James Theral METCALF v. STATE of Arkansas
CR 84-87
Supreme Court of Arkansas
December 17, 1984
681 S.W.2d 344
In the present case the trial court followed precedent, or so he thought, and disallowed stacking. Now he is reversed. I will not hazard a guess as to which way we will hold next. The policies here in question contained another clause which limited uninsured motorist protection to one policy limit “regardless of the number of automobiles to which this policy applies.” The policies here at issue are clearly in accord with Arkansas law and plainly limit coverage to one limit per person regardless of the number of policies available to each vehicle. I agree with the trial court.
Steve Clark, Att‘y Gen., by: Velda P. Wеst, Asst. Att‘y Gen., for appellee.
GEORGE ROSE SMITH, Justice. On March 23, 1983, at 6:55 a.m., the Plainview fire department was called to a fire at Horn‘s grocery, which was also the residence of Samuel, Mabel, and John Horn. At the scene the firemen learned that the three Horns were still inside the burning building. In extinguishing the fire the firemen found the bodies of the
At a hearing on a motion to suppress an in-custody statement given by Metcalf, the weight of the testimony showed that when Metcalf was arrested on the night of March 23 he asked for a lawyer, but nоne was provided. The next morning he was taken from his cell for questioning. An officer testified that when Metcalf was again reminded of his rights he started talking “a mile a minute” even though an officer tried to stop him. A tape recorder was turned on and took the rest of his statement, which was introduced at the trial.
The trial judge, in ruling that the statement was admissible, recognized the difficulty: “I do want to state this: This man did request a lawyer and . . . I have some serious problems with it.” The judge concluded, however, that Metcalf had waived his rights when he was reminded of them and kept talking.
The judge‘s ruling was wrong. When a person in custody indicates that he wants a lawyer, under the Miranda rule the interrogation must cease. Moore v. State, 261 Ark. 274, 551 S.W.2d 185 (1977); Davis v. State, 243 Ark. 157, 419 S.W.2d 125 (1967). It is true that the accused person may change his mind and initiate further contact with the officers, but the impetus must come from the accused, not from the officers. Oregon v. Bradshaw, ___ U.S. ___, 103 S. Ct. 2830 (1983); Edwards v. Arizona, 451 U.S. 477 (1981); Scroggins v. State, 276 Ark. 177, 633 S.W.2d 33 (1982). Here Metcalf was admittedly taken from his cеll for questioning. He should not have been put in that position without a lawyer being present; so his supposed willingness to make an uncounseled statement is immaterial.
Since a new trial is necessary, we mention the other four
Fourth, while in jail awaiting trial Metcalf wrote a letter to his wife, urging her and other witnesses to commit perjury in several respects at the trial. Metcalf put the lettеr in an unsealed envelope and asked a fellow prisoner who was confined for only 10 days, to smuggle it to Metcalf‘s wife. The inmate, however, turned the letter over to the sheriff, and it was introduced in evidence by the State.
It is argued, first, that the letter was inadmissible, because in entrusting it to the other inmate Metcalf had an expectation of privacy and of freedom from an unreasonable search. We have held, however, that jail officials may examine an unsealed letter written by an inmate. Sumlin v. State, 266 Ark. 709, 587 S.W.2d 571 (1979). Further, we agree with a California decision upholding the admissibility of a letter entrusted by the writer to a fellow prisoner and turned over to the sheriff. People v. Hunt, 133 Cal. App. 3d 543, 184 Cal. Rptr. 197 (1982). There thе court said: “The general rule is that an inmate at a jail has no right to privacy. . . . Lack of privacy is a built-in aspect of imprisonment, with censorship and control of communications to and from a jail inherent in its administrаtion. Such authority is necessary to protect against escape.”
Second, counsel argues that the letter was inadmissible as being a confidential communication to Metcalf‘s wife. An oral communicatiоn between spouses, however, is not
The State‘s motion for an award of costs for a supplemental аbstract is denied. The additional material goes largely to the sufficiency of the State‘s proof, a matter not questioned by the appellant.
Reversed and remanded.
HUBBELL, C.J., and HICKMAN and HAYS, JJ., dissent.
