*1 122
the trial court must consider the meritorious defense before deny-
the motion to set aside the
ing
default
This
judgment.
argument
Canvas,
has
been addressed
already
Maple
v. Rogers,
Inc.
Leaf
171,
(1992).
311 Ark.
Appellant prejudice and that it has a appellees meritorious defense. Appellant however must satisfy the court that a threshold rea- first son exists denying judgment. reason it pre- for default not sents is The failure to answer the convincing. com- ., due seems more . . plaint carelessness a result not to business. attending emphasis.] [Our reiterate, To we are not the view renouncing that favored, default are not judgments that on the merits judgments so, are Even preferred. issue involves the sound discretion Chalmers, of the trial court 284 [Cammack 680 (1984)], S.W.2d 689 and where the record is bereft of explana tion failure to to a we are hard respond complaint pressed hold an abuse of discretion occurred.
Affirmed.
Michael CLAY v. STATE of Arkansas CR 93-1262 S.W.2d Court of Arkansas
Supreme delivered Opinion October [Rehearing denied October 1994.*] Glaze, Corbin, JJ., * Hayes, grant rehearing. would *4 Harris, Terri L. for appellant. Holt, Gen., G. Asst. Att’y Kent by: Bryant, Att’y
Winston Gen., for appellee. stands convicted Justice. Michael Newbern, David life which he was sentenced to imprisonment murder for
capital a he made to police He contends confession without parole. have been incarcerated should suppressed while he was authorities him. We disagree admitted into evidence against and not intel- of his Miranda was not rights that his waiver his argument invol- and that his statement was executed and knowingly ligently however, must, and remand the case We reverse given. untarily as it was should have been suppressed because the statement Crim. in violation of Ark. R. an unnecessary delay, after 8.1, the time he was taken before Mr. arrest and Clay’s P. between for rever- raises an additional point a officer. judicial evidence that he which we find no error. He claims escaped sal in We have been admitted. discuss should not custody from waiver of and voluntariness well as the ones on point the Trial Court retrial. for the benefit of upon confession 1990, 14, Wallace was found body Glynda On It was later Macedonia Road Gilmore. in an area alongside a had died as the result of gunshot determined that Ms. Wallace 1990, Wallace’s the burned shell of Ms. wound. On August in rice located field. automobile was received an The Crittenden Sheriff’s County Department vic- had been seen driving that Michael Clay anonymous tip invited Thursday, August tim’s car. On in Crittenden for County question- to the Sheriff’s Department initialed each of his theft of the car. Mr. Clay ing concerning were read to him and signed on a form as they Miranda rights oral, He made an the form at the bottom. exculpatory not detained. 23, Mr. picked up Later in the evening August ini- He and returned to the Sheriff’s Department questioning. made tialed and another form signed subsequently recorded, statement in which he claimed rather convoluted tape *5 uncle the fact that the victim’s car from his despite he bought Mr. for theft title to the car. was arrested Clay his uncle had no on 24. custody Friday, August He from receiving. escaped He rearrested. again Mr. was Clay August On Saturday, further and was questioned form rights initialed and signed Ms. Wal- and the murder of the vehicle about possession in statement made another recorded tape That afternoon he lace. Ms. Wallace he in the car with he claimed that was which were to get He thought they going Robert Turner. his friend Wallace. He said when Robert shot Ms. was car but surprised car. later him the Robert gave and was held in the Crittenden County jail
Mr. Clay 26. He initialed Sunday evening, August again questioned recorded form and another gave tape another yet signed he had to say stopped in which he changed story statement him give a flat tire and she had agreed Ms. Wallace change help let him out of the car He said she declined to a ride to town. off,” “went the shooting him his gun implying was hitting when car, his friend He he took her but that was was accidental. said was arrested for murder. who burned the car. Mr. Clay Robert with Officer John who Mickey Strayhorn, along Officer in testified that on Mon- Murray investigation, participated from the Sheriff’s Mr. took officers day, August Clay depart- 28, Mr. Clay ment where On “things Tuesday, August happened.” examination where he taken to Jonesboro for a polygraph Charles Beall of the Arkansas State a statement to Officer gave statement, mur- In this Mr. confessed that alone Clay Police. dered Wallace and burned her car. Prior to the writ- signing Ms. ten to Officer Beall on Mr. version of initialed and another signed rights form. trial, the Trial At the outset of Court was informed the made to introduce statements Mr. proposed prosecution held and a outside Clay, hearing presence jury determine their Officer testified that he did admissibility. Murray time) (19 Mr. at that or that he had been a not know Clay’s age at the where had education student school finished high special testified, 12th He as did Officer that no Strayhorn, grade. were used to obtain the statements or the writ- coercive measures Mr. of his which Officer ten acknowledgments by “indicated he understood.” said Murray about the taking Officer was asked Murray *6 128 rear- officer. He testified that after
before judicial 26th, he remained in the Saturday, rested on August custody 27th, 28th, he the was taken to Jonesboro and on which day he made the statement had killed Ms. Wallace to admitting get her car. He remained in all custody day Wednesday 29th He have was taken to court that said would day. normally taken a arrested weekend for a “bond during hearing” person which would have been 27. Monday, August following He did not do so in this case because he said he “was instructed Hale the next Prosecutor James to continue to court by Deputy date evidence this case.” involving
Defense counsel moved to last two of cus- suppress todial statements made Mr. on the basis their of invol- untariness and the fact that were due obtained to an unnec- they before a after essary delay bringing officer judicial arrest. The in limine defense also moved the State prohibit from evidence Mr. 23 using Clay’s from the escape Crittenden County jail.
