Osburn v. State

Thus, , accurately reflected the law. de- proffered that his in-

spite contention

structions were “more inclusive” and “a

more clear statement of the law on the issues,”

various the trial court did not err refusing them to the jury.3 submit record in this case has been re-

112The

viewed for other reversible error as re- 3(i) (2009),

quired by Sup.Ct. Ark. R. 4—

and none been has found.

Affirmed.

2009 Ark. 390 Ray OSBURN, Appellant,

Kenneth Arkansas, Appellee.

STATE of

No. CR 08-1146.

Supreme Court of Arkansas.

June 2009.

Rehearing Sept. Denied 2009. 3. The trial proffered court stated that Adams’s seven- found that some of the instructions issues, pages proffered legal teen appeared incorrectly instructions Adams stated legal principles correctly legal to be statements of taken from the instructions that did reflect legal principles duplicated "case law or head or some AMI in- Benca, Wyatt W. and Patrick J.

James Rock, appellant. Little for McDaniel, Gen., Att’y by: Debo- Dustin Gore, Gen., Att’y ap- rah Nolan Ass’t pellee. DANIELSON, E. Justice.

PAUL | Appellant Ray ap- Kenneth Osburn mur- peals capital from his convictions for kidnapping der and and his sentences life, imprisonment parole life without and He on respectively. points asserts three appeal, specifically, that the circuit court (1) by failing suppress two state- erred: police, ments he made to which he claims rights violated his under the Fifth and 2, §§ Amendments Article 8 and Sixth and (2) Constitution; 10 of the Arkansas testimony admitting regarding an incident twenty-seven years prior that occurred pursuant to Arkansas Rules of Evidence (3) 404(b); granting 403 and in not his allegation for new trial motion based on an juror misconduct. and re- We reverse mand Osburn’s convictions and sentence. challenge Because does not sufficiency of the support evidence to his | ^convictions, only briefly we will recite the facts here general and will set forth specific points more facts to the relevant See, appeal, they e.g., on as are discussed. Davis v. 367 Ark. 240 S.W.3d 27, 2006, August On the car of seventeen-year-old Casey Crowder was along Highway found side of Dumas, body Casey’s Arkansas. clothed discovered, County was later in Desha “forty-three along September canal” on zip-tie neck. with a black around her the course of into During investigation death, be- disappearance her voluntarily person came a interest. He by in- presented himself for an interview 4, 2006, vestigators September on and con- statements admissible. Osburn further claims that any sented to searches of both his home and waiver of his Miranda rights intimidation, was the Sep- truck. Osburn was later arrested on result of coer- cion, 28, 2006, deception, promises separate leniency tember and three state- by investigators. He asserts that day, ments taken from him on that these were errors rendered his final statement “fruit against one of which used evidence as of the poisonous tree.” and, him by jury, at trial. He was tried stated, already as Osburn was convicted of Regarding right-to-counsel Osburn’s murder, kidnapping capital and he was claim, responds the State that Osburn imprisonment pa- sentenced to life without clearly unequivocally initiated contact appeals. role and life. He now police prior to the statements and |4were that the statements made voluntari- I. Statements to Police ly. The State asserts that none of the investigators’ statements made to Osburn For initial point appeal, his on Os- during interrogations constituted challenges burn the circuit court’s denial threats, but they to the extent that could suppress of his motion to two statements threats, be construed as his statements rights that he claims were violative of his product were not the of coercion. With under the Fifth and Sixth Amendments respect to Osburn’s claims regarding Constitution, the United States as well as promises leniency, the State maintains 2, §§ Article 8 and 10 of the Arkansas demonstrate, that the record does not nor Specifically, Constitution.1 Osburn dis assert, does Osburn specifically any putes the circuit court’s finding that promises such induced slightly or influ- |safter counsel, requested Osburn he initi enced his statements. ated contact with investigators sepa two rate voluntarily times and waived his The facts surrounding Osburn’s state- rights, thereby rendering separate 4, 2006, the two September ments are these. On 10, challenges admissibility guaranteeing 1. Osburn right of his tion as the same See, statements under both the Fifth and Sixth conferred the Sixth Amendment. Amendment; however, long-standing State, 197, e.g., Beyer "[t]he 331 Ark. 962 right (1998); State, rule is that the Sixth Amendment to S.W.2d 751 Jones v. 314 Ark. 383, denied, counsel does not attach until 'the initiation of (1993), 862 S.W.2d 273 cert. adversary judicial proceedings— criminal 1237, 2743, 512 U.S. 114 S.Ct. 129 L.Ed.2d by way charge, preliminary whether of formal (1994); State, 596, 863 Clements v. 306 Ark. indictment, information, hearing, arraign Likewise, (1991). 817 S.W.2d 194 Morriss, ment.’” United States v. 531 F.3d 2, 8, court has observed that Article section 591, (8th Cir.2008) (quoting Kirby 593 v. Illi equivalent” is "our state constitutional nois, 682, 689, 1877, 406 U.S. 92 S.Ct. 32 State, the Fifth Amendment. Clark v. 256 (1972) (plurality L.Ed.2d 411 opinion); Unit 658, 659, 812, (1974). 509 S.W.2d 814 Ark. Additionally, Edelmann, 791, (8th ed States v. 458 F.3d 803 frequently this court has relied Cir.2006)). At the time Osburn invoked his Supreme on the Court's decisions in deter- counsel, right merely he had been arrested mining right scope to counsel “adversary judicial proceed and no criminal See, during interrogation. e.g., custodial reason, ings” had been initiated. For that State, 111, Riggs v. 339 Ark. 3 S.W.3d 305 arguments solely address his under the Fifth State, (1999); 491, Esmeyer v. 325 Ark. 930 Amendment. State, (1996); S.W.2d 302 Bowen v. 322 483, (1995), respect With Ark. 911 S.W.2d 555 cert. de to Osburn’s claims under the nied, 1861, Constitution, previ- Arkansas 517 U.S. 116 S.Ct. 134 this court has (1996). ously observed: L.Ed.2d 960 [Tjhis 343, 347-48, consistently court has Olive v. viewed the Ark. provided by to counsel Article sec- S.W.3d interview”). Agents Again, 4:45 the Southeast 09.28.06 himself at presented attempted to obtain Center and Boshears Enforcement Newton Law Arkansas Osburn, and, (SEALEC) according had heard that he and stated from confession speak wanted to investigators Newton, various tactics Agent used He was sub- his truck. him and examine attempt techniques in an investigative Agent by Special interviewed sequently the tran- While “change his demeanor.” Agent David Special Rick Newton interview recording of the script and the State Police at the Arkansas Chastain Osburn asked the point that at one reveal (hereinafter, 2:55 “the 09.04.06 p.m. 2:55 lawyer, the interview to call his agents interview”). was not audio The interview Nonetheless, upon a subse- continued.2 recorded, recorded via but was or video counsel, the by Osburn for quent request During by Agent taken Chastain. make and was not his decision to that such audibly was recorded and the interview explained He then that he would ask. (hereinafter, inter- “the 09.04.06 11:15 place, including take process that would view”). repeatedly attempted agents booking, followed ar- transport and confession from information or a to obtain | that Os- Osburn, any Boshears testified raignment. to no avail. Osburn Bdenied family and that Casey’s disappearance in asked to see his again involvement burn eventually that he wanted would death and stated Osburn that he Boshears assured request, Boshears, that get lawyer. Despite time, according to ask. At that however, continued. At the the interview “in a mess.” stated that he was Osburn interview, was Osburn conclusion prayer, Boshears testi- suggesting After not arrested. him pray him to for fied that Osburn asked that he had responded that Boshears however, 28, 2006, an ar- September On time, Boshears he would. At that Osburn, for rest warrant was issued emotional, testified, his de- Osburn became custody. According to he was taken into to see changed, requested and he meanor the me- in an effort to avoid investigators, discussion re- daughter. After a brief his SEALEC, was at the Osburn dia stationed Osburn, faith, ac- Boshears asked garding on the outbuilding taken to a metal located findings, if he to the circuit court’s cording near Dumas property then-sheriff-elect’s (hereinafter, “keep talking,” to which Osburn “the wanted to to be interviewed questioned that he had Osburn During hearing, mitted to him suppression 2. both lawyer. for a after Osburn had asked Agent Boshears testified that Newton and request they for an did not hear Osburn’s first recollection Agent Boshears did record his 3.We attorney in the 09.28.06 4:45 interview. notes, investigatory in the conversation his note, however, then-Sergeant Michael suppression hear- which were admitted at Daley Agent Newton ad- testified that Todd purposes by the defense. ing impeachment replied right order, that he wanted to “do the circuit court later entered its grant- thing and talk.” Boshears then informed in ing part and denying part Osburn’s Agent Newton that “requested Osburn to motion suppress. continue our conversation.” order, In its the circuit court made spe- Accordingly, agents again inter- cific findings respect to each of Os- (hereinafter, viewed Osburn “the 09.28.06 burn’s interviews. Regarding the 09.04.06 interview”). 7:25 While the 09.28.06 4:45 interview, 2:55 the circuit court found that audiotaped, agents interview was proof did not show that Osburn was a this videotaped interview. Osburn’s Mi- suspect at the time of the 09.04.06 2:55 and, rights randa form was reviewed at interview and that proof showed that time, Osburn confessed to his involve- Osburn was not in custody. It further ment. rejected argument Osburn’s that his Osburn was then taken to the SEALEC. ¡¡Miranda rights were violated with re- there, briefly While he visited with his interview, spect to this finding that it was

17mother, Afterward, daughter, and son. clear that Osburn was not in custody when approached then-Sheriff-Elect Jim given. the statement was Snyder, Osburn’s friend and former em- respect With to the ployer, who 09.04.06 11:15 inter- standing at the door of view, that, the circuit court during the room which Osburn had met with found it, family.. Snyder part Sheriff at the latter process pro- testified “the suppression hearing that denied agents cedure used became accusa- girl” he “did that to that and told him tory.” It further found that Osburn “un- that he “watching “was outside” himself equivocally invoked his 5th Amendment Snyder do it.” Sheriff [himself] testified right to counsel” on page seventy-eight that he then went to get Agents Boshears and that had the to do so at “[h]e and Newton and told them what Osburn time.” The circuit court then concluded said, had to which they responded “we that: go better back and talk to him.” The By time the the defendant invoked his room, three of them returned to the where case, right to counsel in this the investi