WEBB HUBBELL, Chief Justice, dissenting. I respectfully disagree with my colleagues’ reversаl of this case. I disagree with the majority‘s statement that the weight of the testimony showed that when Metcalf was arrested on the night of March 23 he asked for a lawyer, but none was provided. On March 23, 1983, appellant was arrested at 8:00 p.m. At 9:01 p.m. James Metcalf signed a standard statement of rights form which included his acknowledgment that he understood he had a right to remain silent, that he had a right to consult an attorney, and that he had the right to stop any quеstioning at any time. In fact, appellant said he did not want to talk that night, and no further questioning was even attempted.
Appellant testified that he asked Jim Pickens, an honorary deputy sheriff, for an attorney the night of his arrest. Jim Pickens testified that appellant asked if he would be able to get an attorney, and Pickens said, “Yes, I‘m sure you will.” Neither appellant nor Pickens pinpointed the time this conversation took place. Appellant also failed to establish what authority this “honorary deputy sheriff” has to bind the state. Appellant also testified that he asked two other officers for an attorney. The officers both testified that no such request was mаde.
At 9:15 the next morning, the appellant was brought in for questioning. All three officers present testified that appellant did not request either a phone call or an attorney.
The facts in this case warrant a finding of waiver. Appеllant was found guilty of the savage murder of three people. The evidence of appellant‘s guilt was substantial. There is, however, absolutely no evidence that appellant‘s statement was not freely and vоluntarily given. While in custody, and after twice being advised of his rights to remain silent and to have counsel, appellant gave a voluntary statement. Appellant had not been languishing in jail for days. There is no assertion, and no еvidence, that appellant had been starved, beaten, threatened, coerced, enticed, or mistreated in any way. Appellant was arrested at 8:00 p.m., was given notice of his constitutional rights, and was allоwed to remain silent. The next morning, after again being reminded of his rights, he freely gave a statement. There is no evidence that he acted without full awareness of his constitutional rights. Indeed, upon questioning by the police, аppellant repeatedly responded that he understood his rights. I believe appellant waived his right to counsel. A waiver is an intentional relinquishment of a known right or privilege. Johnson v. Zerbst, 304 U.S. 458, 464 (1938).
I believe these facts warrant something mоre than just an automatic imposition of the exclusionary rule. I recognize that the majority is operating from what it believes to be a long line of precedent and mandate from the United States Supreme Court, but I believe that precedent is eroding. See Nix v. Williams, 104 S. Ct. 2501 (1984). It is time we balanced the scales of justice in reviewing cases where there are important competing interests. In balancing we must be careful that we do not oрen the floodgates to the introduction of illegally seized evidence. Such a result would be inherently inimical to the rationales traditionally invoked to justify the exclusionary rule — deterrence of police miscоnduct and preservation of judicial integrity. We must
Thе exclusionary rule is in no sense a personal constitutional right, but a judicially conceived remedial device designed to safeguard and effectuate guaranteed legal rights. Stone v. Powell, 428 U.S. 465 (1976). Involuntary and coerced admissions are suppressed because of the inherent unreliability of a confession wrung from an unwilling suspect by threats, brutality, or other coercion. Schneckloth v. Bustamonte, 412 U.S. 218 (1973). We all agree on society‘s abhorrence to the use of involuntary confessions. Linkletter v. Walker, 381 U.S. 618, 638 (1965). But use of appellant‘s disclosure carries no risk whatsoever of unreliability. No dangers are posed to individual dignity or free will since there is not an issue of coercion or threats.
The consequenсe of the majority‘s decision is extremely serious. Why? Apparently the answer is that the majority believes that the law enforcement officers acted in a way which involves some risk to society and that such conduct should be deterred. The officers’ conduct did not and was not likely to jeopardize the fairness of appellant‘s trial or in any way risk the conviction of an innocent man — the risk against which the Sixth Amendment guarantee of assistance of counsel is designed to protect. Powell v. Alabama, 287 U.S. 45 (1932); Johnson v. Zerbst, 304 U.S. 458 (1938).
I would not automatically impose the exclusionary rule but would adopt a balancing test. Where, as here, there is no egregious conduct on the part of thе law enforcement officers, no evidence that the statement was anything less than voluntary, and the other evidence against the appellant is so substantial that there is no risk of a conviction of an innocent man, I would hold that the introduction of the statement is not reversible error.
I respectfully dissent.
HAYS, J., joins in this dissent.