Anna Clark v. State of Arkansas
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SUPREME COURT OF ARKANSAS
No.
CR07-1276
ANNA CLARK,
Opinion Delivered
September 25, 2008
APPELLANT,
VS.
STATE OF ARKANSAS,
APPELLEE,
APPEAL FROM THE LINCOLN
COUNTY CIRCUIT COURT,
NO. LCR-2006-49-5-2,
HON. ROBERT HOLDEN WYATT,
JR., JUDGE,
AFFIRMED.
ANNABELLE CLINTON IMBER, Associate Justice
1.
CRIMINAL PROCEDURE — VOLUNTARINESS OF CONFESSION — STANDARD OF REVIEW SET
FORTH IN ORNELAS V . UNITED STATES. — Under the standard of review articulated in Ornelas
v. United States, the determination of the historical facts of the case are the proper domain
of the trial court and appellate review of its finding in that regard will be for clear error,
whereas the ultimate question of whether a confession is voluntary is a matter of law that
must be reviewed de novo.
2.
CRIMINAL PROCEDURE — VOLUNTARINESS OF CONFESSION — APPELLATE COURT WAS NOT
CONSTITUTIONALLY MANDATED TO APPLY THE ORNELAS STANDARD OF REVIEW . — The
federal de novo standard of review has not been made binding on the states in cases where
the voluntariness of a confession is at issue; neither Ornelas nor Miller v. Fenton held that
such a de novo review is constitutionally required under either the Fourth Amendment or the
Fifth Amendment to the United States Constitution; the supreme court therefore concluded
that it was not constitutionally mandated to apply the Ornelas standard of review when
considering the voluntariness of a defendant’s confession.
3.
CRIMINAL PROCEDURE — VOLUNTARINESS OF CONFESSION — ARKANSAS’S STANDARD OF
REVIEW IS CONSISTENT WITH THE REQUIREMENTS OF ORNELAS. — On appeal, the appellate
court reviews the trial court’s findings of fact for clear error and makes an independent, or
de novo determination of voluntariness; this standard for reviewing a trial court’s
determination of voluntariness is consistent with the requirements of Ornelas.
4.
CRIMINAL PROCEDURE —
VOLUNTARINESS OF CONFESSION
—
DETERMINED BASED ON
TOTALITY OF THE CIRCUMSTANCES SURROUNDING WAIVER OF RIGHTS. — A statement made
while in custody is presumptively involuntary, and the burden is on the State to prove by a
preponderance of the evidence that a custodial statement was given voluntarily and was
knowingly and intelligently made; in order to determine whether a waiver of Miranda rights
is voluntary, the appellate court looks to see if the confession was the product of free and
deliberate choice rather than intimidation, coercion, or deception; in making this
determination, the appellate court reviews the totality of the circumstances surrounding the
waiver.
5.
CRIMINAL
PROCEDURE
—
VOLUNTARINESS OF CONFESSION
—
TRIAL JUDGE WAS NOT
CLEARLY ERRONEOUS IN HIS EVALUATION OF THE CREDIBILITY OF THE WITNESSES. — A two-
step analysis is employed to determine the voluntariness of a confession alleged to be the
result of a false promise of leniency; if, during the first step, the court decides that the
officer’s statement is an unambiguous false promise of leniency, there is no need to proceed
to the second step because the defendant’s statement is clearly involuntary; if the officer’s
statement is ambiguous, the vulnerability of the defendant must be examined; here, appellant
testified that the detective promised to keep the matter out of the press, assured her that she
would not go to jail, and that hopefully it would not affect her license as a psychologist; the
detective denied making any promise of leniency in return for her statement, but did
acknowledge telling her that he would speak to the prosecutor; the supreme court therefore
could not say that the trial judge was clearly erroneous in his evaluation of the credibility of
the witnesses.
6.
CRIMINAL
— APPELLANT WAS NOT
PARTICULARLY VULNERABLE SUCH THAT HER FREE WILL WAS OVERBORNE . — Factors to be
considered in determining the vulnerability of a defendant include (1) the age, education, and
intelligence of the accused; (2) how long it took to obtain the statement; (3) the defendant’s
experience, if any, with the criminal justice system; and (4) the delay between the Miranda
warnings and the confession; even assuming that the detective’s promise to talk to the
prosecutor was an ambiguous promise of leniency, which is contrary to Arkansas case law,
it could not be said that Appellant was particularly vulnerable at that point in time such that
her free will was overborne; it is undisputed that she waived her Miranda rights; she testified
that she had a doctoral degree in psychology and considered herself to be fairly intelligent;
Appellant knew that having sex with an inmate was a crime and that if she was charged, she
could lose her license and go to jail; as an employee of the Department of Correction,
Appellant was not a total stranger to the criminal justice system; between the time she signed
the rights form and the time she gave her statement, a period of one hour and fifteen minutes
elapsed, which is not undue; in viewing the totality of the circumstances, Appellant’s
confession was voluntarily, knowingly, and intelligently given.