Agent Boshears asked Osburn if he want- gators sufficiently were focused on him did, ed to talk. Osburn indicated he and a suspect right as a that his to counsel had rights form completed. During was the invoked, right attached. Once that is (hereinafter, interview “the 09.28.06 8:55 questioning Any must cease. statement interview”), again Osburn confessed to his 4-5, of September the defendant on involvement. 2006,[4]after the invocation of the right trial, Prior to Osburn suppress moved to suppressed. to counsel is statements, each of his that arguing they respect to the despite were taken his With voluntariness of this requests for counsel statement, and that the circuit court found that knowingly, voluntarily, he did not and intelligently rights. portions “prior waive his The those of this statement to responded, held, counsel, State hearing right and a the invocation of the to ..., at the conclusion of which the circuit court which are otherwise admissible did took the motion require giving rights under advisement. The the of Miranda transcript 4. The September of the inter- 09.04.06 11:15 1:10 a.m. on 2006. view reveals that the interview concluded at statement, sup- made and Osburris motion to portion and that of denied prior to the is denied.” it. suppress press the motion to next the The circuit court addressed Finally, to the respect with 09.28.06 8:55 Noting that this 09.28.06 4:45 interview. interview, found the circuit court that Os- by the admonish- preceded interview was burn the conversation with then- initiated rights “of a completion ment and Miranda Snyder and that his Sheriff-Elect state- waiver,” the circuit court signed and a knowingly, intelligently, ments were found the interview occurred after that reasons, voluntarily For these made. the murder, Casey’s “so it Osburris arrest circuit court denied Osburris motion to question.” It then was custodial without this suppress respect to statement. sup- found the statement be that 19should issue here are the two state At showing made pressed, in that the State no court ments that the circuit refused the had initiated contact with suppress, the interview and [ 7:25 the police leading up Specif- statement. m09.28.06 In reviewing the 09.28.06 8:55 interview.6 ically, court found the circuit that the offi- circuit to suppress court’s refusal a con cers the statement failed to even who took fession, independent makes an this court acknowledge prior Osburris of his exercise upon totality determination based right Fifth Amendment counsel and See Grillot v. circumstances. proceeded if it had not as occurred.5 Ark. 107 S.W.3d The interview, As 09.28.06 7:25 to the ruling only circuit will be reversed court’s the videotape circuit court reviewed preponderance if it clearly against is appeared interview and found that Osburn Any id. conflict evidence. See calm and relaxed. It then found that Os- testimony of different witnesses for the po- burn further had initiated contact with Here, circuit id. court to resolve. See invoking right lice after to counsel: challenges the circuit court’s refus that the court finds defendant did statements, suppress claiming al to particular statement evince a will- that his to counsel was violated ingness for generalized or desire discus- voluntary, statements were not investigation, sion about when he but coerced. Boshears, said to “I am in a mess.” The further conversation be- Right A. Violation Counsel from tween the defendant Boshears eventually led point the defen- The Fifth Amendment right to stating dant he wanted to talk further during counsel custodial attaches interro right about the situation and “do the Arizona, gation. See Edwards v. 451 U.S. thing.” (1981). 101 68 L.Ed.2d 378 S.Ct. an right It further found that When accused has invoked to statement was his knowingly, intelligently, voluntarily present during have counsel custodial in- addition, trial, 5. In the circuit claim appeal court noted that him at he cannot now on "again in interview Osburn this renewed his prejudice stemming from that statement. We right pages exercise of his to counsel at disagree. raised a Osburn has fruit-of-the- and 53.” poisonous-tree argument, in which he claims that the the "tree” was "fruit” of admitted urges 6. The State that while chal- Osburn reason, erroneously. For that find it nec- statements, lenges only two one used was "tree,” essary despite to examine the the fact trial, against him at and submits that because against that it him. was not used against one of the statements was not used terrogation, right a valid waiver of that asked pray Boshears to for him. Bosh- by showing only would, cannot be established ears stated he already. and had responded police-initiated emotional, he to further Osburn became stating he interrogation even if he has custodial been wanted to see his daughter. Instead, rights.

advised of his See id. an Boshears him spend advised to some accused, having expressed his desire to prayer time in jail. while he was in counsel, with the police only through deal explained he did not feel worthy, subject is not to further interrogation by and had not been doing well in life. the authorities until counsel has been Boshears asked he keep wanted to if him, made available unless talking. Osburn said he wanted to do initiates himself further commu- Itaccused right thing and talk. Boshears then nication, exchanges, or conversations with opened Newton, the door and called tell- police. See id. While the accused ing him Osburn wanted to continue their may initiate further contact with the po- conversation. Boshears[’s] notes re- lice, impetus must come from the ac- garding this conversation were admitted cused, not the police. See by the impeachment Defendant for pur- Metcalf 284 Ark. S.W.2d Be- poses as Defendant’s Exhibit A. The undisputed cause it is that Osburn invoked Court does find it be right his to counsel at the conclusion of the | ^substantially different from his testi- interview, 09.28.064:45 question initial- mony.

ly presented is whether Osburn initiated testimony Newton’s was that about five further communication with the investiga- ended, minutes after the initial interview tors. and he to arrange went transportation jail, for Osburn to the Boshears came

With respect to whether Osburn out and told him Osburn wanted to “initiated” for purposes of Edwards v. Ari speak again and get it off his chest. zona, supra, found, the circuit court He then went in and pertinent tape part: interview shows Newton reviewing the testimony from the State at the rights Miranda form previ- and waiver suppression hearing regarding ously executed Osburn. Osburn ac- statement came from Rick Newton and knowledges rights. Michael Boshears. testi- Boshearsfs] mony The Court has after Osburn invoked reviewed interview in interview, question. prior appears counsel calm and re- tape only thing Rick Newton turned the laxed. The which him recorder makes appear any off and went outside the uncomfortable at interview room time dur- arrange ing this interview transported appears Osburn to be to be the vid- eo camera. Dumas Jail. Boshears was alone in the room with Osburn 5-10 minutes. argues The defendant this state- requested of Boshears that he suppressed ment should be because of be family allowed to see his before he previous right the invocation of the to jail. went to responded Boshears that by counsel the defendant. states he would check with Newton to see if his argues that the [sic] defendant initiated request could be met. this further with police, conversation the Osburn then stated “I’m in waiving a mess.” thus his fifth right amendment responded Arizona, Boshears that he relies on his to counsel under v. Edwards 477, 1880, faith in such circumstances. Osburn 101 451 U.S. S.Ct. 68 L.Ed.2d 780 right Jackson, “do the the situation and (1981). about Michigan v. See

378 thing.” 1404, 625, L.Ed.2d 89 106 S.Ct. 475 U.S. added.) Ark. (1986), 367 v. (Emphasis and Vidos

631 467], 2006 Ark. Lexis S.W.3d 296 [239 Bradshaw, 462 v. U.S. Oregon In 2830, 1039, 77 L.Ed.2d 103 S.Ct. decision, (1983), four plurality a which was Jackson, supra, a v. Michigan Under ques respondent’s the held that justices further contact “initiates” defendant tion, “Well, to me going happen what is willingness, or by “evincing police “ now?,” conversation ‘initiated’ further discussion about generalized desire for of that ordinary dictionary sense the In the case of Owens investigation.” the 2830. at 103 S.Ct. word.” 462 U.S. (8th Cir.2002), Bowersox, 290 F.3d 960 v. four, Rehnquist, writing for the Justice defendant, the court focused cited the inquiry that while a “bare further observed element, stating impetus the on this officer by police or a by either a defendant defendant, therein came from any to ‘initiate’ conver should not be held mother, police told the his who through respondent’s dialogue,”7 or sation them, not from to talk to he wanted and a de willingness “evinced a question which coached police suggestion about the generalized discussion sire for the defen- prompting into the defendant 1045-46, 103 Id. at S.Ct. investigation.”8 dant to talk to them. 2830. defendant did in The court finds that the clear from Bradshaw is What is evince a will- particular statement initiate, his in order for an accused that generalized discus- ingness or desire for indicate some or must inquiry 114statement he investigation, when sion about the investi willingness to discuss desire or Boshears, in a “I am Agent said to Here, Os- the interaction between gation. further conversation be- mess.” The began with Os- Agent burn and Boshears and Boshears from tween the defendant see inquiry as to whether he could burn’s being jail. the defen- taken to eventually family before point that led Boshears, telling after to talk further stating dant he wanted dissenting justices, interpreted request Edwards inquiries as a four Specifically, 7. "such Arizona, request supra, tele- water or a to use a as follows: a drink of they phone ... are so routine that cannot be spoke "initi- Court in Edwards When this part fairly represent on the said to a desire ating] with the further communication” generalized open up a more an accused dialogue with police "reopen[ing] directly indirectly relating to the discussion authorities,” obviously mind it had in 1045, 103 S.Ct. investigation.” 462 U.S. at dialogue about the sub- communication or 2830. investigation. ject criminal matter was de- The rule announced Edwards Powell, concurring, observed 8. Justice any interrogation signed sub- to ensure ambigu- opinions in "reflect the Bradshaw right to sequent an invocation of the language, particu- ity of the Edwards of some ” accused, instance of the counsel be at the larly meaning of ‘initiation.’ on J., at (Powell, not the authorities. 451 U.S. con- U.S. at 103 S.Ct. 2830 Thus, question or state- at S.Ct. 1885. curring). agreed He then with Justice Rehn- interro- which does not invite further ment quist’s conclusion that "the facts and circum- stances, attorney present cannot gation before an entirety, clearly in their when viewed Edwards. qualify as "initiation” under to coun- establish a valid waiver of J., (Marshall, 1053-54, (Powell, J., 1050, 103 S.Ct. 2830 Id. at sel.” Id. at 103 S.Ct. 2830 Marshall, original). dissenting) (emphasis leading concurring). Justice decision, talk, according thing that was not his to his and the statement at issue testimony, to resulted. began own to describe Os- happen

