*1 Affirmed. George Harris, Rose Smith
We C.J., agree: Byrd, JJ. Arkansas STATE
William Goodwin TUCKER
Pollard, Hatfield, Cavaneau <3f for appellant. Tucker, Gen., Asst. Jones, Atty. Atty by. Guy Jackson Jim Gen., for appellee. William P. Goodwin Special Edward Jones, Justice. was convicted (also known sixteen Billy) Tucker age and sentenced to (10) his mother ten years killing imprison- ment for murder. His second contends that degree appeal confession admission him made were subsequent obtained. voluntarily
The evidence 12:00 indicates a few minutes after 3, 1975, a.m. Tucker walked approximately April three blocks from a home friend’s Arkansas to Judsonia, the home of Tucker bis A later mother. short time to his returned friend’s home there and told people that his mother had been killed. Law enforcement authorities were contacted reflected that Mrs. investigation *3 Tucker, Tucker, the mother of been beaten and had Billy stabbed death. the next hours two Tucker During Billy was at his home with numerous law enforcement of- present a.m., ficials was not until 2:00 questioned approximately when Officer of the State arriv- Arkansas Police Doug Fogley ed at the Tucker home. Officer advised Tucker Billy Fogley the afforded him ob- under the U. S. Constitution and tained him from At time written those waiver rights. Tucker denied in the Billy involvement death оf his mother.
At a.m. the 4:00 Defendant was placed approximately a cell in the section of the at Arkansas. At juvenile jail Searcy, 6:00 a.m. took the approximately Officer Defendant Fogley from the cell and him. A fingerprinted photographed trace metal detection TMDT test or was to deter- performed mine whether or not con- Defendant’s had come into hands tact with metal. that test Officer the Defendant took
Following Fogley an office and him for one hour. interrogated approximately attended Officer During Fogley interrogation, only by Defendant, created, the Officer accor- Fogley purposely the his own with ding testimony, friendly relationship trace Defendant. Officer advised the that the Defendant metal had detection test Defendant’s hands indicated the come in the contact with metal during objects preceding hours and that a latent further advised Defendant finger- had near the been found on broken print glass body deceased and that the would turn out to be probably print advising It is clear purpose
Defendant’s. was to and the results test fingerprint Defendant of the metal the Defendant physical creatе the impression At this in- his involvement guilt. evidence existed proving Tucker, knew but did not Officer Fogley terrogation means con- test no tell that the metal the Defendant his mother. had stabbed clusive that the Defendant evidence the Defendant that print He knew but did advise also and probably found on print the glass only partial piece isIt in- to the Defendant. could not be determined belong been Defendant’s that even if to note print teresting to the evidence as guilt also would not have been convincing in the house Defendant lived the Defendant since the other than while could hаve touched killing easily glass Mrs. Tucker. described to the Defendant
Officer then the Defendant. of how crime was committed theory to make a that he desired Thereafter Defendant indicated in addition to statement and after a witness Officer Fogley Tucker admitted Defendant killing present used. After of his mother and further described two knives the Defendant the officers this statement giving accompanied and indicated to of- to the kitchen of the Tucker home *4 the two involved. ficers knives of his of at the time Tucker was sixteen years age
Billy be this Court is a to considered confession and factor by age of a confession. the voluntariness determining The Defendant was with his mother Judsonia, living father, Cook, in North Little but his William A. was living Rock, of Mrs. Tucker After of the death Arkansas. hearing to Little Rock and father traveled from North Judsonia to his Tucker was taken talked with son to the time prior awas Mr. that he was not aware that Billy testified Cook jail. to until and not that he was taken also was aware jail suspect Officer was made son. He to after confession spoke by at of the but did not advise the Officer the scene crime his son nor did that he not want the did Officer sрeak for his of make effort to secure services an attorney any son. did There substantial in school. Defendant poorly mental and
evidence in the record to the capabilities of Tucker. capacity factors,
These lack of three a parent namely, age, the Defen- some other adult dant, of interrogation present during all rele- and the the Defendant mental of are capability the con- vant are circumstances important surrounding fession this Defendant.
The other which events are relevant the voluntariness of the what the death confession concern occurred following of Mrs. Tucker. Defendant urges explanation Constitutional waiver occurred thereof subsequent rights “noise, in an about confusion atmosphere milling of the connected directly persons investigation crime”. He that he was a lack submits impaired sleep that the which occurred a.m. in at 6:00 interrogation Defendant also that no contends morning unjustified. of the in- confession occurred because length the in- the false created by terrogation, friendly relationship officer and and false statements made terrogating trickery Defendant the officer. and scene at the Tucker Undoubtedly, atmosphere home the initial of the death and during investigation of the Defendant were not ideal circumstances questioning However, for of a witness. there is no interrogation evidence in this record that the Defendant was not able to hear and were to him understand as they explained or that he did understand waive these intelligently mentioned, As Defendant time at previously rights. denied involvement in the crime. be true that lack Defendant tired from may 6:00 at a.m. 1975 when the confession
sleep April *5 made. But we cannot conclude and evidence does in- dicate that the of one hour caus- interrogation approximately ed truthfulness to be compromised fatique.