7.
CONSTITUTIONAL LAW — DUE PROCESS — NO RIGHT UNDER ARKANSAS CONSTITUTION TO
HAVE ALL PHASES OF POLICE INTERROGATION LEADING UP TO CONFESSION RECORDED . —The
PROCEDURE
—
VOLUNTARINESS OF CONFESSION
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lack of a recording does not invoke a constitutional safeguard under Arkansas law; it will be
considered as a factor in the totality of the circumstances mix, but a confession will not be
invalidated for that reason alone; because there is no indication that the supreme court has
traditionally reviewed custodial interrogation requirements more rigorously than the federal
courts, Appellant’s argument that the due process clause of the Arkansas Constitution
requires a recording of all phases of a police interrogation leading to a confession was
rejected.
8.
CRIMINAL PROCEDURE — VOLUNTARINESS OF CONFESSION — EVEN IF ADMISSION OF THE
CONFESSION WAS IMPROPER , SUCH ERROR WOULD BE HARMLESS IN LIGHT OF OTHERWISE
OVERWHELMING EVIDENCE OF APPELLANT ’S GUILT . — Under the harmless-error rule adopted
by this court in Riggs v. State, any error resulting from admission of the confession would
be harmless in light of the otherwise overwhelming evidence of Appellant’s guilt.
9.
TRIAL — JURY INSTRUCTIONS — TRIAL COURT DID NOT ABUSE ITS DISCRETION IN REFUSING
TO GIVE REQUESTED INSTRUCTION ON WEIGHT AND CREDIBILITY OF CONFESSION . — A nonAMI Criminal instruction should be given only when the trial judge finds that the AMI
Criminal instruction does not state the law or that AMI Criminal does not contain a needed
instruction on the subject; AMI Criminal 2d 104, which instructs the jury that they are the
sole judge of the weight and credibility of the witnesses, necessarily covers the subject of the
weight and credibility to be given to a defendant’s confession; the AMI Criminal instruction
accurately states the law and sufficiently addresses the particular evidence that Appellant
seeks to emphasize; thus, the trial court did not abuse its discretion in refusing to give the
requested instruction.
10.
TRIAL — BURDEN OF PROOF — SIGNIFICANCE OF BEYOND-A-REASONABLE-DOUBT STANDARD .
— In criminal cases, the government must prove every element of a charged offense beyond
a reasonable doubt; the beyond-a-reasonable-doubt standard of proof “plays a vital role in
the American scheme of criminal procedure,” because it operates to give “concrete
substance” to the presumption of innocence to ensure against unjust convictions, and to
reduce the risk of factual error in criminal proceedings; at the same time, by impressing upon
the fact-finder the need to reach a subjective state of near certitude of the guilty of the
accused, the standard of proof symbolizes the significance that our society attaches to the
criminal sanction, and thus to liberty itself.
11.
TRIAL — JURY
— AMI CRIMINAL INSTRUCTION REGARDING REASONABLE
DOUBT IS NOT UNCONSTITUTIONAL. So long as the court instructs the jury on the necessity
that the defendant’s guilt be proved beyond a reasonable doubt, the Constitution does not
require that any particular form of words be used in advising the jury of the government’s
burden of proof; instead, taken as a whole, the instructions must correctly convey the concept
of reasonable doubt to the jury; in comparing the “near certainty” language proposed by
Appellant to the “abiding conviction” language used in AMI Criminal 2d 110, the supreme
court concluded that the latter phrase required a higher level of conviction; here, the jury
INSTRUCTIONS
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instruction given at trial, taken as a whole, correctly conveyed the concept of reasonable
doubt to the jury; there is no reasonable likelihood that the jurors who determined
Appellant’s guilt applied the instruction in a way that violated due process under the U.S. and
Arkansas Constitutions.
Appeal from Lincoln Circuit Court; Robert Holden Wyatt, Jr., Judge; affirmed.
John Wesley Hall, Jr., for appellant.
Dustin McDaniel, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., for appellee.
Appellant Anna Clark appeals from her conviction of two counts of sexual assault in
the third degree. She asserts five points on appeal: (1) the standard of review applied by this
court to a trial court’s ruling on the voluntariness of a confession does not comport with the
standard of review set forth in Ornelas v. United States, 517 U.S. 690 (1996); (2) the circuit
court erred in failing to suppress Appellant’s confession; (3) the circuit court erred when it
declined to recognize Appellant’s right under the Arkansas Constitution to a recording of the
entire interrogation; (4) the circuit court erred in failing to give Appellant’s proffered nonArkansas Model Jury Instructions-Criminal instruction on the jury’s duty to determine the
credibility to be given to a defendant’s confession; and (5) the circuit court erred in failing to
hold AMI Criminal instruction 110, the reasonable-doubt instruction, unconstitutional under
Jackson v. Virginia, 443 U.S. 307 (1979), and in failing to give Appellant’s proffered instruction
on reasonable doubt. Because this case involves the interpretation and construction of the
United States and Arkansas Constitutions and the appeal presents issues of first impression and
issues of substantial public interest, which need clarification or development of the law, our
jurisdiction is pursuant to Arkansas Supreme Court Rule 1-2(a)(1) and (b)(1), (3), (4) and (5)
(2008). We find no error and affirm the judgment of conviction.