burn what was about to and what examining totality After of the cir expect. Again, Osburn could Osburn cumstances, must, as we we simply cannot and, family, his again, Agent asked to see say that Osburn initiated further contact Boshears told him that he would ask. contemplated by as Bradshaw. Absolutely no inquiry or statement made point simply It was at that that Osburn any willingness evinced on part his to made the statement that he “in was reengage or reinitiate a conversation relat mess,” which the State claims constituted ing investigation; to the to the contrary, an police. initiation of contact with the inquiries his and statements indicated a However, we think it is clear that such a desire to family see his and expressed his variety statement could have a of mean- despair. Nor did Osburris statement that ings, by Agent as evidenced Boshears’s he was “in a mess” initiate. As the Su testimony that he too had found himself stated, preme Court of Illinois “To ascribe “in a mess”: significance such to this limited [state explained And I to during [Osburn] virtually any ment] would render remark have, times that I I would call defendant, by a no matter how offhand or times, myself in tough a mess or I ex- superficial, susceptible of interpretation as plained that I rely heavily my on faith an invitation to discuss his in depth. case pray great deal. To do so would perversion amount to a the rule fashioned Edwards and articu Here, Osburris simply statement did not fully lated more in Bradshaw.” People v. any indicate part reengage desire on his to Olivera, 382, 390, 164 Ill.2d 207 Ill.Dec. in a investigation,” discussion “the as 647 N.E.2d Indeed, required by Bradshaw. the con- |1fiIndeed, versation investigation, did not turn to the only statement made instead, but according Agent to any Boshears’s Osburn that indicated willingness to testimony, it turned to prayer, investigation Osburn be- discuss the after his invoca- emotional, again came and he to right asked see tion of the to counsel came after daughter. his The two began speak Agent to Boshears asked him if “he wanted faith, which, Here, about according keep talking.” to Bosh- counsel was not ears, Osburn Osburn, stated that he did not feel made available to nor did he initi- worthy keep ate; instead, “to the faith” or his “relation- it appears totality from the Then, Boshears, ship with Agent Christ.” the circumstances that the 09.28.06 7:25 findings, the circuit court’s interview was the result of a violation of disaccording “asked if keep wanted to talk- Accordingly, [Osburn] Edwards. we hold that be- ing.” initiate, It only at that time that Os- cause Osburn did not his Fifth burn stated that he right wanted to do the Amendment counsel was violated 9. While clearly Boshears testified that Osburn circuit court found that "Boshears talking asked him if he wanted to continue keep talking.” asked if [Osburn] wanted to Osburn, Agent report Boshears’s of the inves- Credibility determinations are for the circuit tigation again stated that after in- determine, court to see Dunn v. quired whether he could see his mother and and, (2007), Ark. 264 S.W.3d 504 daughter, again Boshears "told him say finding cannot that the circuit court’s on try we would to accommodate him and that if clearly against preponder- this issue was more, he wanted to talk we had time and ance of the evidence. contradiction, Despite would listen.” 782 more, subsequent admissions interview, “tainted” and the 7:25

by the 09.28.06 of and contrary fully one was advised finding to the made after circuit court’s rights. of the preponderance the his Miranda clearly against had waived that it not: evidence. held did Court claim then to Osburn’s Mi- We turn extension of It an unwarranted inter the 09.28.067:25 illegality of simple that the failure to to hold that randa 8:55 interview the 09.28.06 view rendered warnings, unaccompanied the administer “The doc tree.” poisonous “fruit of the circum- actual coercion other by any evidence suppress courts requiring trine the to undermine sus- stances calculated govern of unlawful tainted ‘fruit’ as the will, free so ability to exercise his pect’s in Silvert genesis had its mental conduct process that a investigatory taints States, v. 251 Co. United horne Lumber informed voluntary and subsequent (1920); 182, 385, L.Ed. 319 40 64 S.Ct. U.S. for some indetermi- waiver is ineffective exclusionary there, that the held Court requires Miranda period. Though nate only illegally ob not to the applies rule must be unwarned admission itself, but also to other evidence tained any admissibility sub- suppressed, from the evidence derived incriminating should turn in these sequent statement Williams, Nix v. 467 evidence.” primary on whether it is solely circumstances 2501, 431, 441, L.Ed.2d 104 S.Ct. 81 U.S. knowingly voluntarily made. . States, (1984) “Wong v. Sun United 377 309, In at 105 S.Ct. 1285. so 470 U.S. 9 L.Ed.2d 83 S.Ct. 371 U.S. however, a dis- the Court drew holding, (1963), exclusionary rule to extended vi- procedural between a Miranda tinction product or that was the indirect evidence violation: olation and a constitutional conduct, there police but ‘fruit’ of unlawful that has that evidence again emphasized that his con- Respondent’s contention always be illegally obtained need been failure was tainted the earlier fession Further, the fruit-of- suppressed.” Id. Miranda warn- police provide of the has not been the-poisonous-tree doctrine as “fruit of ings and must be excluded there has been a limited to cases which exis- tree” assumes the poisonous has |17violation, but Fourth Amendment violation. tence of a constitutional the Sixth applied to violations of also been JjS---- and the Fifth Amendment. Amendment See id. use prohibits The Fifth Amendment only in its case in chief prosecution upon courts have relied

While some testimony. Failure to ad- compelled decision in Supreme States Court’s United warnings creates a Miranda minister Elstad, 298, 105 v. S.Ct. Oregon U.S. compulsion. Conse- presumption (1985), reject 84 L.Ed.2d that are quently, unwarned statements fruit-of-the-poisonous- application meaning voluntary within the otherwise Fifth Amendment viola- to a tree doctrine neverthe- of the Fifth Amendment must counsel,10 disagree right to tion of the from evidence under less be excluded of that decision. interpretation with their case, Thus, in the individual Elstad, Miranda. examined whether an In the Court Miranda’s, preventive provides medicine officers to initial failure of law enforcement who has remedy even to defendant warnings, without Miranda administer Cir.1991), Ricketts, (9th Moore, See, 943 F.2d 1020 as example, Howard 10. herein, Cir.1997), (4th upon opposed to the cases relied and Greenawalt v. F.3d 399 infra.

783 no identifiable constitutional very suffered there is a clear distinction between harm. the violation of a procedure and the viola- right:

tion of a primary flaw in the argu- State’s seriously BRENNAN cannot Justice ment is the distinguish failure to be- mean to such with equate situations the (in- tween violation procedure of a at inapposite case bar. are the Likewise forming an accused of his rights) and cites concerning cases dissent sus- (the right violation of a right to have pects rights whose invocation of their to present counsel during interrogation). remain or to have present silent counsel The procedure required under Mi- flatly subject- were while ignored police warnings randa is that given must be them interrogation. ed to continued prior to custodial interrogation, while 305, 306-07, 3, Id. at 312 n. 105 1285 S.Ct. procedure required by Edwards is (internal omitted) citations in (emphasis that suspect once a right invokes the original). counsel, police-initiated to all question- previously recognized We have that a ing must cease pres- until counsel is procedural Miranda violation is not neces- former, ent. With the possible it is Constitution, sarily a violation of the act in a manner is violative of may the “fruits” doctrine applicable. not be safeguard but not rights of the it State, 127, See v. 322 Ark. Childress protect; seeks to possible this is not (1995) S.W.2d 718 (rejecting, accord with conduct that violates Edwards. Elstad, appellant’s claim that his un- A violation of Edwards is a violation warned, initial noncustodial statement right to counsel under statements). tainted two later custodial Fifth Amendment. However, we are of the opinion “there 247, Id. at 544 N.W.2d at 553. is a critical difference between a mere case, defect the administration of Miranda In the instant Osburn’s warnings violated; ‘without more’ and police-initi- right Fifth Amendment as such, interrogation ated conducted after a sus- this Fifth Amendment “trig violation pect unambiguously the right gers poisonous invokes the fruit of the tree doc present have counsel during questioning,” requiring trine the suppression of the Id., as latter is a violation of a “[t]he constitu- fruits that constitutional violation.” Harris, right.” 553; tional State 199 Wis.2d 544 at N.W.2d see also Smith v. 227, 248, 545, (1996); 491, 544 N.W.2d see 132 Ga.App. 208 S.E.2d 351 (1974) 252, 273, Hartley, also State v. 103 N.J. (holding appellant’s that where first (1986) (“Therefore, 511 A.2d statement was inadmissible due to if suspect after a avails himself right of the State’s failure to show a waiver of his counsel, protections police Constitution’s violate and where the State did not invoked, right that has been appellant’s that viola- demonstrate that subsequent tion, by 119definition,is of constitutional confessions were obtained means suffi [Ojnce magnitude. ... it been purge underlying illegality, has deter- cient to mined that there has been a appellant’s subsequent failure to were confessions first, previously-invoked right honor pursuant Wong tainted [to Sun). silence], However, |2nof “[j]ust counsel or the resultant as the ‘fruit’ not, violation anything cannot be other than a a Fourth Amendment violation need circumstances, infringement.”). constitutional As all suppressed, under be observed, Supreme Wisconsin Court has a Fifth confession follows Amendment circumstances, psycho- free of the way was in no not, all under violation v. of hav- evidence.” State disadvantages logical practical and use as from barred addition, Vinson, 615, (Mo.Ct.App. 622 In ing had confessed. 854 S.W.2d 1993). custody the fruit-of-the- the two in continuous between respect With was doctrine, in pertinent statements, investigators poisonous-tree and the same two “whether, the establish granting quiry is in Osburn was both. While participated evidence illegality, the primary of the ment to a different location between taken has objection is made instant fif- permitted to which was a statements two illegal of that by exploitation come at family, been his he had no visit with teen-minute sufficiently distin and, fact, means ity counsel, or instead in was consultation primary of the purged to be guishable latter statement into the ushered U.S., 471, Wong Sun v. 871 U.S. taint.” the then-sher- employer, and former friend (1963). 407, 488, L.Ed.2d 441 9 83 S.Ct. iff-elect. then, Osburn’s is whether question, The original that when the have held We interview the 09.28.06 8:55 statement from illegal has been made under confession the 09.28.06 7:25 exploitation an of

was influences, pre- will be such influences sufficiently it was or whether interview subsequent and color all sumed to continue any taint was such distinguishable confessions, contrary is shown. unless the purged. State, 180, v. 305 Ark. 806 See Weaver case, we are the facts of this Under (1991). contrary has 615 S.W.2d state- say that Osburn’s simply unable Accordingly, we hold been shown. interview did the 09.28.06 8:55 ment from a fruit of 8:55 interview was the 09.28.06 illegality of the by exploitation not come 7:25 interview and the earlier 09.28.06 interview. As United the 09.28.06 7:25 suppressed. have should been United in observed Supreme States Court Bayer: v. States B. Coercion course, after an accused has once Of foregoing Notwithstanding confessing, bag by out of the let the cat States Su analysis, even were the United inducement, he is matter what no that a violation preme to determine Court psychologi- of the never thereafter free viola of Edwards is not a constitutional having practical disadvantages of cal and tion, this case would not disposition our the cat get He can never confessed. so, review This is because after change. The secret is out for bag. back in the circumstances, it is totality of the ing the sense, In a a later confes- good. such court that Os- abundantly clear to this upon looked as fruit always may sion be of coer were the result burn’s statements first. of his Fifth Amend cion and violation 540, 1394, 532, 91 L.Ed. 67 S.Ct. 331 U.S. right. ment (1947).11 illegal Certainly, where 1654 A made while statement p.m. was made at 7:25 statement involuntary, and custody presumptively subse- is p.m., at 7:35 and the concluded 12i prove by State to the burden is on p.m., taken at 8:55 quent confession was 122the later, the evidence that cus- twenty preponderance minutes just one hour making after those conditions a usable one that it had "never 11. The Court continued making gone Bayer, a confes- 331 U.S. at 540- so far as to hold have been removed.” preclude 41, its disagree. circumstances which sion under S.Ct. 1394. We do not 67 use, perpetually the confessor from disables