1. the statements Suppression of a. Voluntariness and knowledge clear, it is not of Mr. lead Although parts Clay’s arguments that he us to conclude contends both that his waivers of the right remain were silent to counsel not voluntarily, knowingly, as well as that his were intelligently given statements invol- in the were untary they sense coerced force or promises. weAs out in v. 831 S.W.2d pointed Mauppin 309 (1992), there are two issues the waiver of separate regarding Miranda rights: if the of the circumstances
“Only ‘totality surround- reveals both an uncoerced choice and ing interrogation’ level of a court requisite comprehension may properly that the Miranda have conclude been waived.” Moran Burbine, (1986) 475 U.S. at 421 Fare v. (citing C., (1979)). 442 U.S. Michael “totality the circumstances” review mandates into appellate inquiry education, an evaluation of “age, experience, background, and into whether he intelligence, has capacity him, understand the the nature of his Fifth warnings given those waiving and the consequences Amendment rights, Thus, at the total- a court must look Fare at 725. rights.” that a if the State proved the circumstances to see ity *7 waive level to had the of comprehension defendant requisite Fifth and Sixth Amendment rights. a criminal defen of the of validity Consideration and the to coun right waiver the to remain silent dant’s of right be divided into an giving may sel prior inculpatory State, 314 Ark. 862 S.W.2d two See Bryant components. waiver, of the (1990). The first is the voluntariness component choice, made a free and it concerns whether the accused has We uncoerced the to waive his discussed that rights. police, in the case above. second involves Mauppin quoted component whether the defendant made the waiver and intelli knowingly waiver, and the then focuses on if the gently, inquiry determining case, as we said in the made with full “a aware Mauppin ness of both the nature of the abandoned and the right con being the decision to abandon it.” sequences issue, In addition to two of the waiver we aspects statement, must decide if confession or inculpatory given occurred, after a waiver of rights has was itself made. voluntarily weAs use similar standards to review whether very both a waiver was valid and whether a statement was volun subsequent we tarily, sometimes do not take the time to out dis point State, But the tinction. distinction is there. See Shaw v.
274,
The circumstances in this were case these. As noted above, Mr. was 19 and had Clay years age graduated from school where he in high was enrolled education classes. special the time he was first on Thursday, August From questioned the written statement to Officer Beall on Tuesday, until gave he was six times. interrogated Except August released, when Mr. and then picked questioned, up theft arrested for again prior being by receiving, questioned he was once a each he was in interrogated just day day custody. There evidence that he threatened in is no or punished any on the way days question.
There is whether the inter- conflicting testimony concerning officers advised Mr. of his constitu- rogating adequately tional At the testified that rights. hearing, suppression was told to statement of form “if he did not sign understand his that his was needed in order rights,” signature the Sheriff that the had him. to show officers talked to On the other hand, Officers testified read Murray Strayhorn they *8 form, from the and that he initialed each rights directly right read him. was to of the None sessions were for extended questioning periods time, food, of and there is no evidence Mr. Clay deprived or other necessities. The were sleep, repeated interrogations obvi- due, in to the in the ously inconsistencies two statements part, and the given Thursday, August one given Saturday, August circumstances, 25. Given the totality of we conclude there was no coercion used to obtain the statements.