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Appellant was employed in early 2006 by the Arkansas Department of Correction as
a psychologist and one of her patients was inmate Dan Burns. On April 17, 2006, a
correctional officer, Latasha Robinson, discovered Appellant having sexual intercourse with
Burns in her counseling office. Warden Gaylon Lay interviewed Appellant shortly after the
alleged incident. At that point, she denied the allegations. Then, in a subsequent interview
conducted by Detective Kenneth Whitmore on April 18, 2006, she admitted the allegations.
The detective did not record the entire interview; rather, the interview began around 3:15
p.m. and the recording of the confession did not start until 4:30 p.m. No one else was present
in the interview room. In a separate interview, inmate Dan Burns admitted the allegations.
By felony information, Appellant was charged with two counts of sexual assault in the
third degree. She eventually filed a motion to suppress claiming that her confession was
involuntary and the product of false promises. Appellant further argued that the State failed
to rebut the presumption of involuntariness due to the lack of a complete recording of the
entire interview, as required by article 2, section 8 of the Arkansas Constitution. Following
a hearing, the circuit court determined that the statement was freely and voluntarily given and
denied the motion to suppress.
At trial, Appellant proffered two jury instructions. One proffered instruction advised
the jury that it was the sole judge of the weight and credibility to be given to the defendant’s
confession. The second proffered instruction added the following sentence to AMI Criminal
2d 110: “You must be convinced to [a] state of near certainty of the guilt of the accused.”
The circuit court refused to give either of the above proffered instructions.
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At the conclusion of the trial, Appellant was convicted of both counts of sexual assault.
She was sentenced to three years in the Arkansas Department of Correction and fined five
thousand dollars on each count.
I. Standard of Review - Determination of Voluntariness of a Confession
For her first point on appeal, Appellant argues that our standard of review for a trial
court’s determination on the voluntariness of a confession does not comport with the standard
of review set forth in Ornelas v. United States, 517 U.S. 690 (1996). Specifically, she claims
we have not engaged in a truly “independent review” as required by the U.S. Supreme Court
in Ornelas v. United States, in that we apply a clearly erroneous standard of review to both the
trial court’s findings of fact and its determination of voluntariness.
The Supreme Court held in Ornelas v. United States, 517 U.S. 690 (1996), that
determinations of reasonable suspicion to conduct an investigatory stop and probable cause
to perform a warrantless search should be reviewed de novo on appeal; in conducting a de
novo review, the reviewing court should take care both to review findings of historical fact
only for clear error and to give due weight to inferences drawn from those facts by judges and
law enforcement officers. The Court further held that the principal components of a
determination of reasonable suspicion or probable cause will be the events that occurred
leading up to the stop or search, and then the decision whether these historical facts, viewed
from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion
or to probable cause. Id. The first part of the analysis involves only a determination of
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historical fact, but the second is a mixed question of law and fact. Id.
In support of her argument that this court is constitutionally mandated to apply the
Ornelas standard of review when we review a trial court’s determination on the voluntariness
of a confession, Appellant relies upon the Supreme Court’s decision in United States v. D.F,
517 U.S. 1231 (1996). The Court in that case directed the Seventh Circuit Court of Appeals
to reconsider the voluntariness of a defendant’s confession in light of Ornelas v. United States.
Id. The Seventh Circuit subsequently held in United States v. D.F., 115 F.3d 413 (7th Cir.
1997), that the concept of voluntariness is governed by Ornelas v. United States. Under the
Ornelas standard, the determination of the historical facts of the case are the proper domain
of the trial court and appellate review of its findings in that regard will be for clear error;
whereas, the ultimate question of whether a confession is voluntary is a matter of law that
must be reviewed de novo. Id. We note that an earlier line of federal cases addressing the
voluntariness of a defendant’s confession reflects a continuous invocation of the de novo
standard of review and a reliance on the same considerations that informed the Court’s
decision in Ornelas. See, e.g., Miller v. Fenton, 474 U.S. 104 (1985); Mincey v. Arizona, 437
U.S. 385 (1978).
