*1 essence, relationship. the trial court attempted barter with Clements for a continuance. This action on the part Granted, court is arbitrary has an unacceptable. public interest justice, Leggins prompt disposition however, it must be served in an supra, even-handed man- state, ner. . .fair to the fair to the yet defendant. Under the case, circumstances of this Clements is entitled retain Mr. Atkinson as his counsel.
This is reversed and case remanded with instructions to the trial court to proceed consistent with this opinion.
Joe BRAWLEY v. STATE of Arkansas CR 90-59
Supreme Court of Arkansas Opinion delivered October [Supplemental on Opinion Denial of Rehearing November 1991.*] *Glaze, J., concurs. *2 Sloan, & J. by: Rubens Kent Swiff, Peeples, J.
Henry Rubens, for appellant. Gen., Asst. J. Brent Bryant, Att’y by: Standridge,
Winston Gen., for Att’y appellee. Joe Brawley, Justice. The appellant, Newbern,
David of murder and sentenced life imprisonment convicted shooting Ray death of stepfather-in-law, connection shooting on May Tittle. was arrested at the scene He in an on-going evidence he had been involved 1988. The showed throughout day, and the estranged altercation with his wife were involved they threats. At 9:00 couple exchanged p.m. had a officer called to by police a scuffleat a store broken liquor up under the influence of intoxicants Brawley obviously scene. home. go that time and was told the officer Instead and waited followed his wife and son the home her parents her rifle. When she and outside in his truck with 30.06 from her car came of the house to obtain items out stepfather fired Brawley their direction. The bullet struck Mr. Tittle who fell behind the car. wife injured Brawley’s ran into the home where her mother was in the of calling process police. Brawley into broke the house with the rifle. The grabbed two women all gun, were for it when the they struggling arrived. police were Brawley gun taken into Before custody. being taken ambulance, away in an Mr. Tittle identified as his Brawley assailant. admitted firing the fatal shot in a statement given after his arrival at the shortly county jail. Some two hours administered, later blood alcohol test was and Brawley’s blood alcohol measured .11%. *3 27,1988,
On September filed a Brawley motion a requesting evaluation. He psychiatric could not make bail and had been held in custody since his arrest. granted The Court and request, the an was appointment made at the Brawley George Jackson 5, Mental Health Center for October 1988. Brawley was not taken to the appointment. A second was set for appointment 28, October 1988. Again, he was not taken to meet the appoint- ment. He was not 9,1989, taken for an evaluation until and May he was jail returned to on the same day. finding him report competent for all purposes was received the on by Court July 1989. Brawley remained incarcerated. 12, 1989,
Before his on trial September Brawley made an motion oral in chambers to charges dismiss the due ato violation of his a right to trial. speedy The motion was denied. He also asked the Court to suppress his confession on ground the that he not, intoxication, could due to his make a and knowing voluntary waiver rights. of his Both were renewed in a requests post-trial motion for new trial filed new counsel. a Following hearing the that, Trial Court held because Brawley the requested psychiatric evaluation, the entire of time between period his request receipt of the report was excludable and that he was not too intoxicated to waive rights his amake voluntary statement.
Brawley contends the Court erred in denying motion to dismiss for violation of right to a trial that the court speedy erred in finding his custodial statements admissible. We affirm conviction, the as there was no violation of the speedy trial guarantee, and the totality of the circumstances indicates that the custodial statement made. voluntarily 11(f), has been the record with our Rule
In accordance no prejudicial the Court made error to determine examined defendant.
1.
trial
Speedy
3,1988.
argues
He
that was
on
May
was arrested
entitled,
28.1(c)
28.2(a),
to be
to Ark. R. Crim. P.
pursuant
was tried
1989. Instead
by May
to trial
brought
year
of the one
excess
days
September, approximately
to trial within the
brought
as he was not
He contends
period.