Nor can we the State failed to bear its say burden of there showing voluntary, knowing, intelligent waiver Mr. that he rights. Clay’s the statement of testimony signed forms because he was told rights indicated signature only the officers had talked to him or that he did not understand must also, be considered on matter of waiver as must his testimony (the officer) that one of the officers told him he awas lawyer, that he was the lawyer to whom Mr. was entitled. implying All of these Mr. were denied allegations by the officers. by
The recorded between Mr. and the officers colloquy statements, detail, who took his which we have read in reveals which have led the nothing might officers to conclude Mr. Clay was too slow or unintelligent understand which had been to him. explained
On when Mr. statement to Clay gave Police, Officer Beall of the State he made Arkansas Officer Beall aware that he could not read write or well. statement he exe cuted himself to Officer Beall writ ultimately inculpating ten down Officer Beall and Mr. The Officer signed by Clay. testified the words wrote were those after spoken he had been informed of his there is rights. Again, nothing coerced, that the show statement was and the State’s evidence that, was sufficient to show despite Clay’s age, proba I.Q., ble low he was informed of his adequately under stood them.
b. Delay and Rule 8.1 case in which a nearly every criminal defendant has sought of a suppression confession or other inculpatory officers while in police we are custody confronted with con- match,” flicting testimony, sometimes called a “swearing the defendant saying or she was coerced or did not under- stand and the ance, there police saying was no coercion an appear- least,
at on the understanding of the part defendant. As we out in pointed Duncan v. 726 S.W.2d (1987), LaFave, W. citing Criminal (1984), Procedure 6.3§ the reason rule requiring authorities to assure a prompt before a appearance of a judge under person arrest is that the i.e., other safeguards, the voluntariness and knowing intel- determinations, ligence can be illusory. We quote following again:
Since “the use
the
of
tactics is . . .
third-degree
difficult to
there
prove because
is
the
always word of the police against
accused;
the word of the
and the
of
testi-
prestige
police
mony
carries the
usually
the
day,”
which
safeguards upon
the traditional confessions rules rest have
been called
aptly
The main
“illusory.”
thrust of the McNabb-Mallory rule
States,
v. United
The adopted provide pro is Rule subjected interrogation tection to arrested persons of Criminal It 8.1 the Arkansas Rules Procedure. provides: of who is not released citation or other by “An arrested person be taken a officer judicial lawful manner shall before without unnecessary delay.” an gave only
The Duncan case us not to dis- opportunity the the rule but to indicate to cuss reason for police prose- we would it. We a test. The apply adopted cutors how three-part must have been the evidence must be delay dicial, unnecessary, preju- the evidence must be related to the reasonably delay.
i. Unnecessary
The
before a
was unneces-
delay
taking
judge
There is no
but that he could have been
sary.
question
presented
27. The
that did
Monday,
only
on
reason
not occur was
the order of the
to “continue to the next court
deputy prosecutor
date for evidence
this case.” The State
noth-
involving
presented
to show that Mr.
could not have been taken
a
ing
before
27.
judge Monday, August
In
County Riverside
(1991), the United States Court dealt with the Supreme Fourth Amendment of a cause to be held requirement probable hearing a for arrested without warrant. It held that if person such hours, does not occur within 48 the hearing burden shifts to the the to show existence of a faith government good or emergency other extraordinary circumstances. the course of discussing here, that matter which is similar the very one presented Court said: are Supreme unreasonable “Examples delay delays for additional evidence purpose gathering to justify arrest, a motivated ill will delay against arrested individ ual or sake.” delay delay’s case, was,
In the Duncan one of the reasons for reversal “The record shows the and that delay purposeful prose- cutor made a deliberate decision Duncan in to hold detention and ignore in the prompt appearance requirement.” case now before us was not only unnecessary, was apparently deliberate we same sort as encountered in the Duncan case which should be countenanced. not
ii. Prejudicial on Sunday, August Mr. Clay gave the statement “went off’ while he was struggling his alleged gun statement, it was but That was a very prejudicial Ms. Wallace. him before a judi unnecessary delay taking given prior state We considered whether subsequent cial officer. have error, thus not have harmless prejudicial, ment been might It harmless In the was not error. in view of earlier statement. one on given August on unlike the given August statement 26, which all the elements the offense with Mr. admitted is, during committed a homicide ultimately charged, (a)(1) of a Ark. Code Ann. 5-10-101 robbery. (Repl. the course § 1993). not more The statement could have been prejudicial.