The federal de novo standard of review, however, has not been made binding on the
states in cases where the voluntariness of a confession is at issue. Neither Ornelas nor Miller
held that such a de novo review is constitutionally required under either the Fourth
Amendment or the Fifth Amendment to the United States Constitution. See Ornelas v. United
States, supra; Miller v. Fenton, supra. Several other states have reached a similar conclusion. See
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State v. Ford, 738 A.2d 937 (N.H. 1999); State v. Brockman, 528 S.E.2d 661 (S.C. 2000); State
v. Jenner, 450 N.W.2d 710 (S.D. 1990), cert. denied, 510 U.S. 822 (1993); State v. Jackson, 918
P.2d 945 (Wash. App. 1996). We therefore conclude that we are not constitutionally
mandated to apply the Ornelas standard of review when considering the voluntariness of a
defendant’s confession.
While this court is not constitutionally bound to apply the Ornelas standard of review
in determining the voluntariness of a confession, our standard for reviewing a trial court’s
determination of voluntariness is consistent with the requirements of Ornelas. Upon appeal,
we make an independent determination based upon the totality of the circumstances. Grillot
v. State, 353 Ark. 294, 107 S.W.3d 136 (2003). The ruling will be reversed if it is clearly
against a preponderance of the evidence, id., which “we [have] take[n] to be the same
standard as the ‘clearly erroneous’ rule.” Degler v. State, 257 Ark. 388, 392, 517 S.W.2d 515,
518 (1975). Any conflict in the testimony of different witnesses is for the trial court to
resolve. Cox v. State, 345 Ark. 391, 47 S.W.3d 244 (2001); Riggs v. State, 339 Ark. 111, 3
S.W.3d 305 (1999).
In essence, this court reviews the trial court’s findings of fact for clear
error, and we make an independent, or de novo, determination of voluntariness. Indeed, it
should be noted that when determining the voluntariness of a confession, our court has
frequently applied a two-prong analysis similar to that set forth in Ornelas. See, e.g., Reese v.
State, 371 Ark. 1, __ S.W.3d __ (2007); Pratt v. State, 359 Ark. 16, 194 S.W.3d 183 (2004);
Standridge v. State, 357 Ark. 105, 161 S.W.3d 815 (2004); Bunch v. State, 346 Ark. 33, 57
S.W.3d 124 (2001); Hood v. State, 329 Ark. 21, 947 S.W.2d 328 (1997); Esmeyer v. State, 325
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Ark. 491, 930 S.W.2d 302 (1996); Jackson v. State, 284 Ark. 478, 683 S.W.2d 606 (1985).
We now take this opportunity to reiterate that in cases involving a ruling on the
voluntariness of a confession, this court makes an independent determination based upon the
totality of the circumstances. We review the trial court’s findings of fact for clear error, and
the ultimate question of whether the confession was voluntary is subject to an independent,
or de novo, determination by this court.
II. Motion to Suppress
For her second point on appeal, Appellant asserts that her confession was involuntary
and the product of false promises. Based upon that assertion, she contends that the trial court
erred in denying her motion to suppress.
A statement made while in custody is presumptively involuntary, and the burden is on
the State to prove by a preponderance of the evidence that a custodial statement was given
voluntarily and was knowingly and intelligently made. Grillot v. State, 353 Ark. at 310-11,
107 S.W.3d at 145. In order to determine whether a waiver of Miranda rights is voluntary,
this court looks to see if the confession was the product of free and deliberate choice rather
than intimidation, coercion, or deception. Id. at 311, 107 S.W.3d at 145-46 In making this
determination, this court reviews the totality of circumstances surrounding the waiver. Id.
at 310, 107 S.W.3d at 145.
The credibility of the testimony of different witnesses is for the trial court to resolve,
and this court defers to the determinations of the trial judge. Grillot v. State, supra. The trial
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judge is not required to believe the testimony of any witness, especially that of the accused,
since he or she is the person most interested in the outcome of the proceedings. Flowers v.
State, 362 Ark. 193, 208 S.W.3d 113 (2005).
If a police officer makes a false promise that misleads the person in custody, and the
person in custody gives a confession because of that false promise, then the confession has not
been voluntarily, knowingly, and intelligently made. Winston v. State, 355 Ark. 11, 16, 131
S.W.3d 333, 336 (2003). In determining whether there has been a misleading promise of
reward we look at the totality of the circumstances. Id. The totality is subdivided into two
main components: first, the statement of the officer and second, the vulnerability of the
defendant. Id. We employ a two-step analysis in determining the voluntariness of the
confession. Id. If during the first step, this court decides that the officer’s statement is an
unambiguous false promise of leniency, there is no need to proceed to the second step because
the defendant’s statement is clearly involuntary. Id. If, however, the officer’s statement is
ambiguous, making it difficult for us to determine if it was truly a false promise of leniency,
we must proceed to the second step of examining the vulnerability of the defendant. Id.
