Mayfield v. State
736 S.W.2d 12
Ark.
1987
Check Treatment

*1 therefore prohibited were convictions that multiple only (l)(e) applies Subsection . . . . (l)(e) subsection course continuing aas is defined when offense . . conduct. section provides: to the Commentary original

The convictions multiple (1) (e) prohibits Subsection statute violates a conduct that course of uninterrupted would find application It defining continuing offense. 41-2405) (§ as nonsupport for such offenses prosecutions 3006). (§§ prostitution or promoting 41-3004— offense, as continuing is not robbery Aggravated Britt v. statute. See to the Commentary discussed in the facts in As (1977). perceive 549 S.W.2d 84 Here appellant 41-105(l)(e) this case application. § conduct for for different offenses and charged with two separate He was argument. in the previous each offense as out pointed which crime continuous with several counts for the same charged to. what is directed 41-105(1 )(e) is § Affirmed. of Arkansas v. STATE MAYFIELD Eugene

Michael 736 S.W.2d CR 87-60 Court of Arkansas 28, 1987 delivered September Opinion *2 for appellant. B. Brady, Wm. Gen., Clark,

Steve Att’y by: Asst. Att’y Knight, William F. Gen., for appellee. Newbern, Justice. The Michael

David appellant, Eugene was Mayfield, aggravated convicted of He contends the robbery. while a statement he made failing

trial court erred in to suppress given he was failed rights warning because the police custody even if he could inform him he could have an attorney present was he was agree not afford one. We that the forth in Miranda with the set insufficient to comply requirements Arizona, thus we must reverse the 384 U.S. 436 further contention disagree conviction. We with the appellant’s instructed as to the minimum jury that the was improperly sentence with which he We discuss the latter charged. point direction in the event there is a retrial. give investigating received in

Acting upon information he crime, not the Jones of the Little subject of this Detective appeal, *3 Rock Police the of robbery arrested the for Department appellant read the Arby’s store. At Jones testified he police headquarters rights rights his from “the Rock Police appellant standard Little form.” The form used was introduced into evidence at the trial. It in appellant’s provides, pertinent part:

“I have been advised that I am a in suspect a[n] aggravated right of that I have the robbery-theft property, silent, right to use the that I have the to remain telephone, that I the to with an either right attorney, talk Court, giving retained me or the before by appointed by statement, when and to have answer- my attorney present ing any questions.” form, having signed signed

After the the rights appellant further statement that he waived made rights voluntarily his and a statement. His having statement was a detailed confession to in the with which he was then participated robbery charged. trial, In a before the hearing the moved to appellant suppress the confession on the that the did not with ground warning comply Arizona, the Miranda v. He stated in requirements supra. renewed objection the at the trial when the confession was introduced. The against state no evidence the presented appellant other than the confession. The was convicted and appellant sentenced to for ten which the court had imprisonment years instructed the to be the minimum sentence for the offense jury charged.

1. The warning v. 621 S.W.2d 690 In Thomerson a Pulaski Circuit County which was also from appeal Court, precisely the advice the the apparently same as in the case before now. The words from the quoted us in rights form in that are same as those here. As warning case the case, this on challenged Thomerson his conviction the basis he had not if were been informed of his counsel even he right or We the indigent could not afford an affirmed attorney. U.S., conviction, Tasby (8th 1971), Cir. citing 451 F.2d 394 the that the proposition language warning of deviate may from that used in case long Court the Miranda as it “does negate the over-all of warning.” effectiveness We then discussed the familiar of the circumstances” “totality test for determining the voluntariness of the confession and in the of process that discussion noted it that would be better for

police to inform an accused without cost. counsel Our in the Thomerson case not at all about whether opinion spoke the effectiveness of warning had indeed been subverted except in the context the voluntariness of the confession. discussing

Our error confusing Thomerson case in lay threshold of a with requirement that a requirement confession, given after a warning, be made voluntarily upon waiver of the rights which the accused has earlier been *4 Estelle, v. apprised. Harryman 1980), 616 F.2d 870 Cir. (5th an accused was asked a before question any warning whatever had been he given, and an gave incriminating answer. It was argued that the initial question by more of an exclamation the police officer than a and thus in the question, the circumstances interrogation was not the kind of police questioning Supreme Court had intended to in Miranda case. In control response, the court said:

This Miranda. Prior to argument misunderstands Miranda, Court attempted protect accused from improper police questioning by holding inadmissible statements that to have been invol appeared untary light of their circum totality surrounding stances, including the characteristics the accused See Bus details of the Schneckloth v. interrogation.