28.1,
R. Crim. P.
the State had
set out Ark.
speedy
period
result of Brawley’s
any delay
the burden to show that
State,
legally justified. McConaughy
or was otherwise
conduct
before trial
(1990).
hearing
As there is no procedural issue, we to consider proceed argument that the State did not meet its burden by merely raising the after the motion for examination as an excludable period. Brawley’s argument continues that once he presented proof that missed the scheduled appointments, the Trial Court found that the not attributable to him personally, burden shifted back to the State to come forward with an The literal explanation. language 28.3(a) of Rule states simply that the period required by competency examination is ex- cluded. cites no Brawley authority for his assertion that the burden State, should shift back to the and we are not persuaded argument. his
2. Suppression statement argues the blood Brawley alcohol test administered some two statement, hours after gave and showing that his blood alcohol, contained .11% showed he was too intoxicated to waive rights voluntarily and or to intelligently make a statement. All the officers involved in his arrest and in the taking subsequent statement testified while had been Brawley drinking odor of did alcohol emanate from his person, he lucid appeared and to understand what was going on. Their testimony was unequivocal did not show signs of any intoxication, that he was completely responsive coherent, that there nowas coercion or deception involved in the obtaining of the statement.
The test for voluntariness of both the waiver and statement are essentially the same in this case. aWhen custodial statement is challenged, the State has the burden of proving by a preponderance of the evidence that the statement was voluntarily given. State, Baker v. 711 S.W.2d On we appeal make an independent determination of this issue considering the totality the circumstances and affirm the trial court’s ruling unless it is wrong. clearly Fleming *5 307, Ark. 681 S.W.2d (1984). Arizona, 390 In Miranda v. 384 U.S. 436 (1966), the Supreme Court recognized the inherently coercive nature of custodial waivers held that a suspect’s waiver of rights is valid if it only is made voluntarily, knowingly, The intelligently. voluntariness requirement is concerned any with sort of coercive or deceptive police The activity. 614 with the are concerned intelligence requirements
knowledge
“
if
of
‘totality
Only
of the accused.
of comprehension
level
both an
interrogation
reveals’
surrounding
circumstances
may a
level of comprehension
the requisite
choice and
uncoerced
been
have
rights
the Miranda
conclude
court properly
State,
(1989);
S.W.2d to remember unable interrogated to the time was prior found State’s confession. We signing or being questioned be and understood to lucid that the appellant appeared evidence that was for the Trial and concluded it rights was sufficient credibility evidence and resolve the weigh Court was sober testimony suggests here witnesses. We any say is evidence of sort duress. cannot enough. There no wrong statement. refusing suppress the Trial Court was Affirmed. J.,
Dudley, concurs. Justice, Arkansas R. Dudley, concurring. Robert H. is to be 28.1(a) P. that an incarcerated defendant provides Crim. incarceration. tried within nine months or released from (9) that an stating is no in our Rules directly There provision is entitled to be tried within one or year incarcerated person decisions, however, At our discharged least one of absolutely. (c), Rule trial within that the 28.1 suggests provision requiring bail, set “held or otherwise year lawfully one of a person as well an incarcerated Gooden liberty,” person. applies Ark. is not “at the State’s brief Although Brawley liberty,” within unless there are year concedes he must be tried one solely suggest that our excludable I raise the issue here periods. reviewing wish to consider Committee on Criminal Practice may
614-A the Rules with view toward a to suggesting change a specify within which an incarcerated period person must be tried or discharged.