Factors to be considered in determining vulnerability include: (1) the age, education, and
intelligence of the accused; (2) how long it took to obtain the statement; (3) the defendant’s
experience, if any, with the criminal justice system; and (4) the delay between the Miranda
warnings and the confession. Id.
We first look at whether the officer made an unambiguous false promise of leniency.
Appellant testified that, during the unrecorded one hour and fifteen minutes of her interview,
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Detective Whitmore made false promises in order to induce her to confess. According to
Appellant, the detective promised to keep the matter out of the press, and he assured her that
she would not go to jail and that, hopefully, it would not affect her license as a psychologist.
Detective Whitmore denied making any promise of leniency in return for her statement, but
he did acknowledge telling her that he would speak to the prosecutor. As stated earlier, any
conflict in the testimony of different witnesses is for the trial court to resolve. Grillot v. State,
supra. We defer to the superior position of the trial judge to evaluate the credibility of
witnesses who testify at a suppression hearing. Holland v. State, 365 Ark. 55, 59, 225 S.W.3d
353, 356 (2006). Based upon the record before us, we cannot say that the trial judge was
clearly erroneous in his evaluation of the credibility of the witnesses.
Even if we were to conclude that Detective Whitmore’s promise to talk to the
prosecutor was an ambiguous promise of leniency, which is contrary to our case law, see
Holland v. State, supra, we cannot say that Appellant was particularly vulnerable at that point
in time such that her free will was overborne. It is undisputed that Appellant signed an
acknowledgment and waiver of her Miranda rights. She testified that she had a doctoral
degree in psychology and considered herself to be fairly intelligent. She admitted that the
detective had reviewed her Miranda rights with her before she agreed to talk with him.
Appellant also knew that having sex with an inmate was a crime, and that if she was charged,
she could lose her license and go to jail. As an employee of the Department of Correction,
Appellant was not a total stranger to the criminal justice system. Moreover, between the time
she signed the rights form and the time she gave her statement, a period of one hour and
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fifteen minutes elapsed, which is not undue. In viewing the totality of the circumstances, we
conclude that Appellant’s confession was voluntarily, knowingly, and intelligently given.
III. Constitutional Right to Recording of Entire Interview
Appellant next urges this court to construe the due process clause in article 2, section
8 of the Arkansas Constitution to include a constitutional right to a recording of all phases of
a police interrogation leading to a confession. She concedes that no federal court has
recognized such a right under the U.S. Constitution, but points to four recent decisions by
our court construing the Arkansas Constitution to grant more rights than are granted under
the U.S. Constitution. See Jegley v. Picado, 349 Ark. 600, 80 S.W.3d 332 (2002); State v.
Sullivan, 348 Ark. 647, 74 S.W.3d 215 (2002); Box v. State, 348 Ark. 116, 71 S.W.3d 552
(2002); Griffin v. State, 347 Ark. 788, 67 S.W.3d 582 (2002).
In the instant case, however, we decline to recognize a constitutional right to
recordation under the due process clause in the Arkansas Constitution. Ark. Const. art. 2, §
8. Indeed, Appellant acknowledges this court’s prior holding in State v. Sheppard, 337 Ark.
1, 987 S.W.2d 677 (1999), that the lack of a recording does not invoke a constitutional
safeguard. Even before State v. Sheppard, we declared that no Arkansas law requires the police
to record the interrogation in its totality. Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702
(1996). As this court explained in the Misskelly case, “[w]e will consider such a factor in the
totality of the circumstances mix, but we will not invalidate a confession for that reason
alone.” Id. at 472, 915 S.W.2d at 714. In the absence of any indication that our court has
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traditionally viewed custodial interrogation requirements more rigorously than the federal
courts, we reject the expansion of constitutional rights proposed by Appellant. Polston v. State,
360 Ark. 317, 201 S.W.3d 406 (2005).
With regard to other state courts that have addressed similar arguments under their
respective state constitutions, only the Supreme Court of Alaska has recognized a right to have
the entire interview recorded under its state constitution. Stephan v. State, 711 P.2d 1156
(Alaska 1985). While many courts have noted approvingly the protection provided by a
complete recording of an interrogation, they have declined to hold that recording the entire
interrogation is required by their respective state constitutions. See Starks v. State, 594 So. 2d
187, 196 (Ala. Crim. App. 1991), cert. denied, 594 So. 2d 187 (Ala. Crim. App. 1992); State
v. Jones, 49 P.3d 273 (Ariz. 2002); People v. Holt, 937 P.2d 213 (Cal. 1997), cert. denied, 522
U.S. 1017 (1997); People v. Raibon, 843 P.2d 46 (Colo. Ct. App. 1992); State v. James, 678
A.2d 1338 (Conn. 1996); Coleman v. State, 375 S.E.2d 663 (Ga. Ct. App. 1988); State v.