785 voluntarily and Colorado v. 479 given (quoting Connelly, statement was 824 todial 165, made. 107 S.Ct. U.S. 93 L.Ed.2d knowingly intelligently (1986)). The proper inquiry is Ark. wheth- Flanagan See er the defendant’s will has been determine overborne In order to S.W.3d capacity or his for self-determination criti- rights a waiver of Miranda whether cally impaired. See id. voluntary, knowing, intelligent, was the looks to see if the statement court Many of the investigators’ state rath- of free and deliberate choice product alleges ments that Osburn were threaten intimidation, coercion, or decep- er than therefore, and, coercive, ing, were made determination, See id. To make this tion. during the 09.04.06 11:15 interview.12 totality review the of the circumstances of the While some statements could indeed including age, the surrounding the waiver as threatening, be described the record education, accused; intelligence and of the they were made twenty-four reveals that lack of advice as to the his constitutional days the at prior to interview issue. We detention; the of the the rights; length say cannot that there was an essential link and of the repeated prolonged nature coercive between the behavior of the police physical questioning; the use of mental ac resulting and the confession of the by the and statements made punishment; 09.28.06 place cused. The interviews took vulnerability interrogating officers and the twenty-four days alleged after the threats Again, of the defendant. See id. we will Osburn, to which were made we believe a circuit court’s on this is- ruling reverse any time to avoid the enough effects of only clearly against prepon- if it is the sue State, See coercive statements. Davis v. Here, id. of the evidence. derance See (hold (1997) 76, 953 330 Ark. S.W.2d 559 argues that were his confessions that, ing to extent it could be argued coercion, product intimidation, and police-initiated that two contacts after statements deception, citing multiple of counsel at appointment attempt were an ’ inter- investigators made his earlier designed repeated questioning to wear views, threatening which he claims were his change down resistance or appellant’s regarded penalty the death his mind, five-day gap between the con family. agree. We tacts and his statement at issue served of repeated questioning). avoid the effects held, in deter previously We have however, said, cannot be mining prod whether a same statement was 124The coercion, to the respect be demon with tactics used and state- uct it must by Agents had a made Newton and Bosh- activity police strated of the ments interview, the 09.28.06 4:45 upon during effect See ears particular accused. State, just before the Standridge v. 357 Ark. which concluded 09.28.06 words, Our In “there 7:25 interview. review of the record S.W.3d other during be an link coercive reveals that the 09.28.064:45 inter- must ‘essential between | Mhand, view, at a lo- activity outbuilding conducted metal on the one defendant, resulting property, a cated on the then-sheriff-elect’s confession a ” agents immediately be- interrogating on other.’ Id. at S.W.3d at interview, Agent upon by 11:15 Newton Some of the the 09.04.06 12. statements relied met, being include him of "last he they told that the next time told Osburn meals,” ass,” jury then, and, that the [his] would "cook only be nice would for a short time "they’re going pump the needle get ugly.” going "I'm addition, arm.” In at the conclusion [his] fam- brought up Osburn’s agents again and love for concern using Osburn’s gan questioning: in their ily making him into to coerce family his having read Immediately after Agent died, confession. your wife Since Newton: Miranda rights, prior but Osburn his Kenny? year ago, what a form, the his Miranda rights signing his February It was Osburn: Uh-huh. concern for upon Osburn’s agents seized 20th. stating that ironically, after daughter, Agent Oh-five? Newton: him: threatening not they were year and a half. Yeah. About Osburn: Agent Yeah, Kenny, you Boshears: Agent Holly Kenny Jr. is Newton: you by any threatening know we’re (sic). Isn’t it? your life means. They’re my life. Osburn: why— No. But OSBURN: Ugh? Newton: Agent you want We don’t Boshears: Agent want to take care Boshears: You (sic). anything like that think you? of them. Don’t my Why why is it about Osburn: —But I try. Osburn: daughter? Agent Well, you apparently Boshears: Agent Well, we’re— Boshears: do. Agent into going get to Newton: We’re you Newton: You do best | í>bAgent that. kids. today, trying to raise two can you? Don’t Agent going— Boshears: We’re Right. she ain’t— Osburn: Because OSBURN: Agent The best you can. Newton: what, Agent you And know Boshears: talk, to probably going we’re interview, after we Os- During the course of the and, guys guys and tell those innocence, call those and the maintained his burn to let her loose. to reference Osburn’s agents continued family: Agent Okay? her loose. Newton: Cut Agent I think what Kenny, Boshears: Does that work for

| ..¿Agent Boshears: sorry I’m trying say to here and Rick’s and, and we’ll up call there you? We’ll Kenny. give He wants to interrupt, to you let talk to get her cut loose. We’ll really to tell us ev- you opportunity an you phone on the with get her. We’ll erything— to, bring we’ll even you If want her. I am. here, want to do that. You up you her if Osburn: Agent not, oh, just I do that? And not want us to Boshears: Kenny, And doing remember this. Yeah, bring up her here. Osburn: we’ve, you to got help to be able we’ve Agent Okay. We’ll— Boshears: us. And I you’ve got help here but to Agent done, yeah. After we’re Newton: sincerely you, mean that to Ken- truly, Kenny your bring her and Jr. We’ll And, than ny. and we’re no different daddy. mom and identify you, with we’ve you are. We Agent Anybody you want us Boshears: got families. here, Kenny, we’ll do bring up to your son your daughter I know you. you. they’re And what important are to you they’re what then asked Osburn to sign you his care about agents care about later, now but we care about

Miranda Only pages form. seven your your the truth. And son and couldn’t have made it home then to want, I think the daughter truth of all of pick up Kenny. you Do know what think, want, you you this. And I know going Holly? that’s to do to your in mind the truth is in best Agent Kenny, we don’t want Boshears: (sic) situation, I you so want to Rick to— what Rick trying say Kenny, is Agent Newton: We don’t want that to you help help yourself want us and happen. (sic) help your family by proving us Agent Boshears: We you don’t want the full truth. be embarrassed. your We don’t want informing After Osburn that a witness had we, son to be embarrassed. And we’re truck, seen him with someone in else his trying help salvage this whole situa- they again daughter: referenced Osburn’s tion where it is damaging your nobody in Wasn’t there with OsbuRN: can, family and we help we can them me. And, this situation. and take care of you Newton: What did I tell out them you’ve and then got our word that you there? What did I tell out there? we’ll do that. We have our homework. got We’ve anyone denied that got ^eyewitness cameras. We’ve lasWhen truck, the coercion continued: you somebody.[13] that saw Your daughter’s even admitted now to that Agent Kenny, evidence, Boshears: witness, Kenny, that will be put on the says the evidence something different. your witness stand. And daughter— And, work, and we’ve really done our we Agent dragging your BosheaRS: You’re have, I’m, Kenny. and, honestly, and daughter— Rick, I’ve talked to we’ve been talking Agent going drag Newton: You’re to days about this for a few you and I said your daughter in this. going You’re to know Kenny, Kenny’s when we met up dragging your wind daughter guy, bad Rick. got We’ve to be able through the mud. to way communicate with him in a that Agent he trying trying Boshears: We’re understands what we are to do to save him, Kenny help help family. Jr.— to to Agent Newton: Because that woman— got daughter myself Because I’ve Agent Your daughter Boshears: much, and I care about her so and I (sic). your son embarrassed We don’t put through would not want to her want to you. embarrass something like this. And I would do Agent to, daughter specifi- Newton: Your whatever it protect took to her. And cally, it, it, mean, your daughter, this witness told I my it hurts heart to think said, of, just your when the witness “I put my saw of that if I had to daughter daddy heading through towards the that I would want to minimize Kenny river.” Holly And said had the exposure going weirdest her and what she’s said, well, look on her face and daddy go through have to for something I’d investigators way 13. The witness told that after that there was no her that brother could Osburn, seeing nursing car, arrived she at the just have been in the had as Osburn daughter at which home Osburn’s was work- dropped her off and had time to not had the ing, daughter, saw his and mentioned to her go get her brother and have been where the had she seen Osburn and his son. The witness saw him. daughter witness said that Osbum’s told her Agent I right. That’s And something that something, did. And for Boshears: want, I want— fault. And I not her my fault and was my on or put her never want would Agent is, there is no There Newton: fault for some- be at and let them boys help you or us. We can’t tomorrow for And, for. responsible thing that I’m needs to be anything that we can’t do situation. in that help we can after Holly Kenny or Jr. you done can’t, are tied our hands

tonight. We Kenny, we cannot. can’t do it law. We Agent Kenny, you would BosheaRS: Agent help you can but to take the Boshears: We to have your daughter want can’t this door we like this? we walk out something when stand witness help you any more. your Or son? Agent No, By law we I don’t. We’re done.