220 2041, 2047,

tamonte, 218, 226, 36 S.Ct. 93 412 U.S. York, 360 U.S. 315, v. New Spano (1973); L.Ed.2d 854 1206, 1202, (1959) 3 L.Ed.2d 1265 n.2, 321 79 S.Ct. here, we to follow such cases). approach 28 Were (citing was volun statement Harryman’s well find that might admitted. and therefore tary properly Miranda, of the totality Court found the inBut that in- Recognizing approach inadequate. circumstances tendencies, coercive inherently custody questioning rigid procedural in its a set of place the Court adopted followed, and until these rules have been rules. It held that of and waived been informed adequately an accused has If he is questioned, he not be rights, questioned. may cannot be presented statements he makes in any response at of its at trial. 384 U.S. proof as prosecution part Tucker, 417 Michigan v. See 444-91, 86 S.Ct. at 1612-36. 2357, 2363, 433, 443-44, 41 L.Ed.2d 182 S.Ct. U.S. 94 (1974). Miranda rules and the inway of the

The rigidity of and was conceived applied which are to they greatest the decision’s continues to be recognized Louisiana, 469, 100 v. 444 U.S. strength. E.g., Tague Arizona, Miranda 652, (1980); S.Ct. 62 L.Ed.2d 622 also Fare v. Michael S.Ct. at 1630. See 479, 86 384 U.S. at C., 1310, 1314, 3, 5, S.Ct. 58 L.Ed.2d U.S. J., (1978) (calling on (Rehnquist, stay) application of Miranda its virtue”). “core The decision’s rigidity on the guidance accept has afforded clear rigidity police able manner of an accused. It has allowed questioning factual determinations that courts to avoid the intractable often the former of the circumstances totality approach entailed. When a law enforcement officer asks question Mi accused, the benefit of an accused and the without randa’s answers, of the circum safeguards, totality answer is simply stances is irrelevant. The accused’s case in inadmissible at trial as of the part prosecution’s chief. F.2d 870 at [616 874] *5 determina- The conviction was affirmed on the basis of the court’s overwhelming to other tion that the error was harmless due

221 evidence of a case us guilt beyond reasonable doubt. In the before now, only against evidence his confession. was

While we continue to use the circum “totality confession, stances” to v. test the voluntariness of a see Smith State, 162, 729 .State, (1987) 292 Ark. S.W.2d 5 and Stone v 204, Ark. (1986), S.W.2d 102 we will not look beyond warning given to ascertain if the accused knew what rights his were when the confession was made. That is the specific mandate of the Court in the Miranda case and in v. Supreme Prysock 453 U.S. California, (1981) well.

In Trotter v. 719 S.W.2d 268 we took too far the admonition we had in the Thomerson case. There we said a warning which had told the accused he was entitled to counsel if even he could not afford one was insufficient

because it did not he could at no say attorney have absolutely cost to him. We affirmed the conviction because there was evidence that the gone sheriff had beyond reading rights of the form we found to be inadequate had in fact informed the accused he was entitled to counsel without In Smith charge. State, supra, we took back our strong language from the Trotter case, said, “If, and we a approved warning which cannot you afford a one will be lawyer, appointed you, any before if questioning, you wish.” We noted that three of the four parts of the Miranda case in which opinion Court be, discusses what the warning must the language having to do with “if indigency or he cannot one” afford was used. The clear that, implication while we that an accused require person told that if he is indigent or cannot afford a the court will lawyer one, appoint used, there are no “magic words” which have to be such as without to “absolutely cost you.”