Kekona, 886 P.2d 740 (Haw. 1994); State v. Rhoades, 809 P.2d 455 (Idaho 1991), cert. denied,
504 U.S. 987 (1992); People v. Everette, 543 N.E.2d 1040 (Ill. App. Ct. 1989), rev’d on other
grounds, 565 N.E.2d 1295 (Ill. 1990); Stroker v. State, 692 N.E.2d 1386 (Ind. Ct. App. 1998);
State v. Morgan, 559 N.W.2d 603 (Iowa 1997); State v. Speed, 961 P.2d 13 (Kan. 1998);
Brashars v. Commonwealth, 25 S.W.3d 58 (Ky. 2000), cert. denied, 531 U.S. 1098 (2001); State
v. Thibodeaux, 750 So. 2d 916 (La. 1999), cert. denied, 529 U.S. 1112 (2000); State v. Buzzell,
617 A.2d 1016 (Me. 1992); Baynor v. State, 736 A.2d 325 (Md. 1999); Commonwealth v. Fryar,
610 N.E.2d 903 (Mass. 1993); People v. Fike, 577 N.W.2d 903 (Mich. Ct. App. 1998), appeal
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denied, 590 N.W.2d 64 (Mich. 1999); State v. Scales, 518 N.W.2d 587 (Minn. 1994); Williams
v. State, 522 So. 2d 201 (Miss. 1988); Jimenez v. State, 775 P.2d 694 (Nev. 1989); State v.
Barnett, 789 A.2d 629 (N.H. 2001); State v. Cook, 847 A.2d 530 (N.J. 2004); People v. Martin,
741 N.Y.S.2d 763 (N.Y. App. Div. 2002), appeal denied, 778 N.E.2d 560 (N.Y. 2002); State
v. Thibodeaux, 549 S.E.2d 501 (N.C. 1995); State v. Smith, 684 N.E.2d 668 (Ohio 1997), cert.
denied, 523 U.S. 1125 (1998); Commonwealth v. Craft, 669 A.2d 394 (Pa. Super. Ct. 1995);
State v. Godsey, 60 S.W.3d 759 (Tenn. 2001); State v. James, 858 P.2d 1012 (Utah Ct. App.
1993); State v. Gorton, 548 A.2d 419 (Vt. 1988); State v. Spurgeon, 820 P.2d 960 (Wash. Ct.
App. 1991), review denied, 827 P.2d 1393 (Wash. 1992); In re Jerrell C. J., 699 N.W.2d 110
(Wis. 2005); State v. Kilmer, 439 S.E.2d 881 (W. Va. 1993); Gale v. State, 792 P.2d 570 (Wyo.
1990).
We are also aware that many states, while declining to constitutionally require the
recording of an entire interrogation, have adopted the requirement through the court’s
supervisory power or through legislation. See, e.g., D.C. Code § 5-116.01 (2006); 725 Ill.
Comp. Stat. Ann. 5/103-2.1 (West 2006); Wis. Stat. § 972.115 (2006); N.J. Crim. Prac. R.
3:17; State v. Scales, 518 N.W.2d 587; State v. Barnett, 789 A.2d 629; In re Jerrell C. J., 699
N.W.2d 110 (juveniles);
With regard to Appellant’s policy arguments, the New Jersey Supreme Court’s
decision in State v. Cook, 847 A.2d 530, contains a succinct summary of the policy arguments
for and against a recording requirement. The benefits of requiring a complete recording
include: (1) protection against admission of involuntary or invalid confessions and
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enhancement of the reliability of confessions; (2) protection for police officers from false
allegations and improved ability of the police to assess the guilt or innocence of suspects; and
(3) attainment of an objective and reviewable record that would enhance a judge or juror’s
assessment of credibility, and preservation of judicial resources by discouraging defendants
from raising “frivolous” pretrial challenges to confessions. Id. Some of the policy arguments
against a recording requirement include: (1) cost in the purchase and maintenance of
recording equipment, which would be a financial burden for some municipalities; and (2) the
potential to hamper police interrogation techniques and reduce the ability of police officers
to obtain truthful confessions. Id.
We are also aware of the differences among states that have adopted a recording
requirement. States have not been consistent in designating the portions of an interrogation
that must be recorded. For example, Minnesota requires that all custodial interrogations,
including any information about rights, waiver of those rights, and all questioning, be
recorded electronically when feasible and whenever questioning occurs at a place of detention.
State v. Scales, supra. In contrast, New Hampshire does not require a recording of the
administration of a defendant’s Miranda rights or the defendant’s subsequent waiver of those
rights, but it does require a complete recording following the waiver of a defendant’s Miranda
rights. State v. Barnett, supra.
States are also in disagreement as to what sanctions should be imposed when law
enforcement fails to record an interrogation. The Supreme Courts of Minnesota and Alaska
have both held that failure to record the complete interrogation will result in the exclusion
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of the entire interrogation, absent certain narrow exceptions. Stephen v. State, supra; State v.