Osburn: Newton: cannot. Agent your mom or your Or Boshears: put them don’t want Rick has been con- dad? You Boshears: familiar Kenny, you’re very night through you that. from the cerned about with— He’s called on me and you. he’s met him and been in you’d me called told thereafter, relayed to the Soon him, you were sick to contact tired,14 and, yet again, agents that he sleep- having trouble your stomach children an used Osburn’s agents That man know what? ing. you And talking, him as well as keep attempt you. And me worried about has called ability help Os- their regarding threats mean, me, I he cares about tells family: and his burn what, you care about You know you. Well, now, just I’m so Osburn: your kids and we you care about out. tired and wore can, we can family. We your care about get want us to Boshears: You I23AGENT way can do it in a quietly. this We do your daughter up here? get your it. I can want to do you and talk to sleep tonight I OsbuRN: Can here, you if want to talk to up daughter or whatever? tomorrow /all Kenny, I think when we’re done. them Agent Kenny— Newton: |anyou an end to this too bring want to Agent you get let We want to any sleep had and you haven’t because Boshears: rest, you get some and we’ll let some I know it’s been your been on mind. it’s daughter up get your And we’ll rest. since the last time we your on mind here. it? Hasn’t it? you. to Hasn’t talked my to mind rested got get I’ve pretty I’ve been Yeah. Osburn: Osburn: just I’m that wore really or I can’t talk. stressed. out. Agent you have. And I know Boshears: Agent I’m that wore Kenny, I, you have. you. for I know Boshears: I hate that you wore out? out too. Rick your daughter. out And it’s stressed Agent your out son. And it’s And it’s stressed Yeah. I’m wore out. Newton: mama. she’s your stressed out Cause you Kenny, tell this going But I’m you. about up there worried you today, here come once we’re finished with her. know, talked to can’t come back tomorrow. We’ve you we Osburn, immediately after his return from a arrested appears 14. It from the record driver, job. employed as a truck who was Agent Kenny, right Boyd point, now At that Osburn asked the agents to Newton: help you and I cannot document it to call his lawyer and told them girl that “the Holly if help Kenny my and to and Jr. we ain’t been in truck.” today. don’t do it We can’t. However, instead ceasing the inter- Agent got Boshears: We’ve to be able to view,15 agents continued to use Os- go to other law enforcement and be able burn’s concern for his family to coerce a to tell them our recommendation and him, statement from making such com- we, plans help you what what our are to ments as: And, help Holly to minimize this. Agent Kenny, we want Boshears: you get get your taken care of and help you to be your able to tell story. children taken care of and we’ll do that. And want your daughter your us, you’ve But got help Kenny. your son and mom not go to have to again: And through pain may cause. Agent Boshears: And I know it’s tough bring for us to have to this back up Agent Kenny, I you’re think Boshears: I again you and know don’t want to have a man that wants to things right make relive, you don’t want to rethink in life. I can see way again, about it but in order for us to tell relationship your daughter from your story, you’ve got to help us tell it what I’ve known about it and what I’ve first. seen. Agent Newton: On wrong. what went After Osburn deny continued to even is the helpful part Kenny, This Hol- who knowing Casey was until he had seen ly, Kenny Jr. This is the helpful the posters regarding her disappearance, part, Kenny. Out of everything, part- the agents repeated to they Osburn that ner. Look at me. Out of everything, truck, Casey knew had been in his asking everything compiled, that’s been this one else, if he was protecting someone specifi- thing now, talking we’re about cally, his son: one thing helpful part you that is the Agent Newton: We’ve accounted for to Holly— Holly’s Kenny whereabouts. Is it Jr.? right. Boshears: That’s you, Boshears: Are you are 132Agent Agent Kenny Newton: and Jr. protecting your son? Agent your Boshears: And mom. Well, my he don’t drive truck. Osburn: Agent your Newton: Your mom and

| S1 Agent Newton: saying He’s we’re not here, dad. part right This one it. that’s driving your he’s truck. saying— We’re just part. This is the one I have no He asleep. was at home in bed Osburn: your daughter your and mama idea— Agent Okay. your daddy. Newton: Agent Agent Just, just Well, start off you do want us Boshears: Boshears: where, where it went wrong, Kenny. you to rule him out? Did there —Is just else, somebody And lead us down the road and tell Kenny, you’re try- that your story. us ing protect? you your That loaned stated, already Agent geant Daley Agent 15. As both Newton and Michael Todd testified that Agent they ques- Boshears testified that did not Newton admitted to him that he had request hear attorney Osbum's first for an tioned Osburn after Osburn had asked for a Yet, lawyer. the 09.28.06 4:45 interview. then-Ser- 790 (2000) v. (quoting Miranda L.Ed.2d 405 girl that off you dropped to or that

truck 436, 455, 1602, Arizona, 86 S.Ct. 384 U.S. their house? at (1966)). 694 16 L.Ed.2d requested, again, then interview and the lawyer, agents Washington, call 373 Haynes In v. State of Agent According 1336, 503, terminated. 10 L.Ed.2d 513 83 S.Ct. U.S. suppression at testimony (1963), alleged Newton’s Haynes arrange trans- went to hearing,16 he then peri- 16-hour during approximately conversation between and the portation, the time of his arrest and od between Boshears, |¡¡¡¡asprevi- Agent signing of the written making opinion, in this occurred. ously set forth confession, police times asked he several attorney an and to allow him to call mem family arrest Threats to requests that such call his wife. He said subsequent a confession can render bers that he was uniformly refused and were Weaver, 26 People v. involuntary. See that he would not be repeatedly told 103, 876, Cal.Rptr.2d 111 29 P.3d Cal.4th “coop- until he to call unless and allowed Illinois, (2001) v. 372 (citing Lynumn 2 a gave them police erated” with 917, 528, 922 9 L.Ed.2d 83 S.Ct. U.S. admitting confession signed written and Matlock, 682, (1963); v. 51 Cal.2d People robbery. in the participation (1959)). totality Viewing 505 336 P.2d 504, circumstances, at 83 S.Ct. 1336. United clear that Os- 373 U.S. it is that it was Supreme Court observed resulting from the States statement burn’s told the voluntary. that detectives “had was not not denied 7:25 interview 09.28.06 only if mental, might that he call his wife physi petitioner be as well as can Coercion Fulminante, police a state- ‘cooperated’ gave he 499 U.S. Arizona v. cal. See ment”; merely that “said 302 detective 113 L.Ed.2d S.Ct. Haynes he could not ‘remember’ whether interrogation, police “[C]ustodial wife”; nature, call his and that “[h]e had asked to pressures isolates and very its ‘could have’ individual;] employ petitioner conceded that ... ‘even without 509-10, | Id. at request.” such a degree” “third or other ing brutality, the S4made stated that it could 1336. The Court ... custodial interro S.Ct. stratagems, specific significance to the fail- lib not “but attribute heavy toll on individual gation exacts to the listening after of indi ure of trades on the weakness erty and ” States, testimony, explicit direct and petitioner’s Dickerson United viduals.’ that crucial evi- 428, 435, attempt to contradict S.Ct. 530 U.S. record, sitting merely in the chair with Boshears still review of the 16. From our hearing, suppression open the door. I note that at the in the room with him. I make number, inquired Agent to what Newton as put the State my phone, dial a open invoked his to coun- there, said, Ken, he did after Osburn referring phone up and I sel, responded: to which Newton Whitmore, said, like Agent Ken I looks to already might had a I it as if he have took develop you If nothing going to here. is lawyer, whatever. lawyer y’all call me a minutes, twenty me in haven’t heard from going try speculate what he I wasn’t got you’ve to do. do what meant, the interview at that so I ceased presented was not Because this evidence him, fine, going we’re point and told not during suppression hear- circuit court rights. your violate constitutional however, ing, it is not for our consideration trial, Yet, Agent Newton testified on direct at point. on this defense, examination, by that when called interview," audiotaped which after "the first interview, was: 4:45 was the 09.28.06 dence; statement; void the more damning this testimonial written given light availability in of the the unfair meaningful inherently and coercive con- who, made, of the text in which willing co-operation policemen that choice cannot so, honestly | if to do be said to readily voluntary product able could have ssbe free and denied defendant’s claims.” Id. at unconstrained will[.] 83 S.Ct. 1336. Id. at 83 S.Ct. 1336. argued Haynes’s

The State that answers While Osburn did testify at the sup- questions to certain “conclusively nega pression hearing as the defendant did in existence of coercion or tive[d] inducement Haynes, there was no need. The tran- part police”; on the but the Court disa script recording of the 09.28.06 4:45 greed, stating that questions on “[t]he interview adequately demonstrate an inter- their face that petitioner disclose replete view with evidence of coercion. In- ‘booking' prerequisite told that was a to deed, there dispute is no the tran- wife, calling his ‘booking’ must mean scripts of the statements in this matter are booking charge robbery.” on a Id. at accurate, simply and we ignore cannot 512, 83 S.Ct. 1336. The Court then held: blatant coercion that occurred. portions The uncontroverted urges The State there is no evi- petitioner’s

record thus disclose that the dence that Osburn’s rights waiver of re- written confession was obtained in an sulted from or was influenced the coer- atmosphere of substantial coercion and cive disagree. statements. We As in inducement created statements and Haynes, repeatedly pressured Osburn was Haynes’ actions of state authorities.... in a coercive context provide a confes- undisputed testimony as to the making sion. Osburn finally succumbed to that signing of the challenged confession pressure, but only agents after the had against used him at trial permits no essentially “dangled” ability his to see and doubt that it was obtained under a total- protect family his in front of him time and ity evidencing of circumstances an invol- again. time simply ignore We cannot untary guilt. written admission of itself, coercive statements the interview

nor by Agent the statements Boshears during his conversation with Osburn fol- petitioner’s Neither the prior contacts lowing his invocation of the right to coun- with the authorities nor the fact that he interview, prior sel and to the 09.28.067:25 previously had made incriminating oral which continually suggested to Osburn negatives admissions the existence and might family that he not be able to see his effectiveness of the coercive tactics used arrested, daughter or that his might be in securing the written intro- confession unless he confessed. As the ob- Court duced at trial. The petitioner at first served in Haynes: resisted making written statement and only gave after consistent denials of We cannot blind ourselves to what wife, requests to call his and the experience unmistakably teaches: conditioning threat, of such outside apart contact even from the express upon police his accession to techniques present demands. basic here —the se- express Confronted with the threat of cret and incommunicado detention and interrogation continued incommunicado detention and adapted devices —are promise induced the of suspects. communica- used to extort confessions from course, family tion with and access to Haynes Of detection and solution of | is, best, understandably sign chose to make and at a difficult and ardu- sficrime anee of We further hold determination and the evidence. requiring ous task part responsible the of all persistence on 8:55 that because Osburn’s 09.28.06 state- duty with the of law charged officers clearly was a fruit of the quite ment And, certainly, we do enforcement. interview, it too should have 09.28.06 7:25 suggest interrogation that all of mean to suppressed. been suspects is impermissible. witnesses and only were Again, the two statements undoubtedly is an es- questioning Such time, slightly Osburn was separated in effective law sential tool enforcement. transported outbuilding from the metal and proper permissible The line between Newton, one the by Agent SEALEC of police techniques and and meth- conduct two involved in the investigators coercive is, best, a process to due at ods offensive interview, briefly permit- only he was and draw, particularly difficult one family. to visit He was then ted -with his it necessary this where cases such as further interviewed the same two as judgments make fine to the effect as friend and former agents, well as his pressures of coercive psychologically employer, Snyder. then-Sheriff-Elect on the mind and will of and inducements Moreover, stated, already as we have Os- we escape an accused. But cannot psychological burn not free of the and judging or of making demands of having of practical disadvantages already inherent in determin- appraisals difficult confessed. all of these factors in With constitutional have ing rights whether mind, simply say we cannot that the taint here impelled We are been violated. any of the interview was in 09.28.06 7:25 conclusion, pre- from all of the facts reasons, way For these attenuated. sented, process the bounds due findings court’s hold the circuit exceeded. have been 09.28.06 Osburn’s 09.28.06 7:25 and 8:55 514-15, at 83 S.Ct. 1336. U.S. voluntary clearly statements were were Here, it is clear that Osburn’s will was evidence, against the of the preponderance by the coercive dur- overborne tactics used and we remand reverse and Osburn’s con- ing entirety process of the interview victions and sentence.18 his arrest.17 we are following Accordingly, that the circuit court’s find- opinion Jp0Jp(b) II. ing resulting that Osburn’s statement from point For on appeal, interview his second was voluntari- 09.28.061S77:25 ly clearly against argues that the circuit court erred preponder- made was want, Arguably, investigators’ you op- 17. tac- We we want to have that coercive think, Jim, into the tics even continued 09.28.06 8:55 portunity you I wants to and ask rights, time, interview. After the review of his questions. really, a few So at I’m following Boshears made the state- just going to kind of back out and let Jim ment: clear, know, you you and so we’re talk. Just Hey, Kenny, Special Agent and Newton your friendship relationship the air and for, myself you visited before this at a that, know, just you you with him can kind location, you different we came here explain explain. you what want to It's you your met with mother met with So, Jim, I, just you us in here. know— your daughter family and some other mem- added.) (Emphasis concluding And we’re kind of bers. evening spent and the time that to- we’ve 18. Because we reverse and remand gether. you you And indicated that wanted above, address reasons we do not Osburn's with Jim here [the to talk then-sheriff-elect] leniency. regarding promises claim myself little while and so Rick for a said, know, you that would be fine. |¡^reversed admitting testimony in court and will Connie not be absent an Sparks regarding twenty-seven-year-old abuse of discretion. See id.