Hi. Related delay We between the statement can see no relationship Mr. and the in tak Clay August subsequent delay a That be used him him before statement ing judge. may against is, however, retrial. statement a different August upon matter.
It is clear that each time Mr. a statement to author- Clay gave 23 he August ities after initial ones of took further step himself in the murder of Ms. Wallace. The toward implicating of the Mur- Officer deputy prosecutor, reported that he should before a offi- delay taking judicial ray, case,” evidence cer “for this makes that the involving appear was ordered with the that Mr. do would expectation did, i.e., what he admit to murder. ultimately capital that, however, that, Short of we can with assurance if say had been taken before officer on judicial August officer have Ark. R. P. 8.2 would followed Crim. judicial which to assure that an accused has counsel requires judge if he cannot afford one and not waive does choose to appointed to counsel defend him. been Had counsel right appointed, it most have unlikely is statement made on would forthcoming. been were, doubt,
The facts of Duncan case far no more egre- than the now before Duncan was held “incom- ones us. gious *11 134 least, for
municado” three He was at days. verbally, undoubtedly abused officers. He asked “do y’all lawyers,” but the appoint continued. He was interrogation interrogated long of periods short, time. In there evidence that he was was to what subjected LaFave and Professors Kamisar would call the “third degree.” evidence, however, All of that went more to the issue of the vol- of the untariness statement Duncan than to the ultimately gave effect We of the said: delay.
The State
urges
confession was
under the
voluntary
circumstances,
of the
totality
but we
not
do
regard
in
a reasonable and fair
approach
appropriate
seeking
res-
said,
of the
olution
of this
we
rule. As
have
application
assurance of
is
voluntariness not the
Of
only concern.
equal
is the mechanism of the first
importance
appearance that
that the
guarantees
accused’s
constitutional
will be
“Indeed,
protected
implemented.
rights afforded
[the
under Rule
are basic and
fundamental
which
8.1]
our
state
federal constitutions secure
every
to
arrestee.”
718,
Bolden
(1978).
The three and one-half Mr. Duncan day was period was, held taken prior being judicial before officer dura tion, 25, similar to the between period Saturday, August August in this case. When Wednesday, we realize that the the Duncan point of case not the fact that Duncan was was sub abuse, him, but that of what jected much includ happened ing his would not have had he self-inculpation, occurred been taken a judicial before officer without unnecessary we delay, have no difficulty the same conclusion here as we reaching reached there. The statement given by Tuesday, on August related to the violation of Rule 8.1. As the the evidence unnecessary, was prej udicial, and the of it was related obtaining to the delay, reversible error not to exclude August statement.
2. Evidence escape contends that testimony concerning escape 23, 1990, been have should on county jail from the rel- had no testimony independent He asserts that the excluded. value unfair prej- meet versus did not the probative evance and Rules of Evi- the Arkansas test of Rule balancing udice no merit. dence. The has argument is discre evidence relevancy
A ruling *12 abused unless the Trial Court will not be reversed and tionary State, 44 Ark. 783 S.W.2d Walker v. 301 its discretion. determining Court has discretion in (1990). The Trial also against evidence in its value probative relevance of gauging State, Ark. S.W.2d 156 Gunter 857 unfair v. prejudice. denied, (1993). (1993), USLW 3319 cert. trial, there was that Mr. testimony Clay escaped
At
with
23.
receiving
Although
theft
being charged
after
unclear,
that the testi
is
seems
assert
argument
because
value
the murder
concerning
charge
lacks
mony
probative
theft
at
he was
flight
only charged
the time of his
from jail,
State
the theft
receiving charge
The
by receiving.
argues
An
incarceration
escape
was linked to
murder
from
charge.
is
as circumstantial evidence of
Centeno
guilt.
admissible
(1976). We
should
agree
Reversed and remanded. Corbin, JJ., Glaze, dissent.
Hays, view, Justice, dissenting. my majority Glaze, Tom himself, The reflects that Clay, is record wrong. clearly opinion And from delayed by escaping jail. initially arraignment rearrested, Clay hours he was found and within after twenty-four Wallace, that he had and had Glynda admitted shot him evidence needed to convict shown the authorities enough words, if murder. In other even had been arraigned capital he had knowingly within a hour forty-eight period, already needed not all the cause voluntarily given police probable they him, well. Nonethe- arrest and him but to convict charge only less, court reverses this case based needlessly upon the majority a confession which does no more than confirm the evidence the view, had. From the police already state’s the only purpose Clay’s final confession served was his concession that no one had assisted him in killing Glynda Wallace.