Scales, supra. The Supreme Court of New Hampshire, on the other hand, has held that where
the incomplete recording of an interrogation results in the exclusion of the tape recording
itself, evidence gathered during the interrogation may still be admitted in alternative forms,
subject to the usual rules of evidence. State v. Barnett, supra.
To sum up, we conclude that the case law and secondary authority cited by Appellant
reflects little if any agreement regarding how electronic recordation should be implemented,
or whether it should be required, encouraged formally through evidentiary rules, or
encouraged through other informal means. State v. Cook, supra. In view of these questions
and many others that merit consideration, and bearing in mind the difficult task of drafting
a rule that would clearly delineate the parameters of a recording requirement, we believe that
the criminal justice system will be better served if our supervisory authority is brought to bear
on this issue. We therefore refer the practicability of adopting such a rule to the Committee
on Criminal Practice for study and consideration.
Even if we were to adopt a recording requirement today and exclude the confession
in this case, any resulting error would be harmless in light of the otherwise overwhelming
evidence of Appellant’s guilt. Officer Latasha Robinson was an eyewitness to the alleged
incident, and Dan Burns admitted the allegations. Under the harmless-error rule enunciated
in Arizona v. Fulminante, 499 U.S. 279 (1991), and adopted by this court in Riggs v. State,
supra, the remaining evidence in the instant case would be sufficient to prove beyond a
reasonable doubt that the admission of Appellant’s confession did not influence the jury’s
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verdict.
IV. Proffered Jury Instructions
Appellant argues that the trial court should have given her proffered jury instruction
directing the jury to make an independent determination of the credibility of a confession.
The State argues that AMI Criminal 2d 104 covers the proffered instruction. With regard to
our standard of review, we have stated that a party is entitled to a jury instruction when it is
a correct statement of the law and when there is some basis in the evidence to support giving
the instruction. Vidos v. State, 367 Ark. 296, 300, 239 S.W.3d 467, 476 (2006). We will not
reverse a trial court’s decision to give or reject an instruction unless the court abused its
discretion. Id.
A non-AMI Criminal instruction should be given only when the trial judge finds that
the AMI Criminal instruction does not state the law or that AMI Criminal does not contain
a needed instruction on the subject. Ventress v. State, 303 Ark. 194, 794 S.W.2d 619 (1990).
Just because an appellant’s proffered instructions contain correct statements of the law does
not mean that it was error for the trial court to refuse to give them. Leach v. State, 311 Ark.
485, 845 S.W.2d 11 (1993).
Appellant’s proffered instruction reads as follows:
The jury being the sole judges of the weight of the evidence and the credibility
of the witnesses applies to whatever weight and credibility the jury determines
should be given to a statement made by the defendant to a law enforcement
officer.
AMI Criminal 2d 104, which instructs the jury that they are the sole judge of the weight and
credibility of the witnesses, necessarily covers the subject of the weight and credibility to be
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given to a defendant’s confession. The AMI Criminal instruction accurately states the law and
sufficiently addresses the particular evidence that Appellant seeks to emphasize; thus, the trial
court did not abuse its discretion in refusing to give the requested instruction.
Appellant’s reliance upon Austin v. State, 193 Ark. 833, 103 S.W.2d 56 (1937), is
misplaced. That case was decided prior to Jackson v. Denno, 378 U.S. 368 (1964), when the
Supreme Court established the rule that the voluntariness of a defendant’s statement must first
be determined by a judge at a pretrial hearing. See Walker v. State, 253 Ark. 676, 488 S.W.2d
40 (1972). After the judge makes the determination of admissibility, it will be a matter of
argument by counsel as to the weight to be given that evidence. AMI Criminal 200 cmt.
The trial judge correctly pointed out to Appellant that she could make her argument as to the
weight and credibility of her confession in her closing argument.
Appellant next contends that AMI Criminal 2d 110 is unconstitutional under the
federal and state due-process clauses and Jackson v. Virginia, supra, in that it fails to properly
underscore the importance of the reasonable-doubt standard of proof. Specifically, Appellant
argues that the term “abiding conviction” is too general and undefined. Appellant requested
that the following sentence be added to AMI Criminal 2d 110: “you must be convinced to
[a] state of near certainty of the guilt of the accused.” The proffered instruction was denied
by the circuit court.
The State contends that AMI Criminal 2d 110 satisfies due process under the test
enunciated in Victor v. Nebraska, 511 U.S. 1 (1994). The State also points out that non-model
instructions are disfavored and should be given only if the model instructions do not correctly
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state or cover the necessary law. Once again, we will not reverse a trial court’s decision to
give or reject an instruction unless the court abused its discretion. Vidos v. State, supra.