incident, which the State was lRSclaimed case, In this the State presented the pursuant admissible to Ark. R. Evid. testimony of Sparks. Connie Sparks Ms. 404(b).19 urges that because of the testified that early eighties, when numerous dissimilarities between the in- she eighteen was about years nineteen incident, Sparks stant case and the age, her sister had been engaged to testimony was inadmissible. He further that, Osburn. She time, testified at the asserts that the evidence was more preju- she lived in Dumas in country. Ms. was, therefore, probative dicial than Sparks married; however, her hus- pursuant inadmissible to Ark. R. Evid. 408. band was a truck driver and was often- disagrees, maintaining State that the away. times Sparks Ms. testified that on similarities between the two incidents evening, door, one Osburn came to her told intent, helped to demonstrate Osburn’s trouble, her he car had and asked if she motive, plan kidnapping commit and could take him to his car.

that there was evidence of sexual motiva- She testified that she drove her car with tion behind attacks of both women. It Osburn to the Arkansas River levee and further states that the probative value of that, there, when got she she did not see testimony Sparks’s outweighed any danger anything. She they got testified that out of unfair prejudice. car, and, time, at throat, grabbed her ripping started 404(b) Rule specifically pro clothes, at her grabbing her breasts. vides: She testified that he get started to into her crimes, Evidence of other wrongs, or pants, but that she was able to kick him in acts is not admissible to prove the char- groin, get away, and return to her acter of a person order to show that home. A review of the record reveals that he acted in conformity therewith. It Osburn did not Sparks. cross-examine Ms. however, may, be admissible for other motive, purposes, proof such as In op- ruling admissibility on the intent, of Ms. portunity, preparation, Sparks’s testimony, the circuit plan, court knowledge, found: identity, or absence of mis-

take or accident. this, looking And at the facts in there’s some similarities. Both these In analyzing the admission of evidence un women were alone at the time the De- 404(b), der Ark. R. Evid. this court has alleged fendant is to have encountered stated that such evidence is not admissible them, although in different circum- simply prior to show a bad act. See Rol stances, one at her home and one on the lins v. 362 Ark. 208 S.W.3d 215 side of the road. admissible, To be the evidence relevant, must be independently which There was an issue of involved in help them, means it tendency must have a to make prior both of one the victim where the existence of a fact of consequence to she was alleging the Defendant the determination of the case more or less wanted her to him. Here help argu- probable. See id. It is well settled that ment of motive or reason for the encoun- rejection the admission or of evidence is ter would be for the victim to have the left to the sound discretion of the circuit Defendant help her. Again, likely

19. we address this issue as it is to arise on retrial.

794 di]”). 2 Jack B. Wein- generally See motivation exists sexual

Arguably, the stein, ah, Evidence one, know et Weinstein’s In we cases. in both of these ¶ (1995); Wig- Henry 2 John In the oth- struggle. 404[12] physical there’s more, at of Evidence in Trials Common er, circumstantial there is 14nevidence rev.1979). (Chadbourn § one, the victim 302 know that Law In such. case, In this Defendant. overcame 447, S.W.2d at 778-79. Ark. at 902 321 act that committed the the Defendant if leeway to court the Affording the circuit with, did not. So charged she he was entitled, say that the we cannot which it is dissimilarity. that’s a in admit- court abused its discretion circuit circumstances, I think So under testimony. Sparks’s ting Ms. 404(b) a, of as evidence it fits under claims, and as the State As motive, intent, plan. court, acknowledged to the circuit readily other that evidence of have held

We was involving Sparks Ms. incident 141 to show bad acts are admissible crimes or time, years being twenty-plus in remote State, 34, Ark. v. 362 intent. See Davis However, we the incident here. prior to (2005). However, 474 207 S.W.3d remoteness deter- generally upheld have probative to be recognized that court has when the similarities between minations 403, act prior R. Evid. under Ark. charged and the of- alleged prior act See charged. to the crime must be similar an intent to commit the tend to show fense State, Ark. 902 In Sasser id. Allen v. charged offense. See (1995), this court observed S.W.2d 773 (2008). Here, 309, 287 S.W.3d 579 Ark. “for charged kidnapping with similarity the Osburn was degree of between [t]he inflicting physical injury purpose prior crimes and circumstances of [Casey] terrorizing [Casey] or en- upon or required for admission of present crime intercourse, 404(b) deviate gaging her sexual Rule is a determi- evidence under activity contact.” He was leeway or sexual considerable sexual nation that affords that “in charged capital with murder may vary with the also judge, trial to the (sic) the com- furtherance of is admit- the course for which the evidence purpose commission of the attempted & mission or Christopher B. Mueller ted. See kidnapping, or in rape offenses of Federal Evidence Kirkpatrick, Laird C. (2d therefrom, under circum- flight text immediate accompanying § n. 4 and 1994) (“To manifesting extreme indifference prior crimi- stances probative, be ed. life, did [he] the value of human an intent similar require nal acts must crime, Casey the death of strangulation cause charged required to that Crowder, and delib- premeditated or with usually prior said that the although it is causing the death of purpose erated closely not resemble crime need Crowder, crime.”); did cause her death.” Strong, Casey 1 John W. charged testimony was inde- Clearly, Sparks’s § Ms. Evidence n. 31 on McCormick 1992) (4th respect Os- pendently ed. relevant accompanying text motive, intent, plan in commit- (“The between the act burn’s similarities Moreover, as set attempted rape. ting acts charged [admitted and the extrinsic ruling, by the circuit court its per- not forth charged the act to show act alleged prior between the accidentally, invol- similarities inadvertently, formed Os- charged offense tend to show knowledge] and the guilty or without untarily, charged of- intent to commit the striking as burn’s extensive and need be as reasons, the circuit court For these operan- modus fense. required ... show [to admitting likely not abuse its discretion in did to arise on Accordingly, remand. Sparks’s testimony. Ms. we, forth, for the already reasons set re- verse and remand Osburn’s convictions Nor did the circuit court abuse its and sentence. in admitting pursu discretion the evidence crimes, prior ant to Rule 403. Evidence of Pursuant Supreme Arkansas Court acts, or if wrongs, 3(i) even admissible under (2009), Rule the record in this case 4— 404(b), Rule will not be admitted if the |,|Sbeen has objections, reviewed for all mo- substantially admission of such evidence is tions, requests made by party, either |^danger outweighed by prej of unfair Osburn, which were decided adversely to Ark. pursuant udice R. Evid. 403. See and, herein, except as stated no prejudicial State, 356, v. Henderson 360 Ark. 201 error has been found. (2005). balancing S.W.3d 401 The pro Reversed and remanded. against prejudice, bative value under Rule 403, is a matter left to the sound discretion HANNAH, C.J., part concurs in State, of the circuit court. See Holman v. dissents in part. (2007). 372 Ark. 269 S.W.3d 815 The circuit court’s decision on such a matter GUNTER, JJ„ BROWN dissent. will not be reversed absent a manifest HANNAH, Justice, JIM Chief abuse of that discretion. See id. in concurring part and in dissenting part. Here, the circuit specifically court ruled I in majority’s concur conclusion regarding objection: Osburn’s Rule 403 that the statements should have been ex- question The then becomes a However, cluded. I dissent from the ma- weighing test. question And the under jority’s conclusion alleged that the sexual 403 is whether the probative value is Sparks assault on Connie constitutes evi- substantially outweighed by prejudi- dence proving that Osburn murdered Ca- cial Obviously, effect. Sparks’s [Ms. tes- sey twenty-seven years Crowder later. timony] prejudicial. ques- There’s no time, tion about it. At looking the same State, Osburn, According just to the as case, at all the facts and in factors he did with Sparks twenty-seven years the Court finds that it does will not and before, got Crowder alone use of a allow the testimony. sexually motor vehicle near a levee and Indeed, disagree. We do not Sparks’s Ms. assaulted her. The State argued to testimony may have been prejudicial, as circuit court that as between as- the two 404(b) However, most evidence is. saults, only being difference he’s “[t]he similarities between the two acts were learned his lesson since then and decided intent, clearly probative of Osburn’s mo- Thus, not to leave them alive.” the State tive, plan, as theorized the State’s argued to the circuit court that the evi- charges, probative and the of Ms. value dence was admissible to show that Osburn Sparks’s testimony outweighed by was not subject proclivity, to a in other words Therefore, danger of unfair prejudice. sexually assaulting a character trait of we hold that the circuit court did not abuse women, conformity and that he acted in in allowing Sparks’s its discretion Ms. tes- sexually assaulting with that character in timony. However, Casey and killing Crowder. crimes, With of other respect point wrongs, to Osburn’s third on “[e]vidence ' appeal, prove we decline to address it as it was acts is not admissible to |44character specific to person Osburn’s first trial and is not of a in order to show admissible, very must be be there “To conformity therewith.” that he acted similarity between 404(b). Thus, degree of high the evidence Ark. R. Evid. uncharged prior crime and the charged not admissible State was by the as offered 152, 171, 338 Ark. 404(b). act.” McGehee under Rule degree S.W.2d argued to Further, the State although minuscule. case is similarity present similarity be- that the the circuit court in its discretion court abused The circuit and the upon Sparks the assault tween alleged prior admitting the evidence “somewhat strik- was murder of Crowder sexual assault. the support does not the evidence ing,” in testified that Sparks State’s assertion. Sparks’s evidence of I note that the also her appeared at early eighties, Osburn the evidence of a combined with assault was him to drive to where asked her door and shorts Crowder in the crotch of boxer tear and, ac- She' did so his car was stalled. to garment an outside wearing as was out of her they got as cording Sparks, to rape to her. attempted Osburn argue that car, the throat and by her grabbed Osburn that “the told the circuit court The State Sparks clothes. tes- began ripping at her Casey clothing was crotch in Crowder’s my breasts that Osburn “touched tified as she laid on the side ripped out there everything.” She further testified and However, never the State a ditch bank.” my in trying get pants.” to that he “started support the asser- any offered evidence in she kicked Osburn According Sparks, testified Officer Scott Woodward tion. Sparks had ending the assault. groin, the body that photographs about Crowder’s childhood, at the and known Osburn since there was a “tear he revealed that stated assault, was alleged the time of the thread was the material and where The sister. assault engaged Sparks’s He testified further actually apart.” torn occurred 1981. Sparks on had the boxer shorts the crotch of to this case, apart.” objection An “ripped shows been the evidence present In the sustained, Also, and the was characterization did not know Crowder. that Osburn jury that the circuit court instructed nothing about events the evidence reveals way that’s the “characterization that was killed. at the roadside where Crowder record from the hole occurred is stricken to show that Crowder There is no evidence by jury.” by disregarded will be sexually assaulted and grabbed and was anyone’s guess. the hole occurred is body. How touching portions of her Crow- caused an assault. evi- It could have been fully clothed. The body der’s was by injury body postmortem suffered was in this case is Crowder dence may have been activity, and that Sparks animal strangled by “zip-tie.” use of a |4fimay hole have been the cause. The grabbed, her throat was not testified that been may and have from normal wear strangled by “zip- use of a that she was Further, before she was killed. present when he was twenty-two tie.” Osburn was undergarment an wearing forty-six and Crowder assaulting Sparks accused of shorts, no evidence the boxer rape beneath attempting he accused of when was undergar- murdering |4SCrowder. offered to show The similari- was any that it showed ment was also torn or occurred near a ties are that the assault by person being vehi- evidence of disturbed involved a motor levee and somehow of- The evidence cle, murdered Crowder. victims were female. who and that give not rise simply the state does similarity the State fered striking There no as sexually as- to an inference that alleged. Sparks saulted The assault on principles, Crowder. stitutional I take issue with the dissimilar, majority’s analysis in nothing is too about the this case. I disagree that Osburn did not gives tear in the boxer shorts rise an reinitiate contact with police. I disagree further sexually inference that she was assaulted. that Os- However, burn’s will was overborne the police the circuit court allowed the agents’ reference daughter, to his Holley, State to introduce the evidence argue in an interrogation that took place four simply sexual assault when the evidence reasons, hours earlier. For these I would support argument. did not It caused affirm. jury to resort to speculation and con- jecture. Speculation conjecture can- Right a. to Counsel support jury verdict. See Flowers v. In analysis an of whether Osburn reiniti- 373 Ark. 282 S.W.3d 790 police ated discussion with agents upon