We doubt whatever at that the heart of the Supreme Court’s is its opinion concern that the indigent accused in police be informed that he custody just right as much to representation an as a attorney person who can afford one. The Supreme Court said in Miranda case: fully order to apprise interrogated of the person then,

extent of rights under this system it is necessary warn him not only that he has the consult with attorney, but also if indigent he is will be lawyer *6 this additional warn- to him. Without

appointed represent with counsel to consult ing right the admonition of the he that can meaning only be as would often understood funds to he has one or has the lawyer consult with a if would be counsel warning right obtain one. The of a to to the convey terms that would hollow if not couched in to interroga- most often indigent subjected person —the has a to have counsel knowledge right he too tion—the that at U.S. present. 473] [436 he has He that the prior any questioning must be warned to he and that cannot right attorney, to the of an presence if to prior for him attorney an one will be appointed afford any 479, emphasis if he U.S. at so desires. questioning [384 supplied.] the Court noted Prysock, supra, Supreme California while not mimic the the warning language

that the need decision, the accused the get Miranda it must across to effectively if the accused to have retained counsel or counsel right appointed the Prysock cannot In the case attorney. afford an warning which held the Court reversed a California decision had not was because it did follow given accused insufficient The Miranda decision. court used in the precisely language said, “. . . itself that no incanta- Miranda indicated talismanic tion was U.S. at (453 to its strictures. . . .” required satisfy 359), but considering required whether the information accused, Miranda the court said: case that in this to fully conveyed It is clear case police He was told rights his Miranda. respondent required by during to have to and right lawyer present his prior have a at and his to interrogation, right lawyer appointed if he could not one. warnings conveyed cost afford These he to have a right appointed to respondent lawyer if interrogation. not one to and prior during could afford U.S. at emphasis added.] [453 us did not warning given The in the case before lawyer to the that he could have a free convey fact To make some reference to the charge. warning do that must of the indigency person warned in connection with inform- being him ing that an will attorney for him. While we are appointed holding are specific words it would required, suggest be very simple being that the warned say person has the attorney present that he either may *7 or, retain one, one himself if he cannot afford have one appointed by the court.

2. The instruction The trial court jury instructed the that the minimum sentence for aggravated robbery was ten years imprisonment. The appellant contends that was error because the minimum sentence for that is offense six The contention of years. is based Ark. upon Stat. Ann. 41-2102(3)(a) (Supp. § 1985) which says, “Upon pleading or found guilty being guilty the first time of aggravated awith such robbery deadly weapon, person shall be for no imprisoned (6) years.” less than six The instruction, and the here, state’s is position based on subsection (2) of that statute which says, Y “Aggravated is a class robbery felony.” Ark. Stat. Ann. 1985) 41-901 (Supp. that provides § defendant convicted of Y a class felony shall be to not sentenced less than ten and years not more than years, or life. forty

We agree with the state’s on this position Section 2102 point. of Act 280 of 1975made aggravated a class A robbery with felony no further specification 1979, as to In general punishment. assembly Act passed 1118 amending 2102 of Act 280 of 1975 to §

provide:

(2) below, as in Except provided (3) subsection aggravated is robbery a Class A felony. (3)

Subsection then provided specific which are penalties now contained in Ark. Stat. Ann. 41-2102(3), the first of which § provides:

(a) Upon pleading or found guilty being guilty the first time aggravated of with robbery deadly such weapon, person shall imprisoned for not less than six (6) years. . . . 1981, 620, the general of assembly adopted Act 13§

which provided:

224 1975, 2102 of Act of

Subsection of Section (2) 41-2102(2), is hereby Statute same Arkansas being is a robbery “(2) Aggravated as follows: amended to read class Y felony.” Y and felony

The thus a class made offense general assembly Act 280 of 1975 of (3) abolished the subsection exception conflict brought 1118 of into amended Act 1979. This is codified. (2) (3) of statute as it presently subsections a class Y (2) aggravated robbery felony Subsection makes to the subsequent without was enacted exception. (2) Subsection of Act 620 of 1981 subsection Section 18 provisions (3). Act are “All laws conflict with this provided, laws and parts Act, thus was in that (2) Subsection hereby repealed.” § say (3) might simply subsection been While repealed. will be considered conflicting repealed later of two acts see former, Price S.W.2d 506 *8 need on in view the (1985), rely repealer that doctrine clause.

Reversed. Hays, JJ., and dissent.

Hickman Hays, Justice, If this were dissenting. Steele misled in this wording the Miranda case and left in as to to be by lawyer, doubt represented I he claim. might agree with the But makes such majority. Thomerson Ark. S.W.2d 690 on an identical set same made argument now was considered facts, rejected. I believe we should adhere our unanimously recent precedent.