In criminal cases, the government must prove every element of a charged offense
beyond a reasonable doubt. In re Winship, 397 U.S. 358 (1970). The beyond-a-reasonabledoubt standard of proof “plays a vital role in the American scheme of criminal procedure,”
because it operates to give “concrete substance” to the presumption of innocence to ensure
against unjust convictions, and to reduce the risk of factual error in criminal proceedings.
Jackson v. Virginia, 443 U.S. at 315 (citing In re Winship, supra). At the same time, by
impressing upon the fact-finder the need to reach a subjective state of near certitude of the
guilt of the accused, the standard of proof symbolizes the significance that our society attaches
to the criminal sanction and thus to liberty itself. Id.
While due process mandates that the standard of proof be beyond a reasonable doubt,
the U.S. Constitution neither prohibits trial courts from defining reasonable doubt nor
requires them to do so as a matter of course. Victor v. Nebraska, 511 U.S. 1. So long as the
court instructs the jury on the necessity that the defendant’s guilt be proved beyond a
reasonable doubt, the Constitution does not require that any particular form of words be used
in advising the jury of the government’s burden of proof. Id. Instead, “taken as a whole, the
instructions [must] correctly convey[ ] the concept of reasonable doubt to the jury.” Holland
v. United States, 348 U.S. 121, 140 (1954). The proper inquiry regarding the constitutionality
of a jury instruction is whether there is a reasonable likelihood that the jury understood the
instructions to allow conviction based on proof insufficient to meet the Winship standard.
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Victor v. Nebraska, supra. The language in AMI Criminal 2d 110 has been approved by the
U.S. Supreme Court in prior cases. AMI Criminal 2d 110 reads as follows:
Reasonable doubt is not a mere possible or imaginary doubt. It is a doubt that
arises from your consideration of the evidence and one that would cause a
careful person to pause and hesitate in the graver transactions of life. A juror
is satisfied beyond a reasonable doubt if after an impartial consideration of all
the evidence he has an abiding conviction of the truth of the charge.
In Victor v. Nebraska, supra, the Supreme Court overruled an objection to the phrase
“reasonable doubt is not a mere possible or imaginary doubt.” In rejecting the challenge, the
Court explained, “[a] ‘reasonable doubt,’ at a minimum, is one based upon ‘reason.’” Victor
v. Nebraska, 511 U.S. at 17 (citing Jackson v. Virginia, 443 U.S. at 317). Everything is open
to some possible or imaginary doubt, and a fanciful doubt is not a reasonable doubt. Id.
Likewise, an instruction stating that “a doubt that would cause a reasonable person to hesitate
to act” is a formulation the Court has repeatedly approved. Victor v. Nebraska, 511 U.S. at 20;
Holland v. United States, 348 U.S. at 140. The phrase “after an impartial consideration of all
the evidence” has also been approved. Victor v. Nebraska, supra.
Appellant challenges the use of the words “abiding conviction,” despite the fact that
such terminology has been specifically approved by the Supreme Court. Victor v. Nebraska,
supra; Hopt v. Utah, 120 U.S. 430 (1887). In the Victor case, the Court held that although
“moral certainty” as used in the jury instruction was ambiguous, “the reference to moral
certainty, in conjunction with the abiding conviction language, ‘impress[ed] upon the
factfinder the need to reach a subjective state of near certitude of the guilt of accused.’” Victor
v. Nebraska, 511 U.S. at 15 (quoting Jackson v. Virginia, 443 U.S. at 315). Similarly, the Court
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stated “[a]n instruction, cast in terms of an abiding conviction as to guilt, without reference
to moral certainty, correctly states the government’s burden of proof.” Id. at 14-15.
In comparing the “near certainty” language proposed by Appellant to the abidingconviction language used in AMI Criminal 2d 110, we conclude that the latter phrase requires
a higher level of conviction. As the Court explained in the Hopt case, the word “abiding”
suggests “settled and fixed,” or a conviction that may follow a careful examination and
comparison of the whole evidence. Hopt v. Utah, 120 U.S. at 439. “It is difficult to conceive
what amount of conviction would leave the mind of a juror free from a reasonable doubt, if
it be not one which is so settled and fixed as to control his action in the more weighty and
important matters relating to his own affairs.” Id. By instructing the jury that a reasonable
doubt is one that “would cause a careful person to pause and hesitate in the graver transactions
of life,” and that a juror has to have an “abiding conviction of the truth of the charge,” AMI
Criminal 2d 110 requires the same level of conviction as expressed in the jury instructions
approved in Hopt v. Utah.
In conclusion, we hold that AMI Criminal 2d 110, taken as a whole, correctly conveys
the concept of reasonable doubt to the jury. There is no reasonable likelihood that the jurors
who determined Appellant’s guilt applied the instruction in a way that violated due process
under the U.S. and Arkansas Constitutions.
Affirmed.
G LAZE, J., not participating
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