Such conviction would be based counsel, right waived his the time line in required evidence less than that to show this case is all important. At 4:45 p.m., proof beyond a reasonable doubt and there was a lengthy interrogation of Os- process would violate due under the Four- by burn FBI Agent Boshears and CID Virginia, teenth Amendment. v. Jackson Agent Newton. Toward the end of 307, 316, 443 U.S. 99 S.Ct. session, Osburn attorney, asked for an (1979). L.Ed.2d 560 questioning stopped. There was no Finally, Sparks incident is too re- confession made Osburn. in mote time. The state acknowledged Prior to the second interrogation of Os- that the assault was “remote in time” but p.m., burn at 7:25 judge the circuit found argued that the similarities were so strik- following that the occurred: ing that the evidence was admissible. defendant did in this particular [T]he

Similarity is not enough. Where evidence statement p.m. 7:25 [the statement] is remote in time and unconnected to the willingness evince a crime, gener- desire for case, charged present as in the alized discussion about evidence is not relevant. Abernathy See ^investigation, when he said to 325 Ark. 925 S.W.2d 380 Boshears, “I am in a mess.” The fur- time, The evidence was remote in dissimi- ther conversation between the defendant crime, lar to charged and unconnected and Boshears from that point led even- charged to the crime. The circuit court tually stating to the defendant he 147clearly want- abused its discretion in admitting ed to talk further about the situation the evidence. This case should be re- right thing.” and “do the versed and remanded on admission of the evidence of the Sparks assault on under Earlier, judge had said in his order 404(b). Rule stated, then “I’m Osburn in a mess.” responded Boshears that he relies on his Justice, BROWN, ROBERT L. faith in such circumstances. Osburn dissenting. pray asked Boshears to for him. Bosh- would, The suppression p.m. of the 8:55 already. confes- ears stated he and had majority emotional, sion eviscerates the State’s Osburn then became stating Osburn, against case making a retrial a he daughter. wanted see his Bosh- possibility. agree remote I spend While whole- ears advised him to some time in heartedly involuntary prayer jail. confessions when he was Osburn must be suppressed explained worthy, under our basic con- he did not feel right of Osburn’s I see no violation in life. Bosh- doing well been

had not confession. talking. p.m. the 8:55 keep counsel if he wanted ears asked First, with the right to do the initiated contact he wanted Osburn said confession, opened' p.m. then 7:25 talk. Boshears before the thing police Newton, use, him telling also did and called did not the door which the State their conver- to continue wanted confession. Sec- p.m. the 8:55 so before (sic) regarding judge the circuit Here is what chief. Bayer, States v. can occur. See United in connection with transpired found 532, 1394, 91 L.Ed. 1654 67 S.Ct. 331 U.S. confession: (1947). And, yet, majority concludes family members the defendant’s After confession, where no one p.m. 8:55 that the Sny- left, approached Mr. the defendant with initiated contact disputes that Osburn [deputy sheriff-elect] sheriff and der Snyder visiting after Sheriff Deputy stated, was not me that did “Jim that irrevocably tainted. The family, his Further conversation girl.” that to that this conclusion. simply support facts do not ensued, in Snyder calling which led to Newton, and Rick and a Agent Boshears reopen- point case on the The seminal interview with defendant. taped further with law enforcement after ing dialogue p.m.], the to this interview [8:55 Prior Oregon v. right to counsel invoking Miranda, given another defendant was 2830, Bradshaw, 1039, 103 S.Ct. 462 U.S. signed a waiver of rights statement (1983) opinion).1 (plurality 405 L.Ed.2d wanted to He indicated he rights. those Bradshaw, held that the de- In the Court interview, which con- in the participate reinitiate contact and fendant could tains admissions. evince | comments must defendant’s -nthe a general- and a desire for willingness that Os- “a majority dispute does not The investigation” about with law en- ized discussion contact burn reestablished “directly indirectly or to the relate p.m. 8:55 confes- forcement [49before 1045-46, Id. at 103 S.Ct. and, thus, investigation.” with the Edwards complied sion Surely, that occurred with Osburn’s Rather, 2830. majority argues case. the 7:25 “I’m in a mess” reinitiation before by tainted earlier confession was “that was not me” and his poison- p.m. fruit of the confession because it was events p.m. confession. comment his 8:55 before tree. ous examining all circumstances sur- favor of the fifth vote in favor of 1. Justice Powell was Bradshaw, interrogation rounding in and in such as the second statement renewed concurrence, he a reinitiation his test, eschewed the defendant was whether re-Mirandized. vague, in which he considered to be nevertheless, majority, casts a they blind would “cut her loose” if he talked. eye to these facts and relies instead on an An American Reports Law annotation Supreme gives Illinois case v. (People thorough Court examination of what state Olivera, 433, 207 Ill.Dec. 164 Ill.2d 647 and federal courts have done in this area. (1995)), Miller, where procedural Annotation, N.E.2d 926 See Carroll J. Volun- questions happened?” like “What at the tariness as hy Po- of Confession Affected lineup happens “What next?” were lice Suspects’ Statements that Relatives analogous compa asked. That is not an by Will the Confession, 51 Benefit (1987 facts, rable situation to our where Osburn A.L.R.4th 495 & Supp.2007). Clear- ly, initiated contact police holdings comments to are mixed based on the officers to the relating investigation and to facts of each case and based on the connec- predicament. his tion of the perceived confession to a bene- fit to the relative. sum, In the majority has found that the circuit judge clearly findings erred Rather than discuss this exhaustive sure, principle of fact. To be report, ALR majority cites California grave importance, to counsel is of but it case for the general principle that threats clearly can be waived under Oregon v. family arrest members can render a Bradshaw even after the right has been subsequent confession involuntary. See invoked an accused like Osburn. That Weaver, People 26 Cal.4th 29 P.3d is what happened this case. Cal.Rptr.2d No one

I point, would affirm on this that, disputes but whether the confession depends |Baon should be suppressed b. Coercion facts of each case. The majority then Next, Haynes Washington, relies on majority the holds that the 373 U.S. police (1963), agents’ 83 S.Ct. 10 L.Ed.2d 513 twenty- references to Osburn’s year-old |fi1daughter, where an accused was told he could not Holley,2 in the 4:45 call p.m. his wife until after he was booked interrogation cutting about her and loose interview, charged robbery. after the coerced a confession four p.m. occurred hours later at 8:55 Those express or direct threats do not That holding is at odds with Arkansas case Furthermore, exist in the instant case. law and the many case law of of our sister scenario, Haynes unlike the factual Holley states as well. key was a witness because she was with an point, majority’s As initial the discus- her father the of the morning murder and sion of this unnecessary issue is and is suspicion was under for making herself dictum the majority already because has contradictory police statements to officers suppressed point the confession under one. interfering and for with the investigation. Be may, that as it I will address the judge recognized The circuit this fact and coercion issue. in pressure found his order that no relat-