First, I note the trial court’s when it ruled following findings that all of Clay’s statements were admissible: was not a case of a
[T]his continuous team tag inter- viewing through day night until finally broke and made an I admission. assume the end results there must be here,
something I inculpatory assume. But the defendant abused, mistreated, was not in any way no force or coer- cion, threats or intimidation either the defendant upon or members of his was used in family these interviews even were though they over several . . . days were not unduly or prolonged long nature.
The record thoroughly the trial supports court’s findings. chronology of events follows: *13 -
Tues., 14, victim, Aug. Wallace, 1990 Glynda was found dead. -
Thurs., 23, 1990, Aug. at 1:10 p.m. interviewed and released. -
Thurs., 23, 1990, Aug. at 7:20 p.m. Clay arrested for theft by receiving victim’s car. state- Clay gave ment his Uncle Andrew sold him car and Glynda’s Andrew said that purportedly Robert Turner had title. - Fri., 24, Aug. 1990 Clay from escapes jail. -
Sat., 25, found, Aug. is rearrested and gives statement at 3:10 a p.m., Robert implicating Turner who said stole car and Glynda’s shot her. He his acknowledged at crime presence scene. - Sun., 26, 1990, Aug. at 5:10 State p.m. charged Clay with murder capital after he gave statement admitting he had ride, asked Glynda Wallace a she had refused, so a Clay pulled she gun; him a ride gave car, and when he departed went gun off. He mentioned Robert Turner came appeared, to the car and did not he He said road. down gravel Wallace kicked car. Glynda’s who burned know - where to site authorities Mon., takes Aug. found. burned purse car had been - 28, 1990, Tues., Clay gives 10:20 a.m. at Aug. no one else Wallace and Glynda that he shot
relating
car
Glynda’s
where he took
He
involved.
stated
gun.
threw
away
where he
burn it and
events,
caused
initially
clear Clay
it is
foregoing
From
from jail prevented
His escape
in his arraignment.
the delay
on Sat-
after his recapture
until
him arraigned
from having
state
date,
volun-
second
gave
On this
1990.
urday,
different,
Glyn-
on his involvement
bearing
account
but
tary,
a third
Sunday,
gave
The next day,
vehicle and death.
da’s
account,
Wallace.
he shot Glynda
time he admitted
but this
26th
that Clay’s August
the record shows
A fair
reading
statements)
causally
were not
(and earlier
28th statements
or
actions
or that the police
in his
delay
arraignment
related to any
that delay.
contributed to
(1987),
In Duncan not confession should the rule that a defendant’s we adopted evidence unless that confession be excluded from automatically Duncan court adopted delay. was related to Specifically, (2) the (1) unnecessary, must be test three-part rea- (3) the evidence must be be evidence must prejudicial, Duncan, this sonably delay. (My emphasis). related to the defendant ini- existed because held a causal connection court statements, held him *14 but after police only exculpatory tially gave detention, he incrimi- in incommunicado three and a half days retarded, Also, had asked Duncan was mildly himself. nated made to which the officers if they lawyers authorities appointed had a waiver evidence showed Duncan signed no no response, form. of it a far from Duncan. From beginning,
This case is cry theft by to the that existed tying is undisputed ample proof car; but he thereby pre- Wallace’s Glynda escaped, receiving — arrest for after his day any arraignment Friday venting theft. When Clay was rearrested on Saturday, immediately Robert Turner as the one who implicated Glynda, shot but also himself, well, his at implicated by acknowledging presence the crime. the next admitted that he had By Sunday, day, seen on her and Glynda, pulled shot her. gun subsequently
From the time was rearrested and in on Sat- custody urday, he signing forms and stories telling that impli- himself, cated in varying degrees, murder. Unlike Glynda’s Duncan, in the record here Clay’s shows and numerous escape voluntary statements served to his show involvement and in guilt statement, murder. final Glynda’s 28th, Clay’s August on Tuesday, confirmed merely his earlier Sunday statement conced- shot ing having His final 28th Glynda. August — merely disclosed he acted alone fact that the had police already determined by other independent investigation.
Today,
opinion
majority
effectively adopts
automatic
that,
rule
if a defendant is not
within
arraigned
forty-eight hours
arrest,
from his
no statements
the defendant
given by
that
during
can be admitted at trial.
period
That is not Arkansas law. Nor is
under
required
Court decision in
River-
Supreme
County of
side McLaughlin,
(1991),
Hays JJ., join this dissent. Corbin,