held that a constitutionally valid misdemeanor conviction
obtained under Scott v. Illinois, 440 U.S. 367 (1979), could not
be used under an "enhanced penalty statute" to convert a subsequent
misdemeanor into a felony with a prison term.  This court followed
suit in State v. Brown, 283 Ark. 304, 675 S.W.2d 822 (1984), where
the trial court granted the defendant's motion to suppress three
prior DWI convictions under a charge of DWI, fourth offense.  The
trial court suppressed these convictions because the defendant had
not been represented by counsel in the earlier proceedings.  This
court affirmed, framing the issue as "whether [Baldasar] bars prior
uncounseled misdemeanor convictions from being used to enhance
punishment for a subsequent offense."  State v. Brown, supra.  This
court observed that the case presented a similar situation to the
enhancement statute in Baldasar, as the first DWI offense was
punishable by imprisonment from twenty-four hours to one year,
while the second, third, and fourth offenses were punishable in
increasing ranges cumulating in imprisonment for one to six years
on the fourth offense.  The Brown court concluded that Baldasar
controlled the facts of the case, and affirmed the trial court's
suppression of the convictions.
     Davis fails to point out that in Nichols v. United States, 511 U.S. 738 (1994), the Supreme Court expressly overruled Baldasar in
a case involving a criminal sentencing point assessed for a prior,
uncounseled misdemeanor conviction under the United States
Sentencing Commission's Guidelines.  The Court noted that
"[e]nhancement statutes, whether in the nature of criminal history
provisions such as those contained in the Sentencing Guidelines, or
recidivist statutes that are commonplace in state criminal laws, do
not change the penalty imposed for the earlier conviction."  Id. 
Moreover, reliance on such a conviction was consistent with the
"traditional understanding of the sentencing process," recognized
as less exacting than the determination of guilt.  Id. 
Accordingly, the Supreme Court overruled Baldasar and held that a
valid misdemeanor conviction under Scott v. Illinois, supra, is
also admissible to enhance punishment at a subsequent conviction.
     The present case does not squarely present this court with an
opportunity to reconsider the continuing validity of Brown. 
Notably, the uncounseled misdemeanor convictions were not admitted
against Davis pursuant to a recidivist or enhancement statute as
contemplated in Baldasar and Brown.  Rather, the misdemeanor
convictions were introduced under Ark. Code Ann.  16-97-103(2)
(Supp. 1995), which merely includes prior felony and misdemeanor
convictions within the definition of "[e]vidence relevant to
sentencing."  This statutory scheme simply allows the jury or court
to exercise its discretion in considering all evidence relevant to
sentencing, and does not mandate automatic enhancement due to prior
misdemeanor convictions.  We have no doubt that this procedure for
admitting uncounseled misdemeanor convictions otherwise valid under
Scott v. Illinois, supra, would withstand scrutiny under Nichols v.
United States, supra.  Accordingly, we reject Davis's argument that
the admission of these convictions constituted reversible error.
                   3.  Rule 4-3(h) Compliance.
     The record has been reviewed for prejudicial error pursuant to
Ark. Sup. Ct. R. 4-3(h), and no reversible errors were found.
     Affirmed.