The question posed by majority the ing Holley any caused Osburn to make opinion is whether law enforcement acted incriminating majority, statements. The however, within appropriate by telling boundaries applies fruit-of-the-poisonous- the daughter suspicion Osburn his was under tree judge doctrine to reverse the circuit spells "Holley,” 2. The transcripts. record her name but “Holly” she is referred to as in the interview detained law for this detained and not but cites no case be she was point on this him. time statements Vague at that application. Holley used cutting ploy about loose was against militate points Several additional tricks, in by law enforcement its arsenal First, conclusion. majority’s the coercion hardly rises to level of a direct but it p.m. 4:45 did not confess at the prosecution a criminal charge threat of when contends interrogation majority Holley confessed. against unless Osburn Holley was regarding pressure courts, Arkansas, have majority including to bear on him. The Other brought precise psychologi- extensively that session with dealt with issue quotes from enforcement, af- pres- using family feel members and but rather than cal tactics law confess, ago, in usage. years not confess firmed their Just ten sured to Osburn did alleged were made invoked his to counsel at a case where threats of the against The facts the mother and brother conclusion interview. confession, this court His will was not accused to obtain speak themselves. held as follows: overborne. |MEven testimony if Mr. were Rankin’s to this is the fact that nowhere Added court, police believed trial spe- there a p.m. interrogation

the 4:45 may psychological use some tactics prosecu- or direct of arrest or cific threat a custo- eliciting coercive statements made toward There were ref- Holley. tion long from the accused so dial statement embarrassment, public erences to because employed the means are not calculat- as key be a at trial since she would witness statement, an procure ed to untrue |63by been she had taken to work completely free not the accused’s will is morning Casey murder. Crowder’s Ark. [334 overborne. Conner v. But there were no threats of arrest direct (1998) have 982 S.W.2d 655 ]. We Holley even was under charges, though held that threat to previously an officer’s suspicion contradictory because of state- wife, although the accused’s obvi- arrest had the course of during ments she made accused, ously intended to influence the investigation because she would did not render statement involun- brother, Jr., Kenny, let her answer State, 21, v. Ark. 947 tary. Hood 329 Agent testified at questions. CID Newton (1997). case, 328 In Mr. S.W.2d suppression hearing that she became Rankin decided to his confession give potential for ob- suspect prosecution for and Addi- Cooper after Detectives justice. struction of weapon. him son showed the murder testify he Nor did Osburn ever that was circumstances, these we are un- Under fact, In he the stand coerced. did not take say able to that Mr. Rankin’s free will testify suppression at trial or even at the any al- completely was overborne Agent FBI hearing. Boshears CID threat mother and leged detain his they Newton did would “cut Agent say brother, procured or that such a threat [Holley] p.m. investiga- loose” in the 4:45 an untrue statement. they tion after were done with Osburn. State, 723, 729, 1 Rankin v. 338 Ark. Agent But Newton also testified at CID (1999); State, 14 see Hood v. S.W.3d also no suppression hearing that he had 21, 329 Ark. 947 S.W.2d 328 knowledge being ques- that Holley was State, Similarly, in Hood we said: v. interrogation tioned at the time of with FBI added that to the officers’ to Hood to appeal Osburn. Boshears As health Holley going he was not aware that consider the of his wife and

801 coercion); arrest, State, her we have observed Martinez v. threat of 127 S.W.3d (confession police may, violating that without (Tex.Crim.App.2004) 792 rights, an on attempt play accused’s coerced where detective positive made no or to him that sympathies explain promise confessed, to defendant that if he honesty policy, provided the best is brother and sister would charged); not be that the accused’s decision to make a Gonzales, 388, State v. Wash.App. 46 voluntary custodial statement is in the (1986) P.2d (promise by detective to product sense that it is the of the ac attempt get suspect’s wife released Id.; cused’s exercise of his free will. custody from would not alone render con- State], Misskelley supra see also [v. involuntary). fession (1996) 449, Ark. 915 S.W.2d 702 [323 ] Had law enforcement specif officers (police may use some tac psychological ically directly charge threatened to eliciting tics in statement custodial Holley as an accessory to if murder Os- accused). from an Although the inter confess, burn did not my view of the case rogating officers’ statements were obvi would be different. But those are not the Hood, ously intended to influence Rather, vague facts. psychological tactics say are unable to were im they involving Holley were employed. That is proper contrary to basic notions of permissible under our case law. See Ran fairness, they procured or that an un State, 723, 14; kin v. 338 Ark. 1 S.W.3d true statement. State, Hood v. 329 Ark. 947 S.W.2d 328. 33-34, 329 Ark. at at 335. S.W.2d Is Moreover, Holley was under suspicion. majority overruling Rankin and Hood |MAs today’s point, a final it important decision? to note Holley’s name never up came in the In years, many recent state courts have p.m. interrogation later 7:25 or the 8:55 involuntary faded to find a confession p.m. interrogation, both of which resulted promises relating family based on Plus, in confessions. Osburn met with See, variety members for a of reasons. Jr.; Holley; Kenny, and his mother for a e.g., v. Cain on N.E.2d fifteen-minute discussion remanded, before the 8:55 reh. (Ind.App. 599 N.E.2d 625 n .m. 1992) (in Any confession. misconceptions involuntariness, order to show status, Holley’s about assuming there were family must show direct against threats clarified, doubt, members); any, were no at that time. Raymond, Com. 424 Mass. (1997) 676 N.E.2d 824 (suggestion majority simply has not made a case coercion, might prosecuted mother be as an for either under the law or these accessory lying about whereabouts of facts. coercion); car not sufficient Reynolds v. I would affirm on this issue as well.

State, 494, (1992) 327 Md. 610 782 A.2d (where defendant investigated for sexual n . Connie Sparks WMb) — daughters, by abuse of two statement offi- I disagree majority’s further with the cer that truth “help” daughter would one 404(b) analysis of the Rule issue for the confession); did not induce State v. Ste same reasons set out in Justice Han- Chief 144 phenson, N.C.App. 551 S.E.2d (2001) (officers’ dissenting opinion point. nah’s on this 858 statements that son behaved, Sparks offense and the Crowder mur- they was well that observed but, son, commonality closeness defendant der have little factual had her that son importantly, Sparks deserved a better life than he more the bad act is was now experiencing twenty-seven years did not amount to old. theWith notable

802 (see, Al free will is over- e.g., completely cused’s not pedophile of cases exception State, 309, 287 S.W.3d 579 Id. v. 374 Ark. borne. len (2008)), of cases that I know no Arkansas transcripts A review of the from prove far in time to gone so back have 4:45 not reveal that 09.28.06 interview does 404(b). The more plan intent or under Agents improperly Newton Boshears remand for trial reversal and appropriate On intimidating used coercive or tactics. point. this be on would contrary, that transcripts show holding twenty-seven- this any

But on appealing Newton and Boshears were act is irrelevant largely bad year-old sympathies they explained when Osburn’s majority the fact has light of that may that his be “em- to Osburn children Be- out the 8:55 confession. p.m. thrown “dragged barrassed” and into” the investi- this, I doubtful exceedingly am cause of ap- Similar have been gation. tactics 404(b) will where the that a retrial occur \^Hood, proved by supra, of this court. In would be resurrected. issue court held that threats to arrest wife did not confession reasons, Hood’s render his respectfully all of these I For State, involuntary. Again in Rankin v. dissent. 723, 1 (1999),this court 338 Ark. S.W.3d 14 GUNTER, Justice, dissenting. JIM of tactics to an ac- approved appealing al- family. cused’s concern for Rankin |57I portion in the Brown’s join of Justice that his him that leged interrogators told opinion 8:55 dissenting that 09.28.06 to be going his brother mother were was not of an Edwards interview the result police gave at the station until he an held violation. incriminating held that statement. We agree with Brown’s con- I also Justice allegations if Rankin’s were believed even clusion that Osburn’s confessions were truth, tactics, alone, to be the such would and coercion. product intimidation involuntary. his statement be not cause used Newton and Agents The tactics Pilcher, Additionally, supra, we made Boshears, according majority, were finding police where Pil- no coercion they in nature appealed coercive because in- cher’s statements were obtained after This, concern to Osburn’s for his children. Pil- terrogators prosecute threatened to say, contrary prior I to our case must alleged I find the coercive parents. cher’s police law. have that We observed in the instant be not so unlike acts case to may, rights, without an accused’s violating of facts in cases where prior the sets our ex- attempt play sympathies on his approved psychological of such tactics. policy, plain honesty to him is the best Moreover, I must note that no threats the accused’s decision to provided physical violence or harm were made voluntary in make a custodial statement is interrogators. reviewing After Osburn’s it product the sense is the interviews, transcripts of I Osburn’s accused’s exercise of his free will. Pilcher say simply cannot that Osburn’s state- State, Ark. 136 S.W.3d product ments were of coercive (2003) Ark. (quoting Hood v. intimidating police tactics. (1997)). have further 947 S.W.2d We police psy- that the may stated use some tactics custodial

chological eliciting accused, from the as the long

statement so pro- employed

means are not calculated statement, ac-

cure an untrue and the notes other criminal Further, jury by book or treatise." the trial court structions submitted to the court.

Notes

notes was terminated. 4:45 interview 09.28.06 interview, consented to was outside of the Agent Newton While truck. In his home and searches of both outbuilding making arrangements metal addition, agents noticed scratches after the arms, transportation, a conversation agents for Osburn’s permitted he on Osburn’s body. between Osburn place his entire took photograph Boshears, Dur- | (;whichwas not recorded.3 day, Osburn p.m. At 11:15 that same Bosh- hearing, Agent ing suppression interviewed, by Special this time again him if he that Osburn asked ears testified Agent Boyd Boshears Agent Newton explained Boshears family. could see his Investigation, Bureau of of the Federal

notes warnings Boshears ond, sation. his Miranda given he was by the admitted were this conversation certainly knew each confession and before purposes as impeachment Defendant for was, he had to counsel since what his A. The Court does Exhibit Defendant’s the end of attorney toward asked for an substantially different it to be not find interrogation. p.m. his 4:45 testimony. from his hold, majori- as the It is a real stretch confession, Osburn p.m. the 7:25 After does, change his could not ty that Osburn with law enforcement contact reinitiated talk- hours later about mind three or four p.m. the 8:55 confes- time before second having counsel police to the without ing sion, pre- the confession that was which is State Su- Certainly, the United present. in the State’s case jury to the sented that this acknowledged has preme Court

Case Details

Case Name: Osburn v. State

Court Name: Supreme Court of Arkansas

Date Published: Jun 25, 2009

Citation: 326 S.W.3d 771

Docket Number: CR 08-1146

Court Abbreviation: Ark.