Davis v. StateDavis v. State
Lead Opinion
Appellant Danny Ray Davis was convicted of robbing the First National Bank of Fort Smith. The jury found that he was a habitual offender, having been convicted of eight previous felonies, and recommended a thirty-five year prison sentence and a $10,000 fine. We affirm.
The pertinent facts are that appellant started drinking heavily on December 3,1980. During the morning and early afternoon of the 4th he continued to drink in several Fort Smith bars. He then went to a drive-in window of the bank and handed a note to the teller through a slide-out drawer. The note demanded either $500 or $5,000 and the teller gave him seven or eight ten-dollar bills and he departed. The teller and a parking lot attendant described appellant. In addition, a jacket matching the description of one which appellant had been wearing in the bars was found in the main bank building. Early the next morning Noel Harvey, a detective who knew appellant and his family, went to appellant’s apartment. Appellant invited him in, offered him a cup of coffee and began to answer questions. Appellant admits that he was given a valid Miranda warning at home as well as after he was taken to the police station. At first, appellant said that if he robbed the bank he did not remember it but later he gave a confession which was admitted into evidence over his objection. He now makes a two-fold argument that the trial court erred in failing to suppress the confession because, one, he was arrested at his residence without a warrant in violation of the doctrine announced in Payton v. New York,
Payton, supra, holds that the Fourth Amendment prohibits the police from making a warrantless and non-consensual entry into a suspect’s home in order to make a routine felony arrest. Here, there was no forcible entry into appellant’s home. Instead, there was a consensual entry of the type that is not barred by Payton. State v. Filiatreau,
The second prong of appellant’s suppression argument is one which, over the years, we have had to decide on a case-by-case basis by looking at the totality of the circumstances. The applicable law is simple. If a police official makes a false promise which misleads a prisoner, and the prisoner gives a confession because of that false promise, then the confession has not been voluntarily, knowingly and intelligently made. In determining whether there has been a misleading promise of reward we look at the totality of the circumstances. The totality is subdivided into two main components, first, the statement of the officer and second, the vulnerability of the defendant. Because these two factors create such a multitude of variable facts, it has been impossible for us to draw bright lines of substantive distinction.
The procedural rules are clear. The State bears the burden of proving by a preponderance of the evidence the voluntariness of an in-custodial confession,
In determining the totality of the circumstances we first look at the statement of the officer. Some statements are so clearly promises of rewards that we do not find it necessary to look past the statement to decide the case. Examples are the case where a deputy prosecuting attorney told the prisoner who faced a possible death sentence that a confession “wouldnotresultin more than 21 years’ incarceration.” The prisoner confessed and received a life sentence. Freeman v. State,
On the other hand, similar statements have been held to be promises of reward when the prisoner is vulnerable to some innuendo. “I’ll help you all I can” was the deputy prosecutor’s statement but the fact of vulnerability which led us to suppress the confession was that the prisoner requested an attorney and he was furnished the deputy prosecutor who took the statement. Shelton v. State, supra. The same “I’ll help you if I can” coupled with prisoner vulnerability caused us to suppress the confession in Tatum v. State, supra, where the prisoner was the first of three persons arrested. While he was a habitual offender and probably knew his rights, the police did not know the names of his accomplices. In reliance on “I’ll help you if I can” he gave their names and a statement. The accomplices were then allowed to plead guilty on negotiated pleas and the accomplices and the statement were used against him for conviction. Tatum v. State, supra.
In the case before us the appellant was 40 years of age with a ninth grade education, was not questioned at length, admits that he was read his rights and, most importantly, stated he understood them. He was no stranger to the criminal justice system, having been previusly convicted of eight felonies and having served time in Oklahoma. While appearing to be “hung over,” he was not physically ill. The State’s evidence was that he was lucid, understood his rights and did not rely on any promise. It was for the trial court to weigh the evidence and resolve the credibility of the witnesses. Wright v. State, supra. We hold that the trial court’s ruling that the confession was voluntarily and knowingly given was not clearly against the preponderance of the evidence.
Appellant next contends that the court erred in allowing into evidence the testimony of Earl Collins, a latent fingerprint specialist with the Federal Bureau of Investigation, because there was a missing link in the chain of custody of the fingerprint card. Sergeant Arthur Langston of Fort Smith testified that he signed the fingerprint card, packaged it and mailed it, by certified mail, to the Federal Bureau of Investigation, Washington, D.C., attention Fraudulent Document Examiner and Latent Fingerprint Section. There some unknown person opened the evidence package and delivered the fingerprint card to Collins for examination. The chain is complete from that time. Obviously there is one missing link in the chain of evidence, that is, the person who opened the package at the Federal Bureau of Investigation offices in Washington, D.C. There is little likelihood there has been any tampering with the exhibit and the trial court did not abuse its discretion in admitting the evidence. In establishing a chain of custody prior to the introduction of evidence, it is not necessary to eliminate every conceivable possibility that the evidence has been tampered with; it is only necessary that the trial judge be satisfied that the evidence is genuine and, with reasonable probability, it has not been tampered with. Baughman v. State,
After the jury returned a verdict of guilty the trial proceeded to the sentencing phase and the court permitted the State to introduce into evidence photocopies of the judgment and sentence of appellant’s prior convictions in the State of Oklahoma. These records were part of the “pen packet” from the Oklahoma Department of Correction and were certified by the proper Oklahoma authority. Appellant contends the court committed error in admitting the photocopies of the prior convictions, because, although they recite that he had an attorney, they do not contain the name of his attorney. This argument is without merit and was settled in Clem & Gilbert v. State,
Finally, the appellant contends that the judgment is excessive. The sentence is within the range of sentences for a defendant convicted of a class B felony who has four or more previous convictions.
Affirmed.
Dissenting Opinion
dissenting. I respectfully disagree with the view that this confession was not induced in the hope of gaining leniency. Detective Harvey’s testimony provides all the support necessary: “Knowing Danny the way I did, I told him that I didn’t think it would be hard on him if he did make a statement. Yes, sir, I did make that promise to him. I told him that considering his record there might be a possibility [of probation].” (My emphasis.) While Detective Harvey’s testimony seems forthright enough, we can be sure he offered no less than he admits — which is surely enough to render this confession as coerced, not by intimidation but by enticement. Either way, the result is the same. See Tatum v. State,
The corollary illustrates the wisdom of the rule: the officer’s promised leniency, and appellant’s misplaced hopes of leniency, were answered with a thirty-five year prison sentence for what can be aptly characterized as a strong-arm extortion of $80.00 by a drunken appellant.