SUPPLEMENTAL OPINION ON
OF
DENIAL
REHEARING
25,
NOVEMBER
Henry and Kent J. for appellant. Swift Gen., Bryant, Winston J. Brent Att’y by: Asst. Standridge, Gen., for Att’y appellee. rehearing Curiam. Per petition is denied. Justice, Glaze, concurring. agree with the court’s Tom I However, denial of appellant’s rehearing. petition appellant voices his concern that the court’s can be read to mean opinion evaluation, once a defendant a requests all obtaining in delays that evaluation are chargeable to the defend- ant for speedy purposes regardless who caused the delays. I would not a agree with such I proposition, and believe close look at the record such dispels a notion. trial,
The state had twelve months to bring the appellant but appellant tried sixteen months and nine days after his Thus, arrest and incarceration. showing the delay the state had the burden of was legally justified. Gooden v. court, In its opinion, this citing Ark. R. Crim. 28.3(a), P. excluded the entire it took for be period evaluated. appellant In so holding, the court rejected appellant’s argument that his evaluation had been through delayed no fault of that the state should have been charged period from delay two dates he was not taken to his appointments October until his evaluation was obtained in or when the May was submitted July 1989. The trial court found that the did nothing prevent the two attending scheduled appointments in October but neither did the trial court find the state however, at fault. Appellant’s position, is the period delay chargeable was still state it because had burden to show the justified. legally
Appellant’s argument assumes nothing did to delay his evaluation in this matter. I agree. cannot ignores Appellant the fact that the prosecutor, February was the one who recognized that appellant’s evaluation had delayed, been prosecutor petitioned well within the designated twelve-month
614-B court to months) private for the trial (about appoint nine In his appellant. petition, prosecutor evaluate psychiatrist specifically *7 to inability appellant the have state’s mentioned Center and W. Mental Health George Jackson evaluated the was could if action expire the trial speedy period his concern that the state would pay offered that taken. The prosecutor not expense in court, evaluation. The trial of an independent following related in the settling appeal purposes, the record hearing on the February prosecu- at the what occurred tor’s petition: it was who was responsible, why
There about colloquy And I what be done et cetera. taking long, so could to look prosecutor Mr. Swift and believe I informed out, matter, it to get straightened proceed into the it, luck, to file a motion for having any if he wasn’t that it habeas, that I would rule on promptly. continuance, granted and I at that time Then asked for a he an evaluation. There was never private the motion for order on But the case was continued apparently. filed at defense the term. request defense motions above, it me that From the is clear to the prosecutor not in an to show the state was the trial court attempt petitioned and, evaluation, doing for the delay appellant’s responsible so, further sought any he evaluation avoid actually private hand, moved for continuance on the other delay. Appellant, which was thus, further granted, cutting any off consideration The prosecutor’s strategically suspect, the chose tor’s impression petition. appellant, hearing not to further at held on the prosecu- proceed the trial with the court left petition obviously work that both state and the would appellant not, matters out. If could the trial court would they expect habeas which court would corpus file a appellant promptly petition, Instead, no trial issue
rule on. raised appellant speedy until when he filed a motion for new trial. after an
The over failure to obtain entire dispute appellant’s hearing been if February evaluation could have appellant resolved at not chosen to ask for a continuance. Appellant had i.e., charge be have it ways, cannot state with the extended both cannot expected time after missed appellant October 1988 and at the same time frustrate appointments was some state’s efforts to obtain confusion over whether evaluation. There appellant’s March continuance was until appellant’s August regardless length or but time requested did related to an evaluation simply nothing after the appellant, While February hearing. it is true the state has the burden to bring a defendant trial within the twelve-month period Rule required under defendant cannot benefit from actions he takes that frustrate the state’s designed efforts are view, to achieve a trial for the speedy appellant. my appellant’s action at the February hearing just did that and he then chose to lie behind the log while time accrued twelve- past required month period. charged should be with all the time from the transpired February hearing until the evaluation was submitted on July 1989. alone, excluded,
This time when brings trial date appellant’s within the twelve months. While required agree I with the that sufficient majority Rule 28.3 excludable time exists this case under
(a), also I believe in light of actions and appellant’s inactions, such excluded time is warranted under Rule 28.3(h), which covers other periods good cause. reasons,
For the foregoing I concur with the court’s decision denying appellant’s request rehearing.
Curtis Bernard EASTER STATE of Arkansas CR 91-130 Court of
Supreme Arkansas delivered Opinion October