Defendant above that the factors set forth several urges the con- of circumstances surrounding
constitute a “totality con- render this fession”, which, when considered together, This admissions involuntary. appeal fession subsequent to his confession when circumstances that all relating argues State must be reached the conclusion are examined of a intelligent failed in its burden knowing has showing remain to counsel and right of Defendant’s waiver right Arizona, 384 v. Miranda set forth in under silent principles (1966). The Defendant contends allowing U.S. two admission confession and concerning subsequent was error. knives into evidence to have The an individual remain silent of right well When of counsel is established. the assistance available of is obtained and the voluntariness an confession in-custody we an determina- make independent confession challenged and in mak- entire record tion the issue from review sur- look to the circumstances such a review totality ing However, we will not set aside the confеssion. rounding trial court unless the of voluntariness finding finding v. of the evidence. Degler clearly against preponderance State, 388, (1974). 2d 514 257 Ark. 517 S.W. 311, State, 358, 2d 246 Ark. 438 S.W.
In v. Moseley of a defendant does not concluded prevent giv youth waiver or the confession intelligent, knowing ing State, 785, v. 239 Ark. his Constitutional Shepherd rights. 2038, den., 923, 18 L. 387 U.S. 87 Ct. 2d 624 cert. S. 582; 977; 2d 114 Ark. 170 S.W. Ed. Dewin 2d 174 S.W. lack of educa Mitchell been held to establish tion alone has insufficient standing a confession or waiver of was involuntary. Although counsel or some states present require parent, guardian does when a such a juvenile questioned, requirement Therefore, exist Arkansas. although Moseley supra. relevant, the evidence mental capability regarding age, is not to find an involun lack adult protection persuasive confession. tary the two crucial of this case and aspects certainly which have been most
matters argued emphatically Defendant and Defendant concern the between relationship
51 1 Officer and and created cultivated Officer Fogley by Fogley the statements made Officer Defendant con- by Fogley the. and the trace metal test. It is detector cerning fingerprints elements, asserted that these twо with the events coupled above, discussed into of cir- previously “totality bring being cumstances” the confession We do not rendering involuntary. with this conclusion. agree
Officer testified that after and Fogley fingerprinting the Defendant the metal test photographing conducting he took the Defendant to his office and talked they together alone for one hour to the confession. That scene is prior described Officer and in essence substantiated by by the of Defendant. Officer testimony Fogley attempted gain confidence the Defendant. He his described with Defendant as that of a “dutch uncle.” He relationship death,” that stated he “love him to attempted information metal test concerning fingerprints ” were a “ruse” and This “con. probably friendly relationship in seen Defendant as notion in by appeal creating mind Defendant a confession he could ex- by making and that and metal detection in- pect leniency fingerprint formation was a trick or artifice which violates notions fair and which are He Arkansas. cites as play impermissible Brown v. 15 (1939). authority show, As a review of that case will Defendant Brown coerced into duress аnd clearly making subjected confession. Such did not with the occur purported simply here, Defendant Tucker. the use of Limitations on law have been deceit enforcement officers trickery by considered the United well States Court as Supreme courts of other U.S. jurisdictions. Cupp, Frazier (1969), Marshall stated: opinion Justice
“After after a few questioning begun ascertained, routine facts were petitioner question- ed about location of his Marine uniform. He briefly was next where he asked the night question. he admitted was with cousin Although Rawls, he denied third Then being person. a somewhat petitioner was abbreviated given descrip- tion of He his Constitutional was told that he rights. he wanted one and have an if
could attorney *7 him trial. be used at he said could against anything more became somewhat thereafter Questioning with but continued deny petitioner being vigorous, but Rawls. At this questioning point, anyone officer him, in and Rawls had been told brought petitioner falsely, talk, still was reluctant to Petitioner that he had confessed. vic- that the the officer but after suggested sympathetically advances, homosexual a tim started by making fight he his out after Shortly story. petitioner began spill said, ‘I of reluctance and showed signs began again I I before talk more. think I had better any get lawyer than I now.’ into trouble more am in am to get going ‘You can’t be in more The officer simply, replied now,’ and the ses- than are trouble questioning you and, full was obtained A confession sion proceeded. written after further version warnings, signed.” added.) (Emphasis concluded:
The Court fact “The police misrepresented is, relevant, in- while that Rawls had made statements to make this otherwise sufficient in our view inadmissible.” confession (M.D. F.
In
389
931
the case of Moore Hopper,
Supp.
anot
1974) the
asked to determine whether or
Ga.
court was
enforcement
to an accused
a law
officer
false statement
fraud,
obtained,
such
had been
that the murder weapon
to be in-
as
cause
confession
deceit or trickery
subsequent
are
There the court concluded
confessions
admissible.
methods,
when obtained
such
not inadmissible
provided
not calculated to
an untrue
the means
are
procure
employed
than the
further
confession
statement
provided
made.
See also Moore
otherwise
voluntarily
freely
(1973);
Hudson
153 Ga.
S.E. 2d
Ga.
695,
Thereforе, we conclude relationship friendly false in this case did not cause a created Officer Furthermore, we also con- in this Defendant. hope leniency elude that the statements the finger- misleading concerning an un- did or cause Tucker to make print prompt truthful confession. we find that when summary, “totality considering
of circumstances” confes- obtaining surrounding sion of Tucker that the cumulative effect of par- ticular characteristics well of this individual Defendant as the events relevant to do not his confession surrounding constitute duress coercion. This was advised of Defendant to remain did silent and his but counsel right right choose to avail himself of those Actually, opportunities.
own statement reflects that he familiar entirely *8 officers, of procedure being “given rights” by police that on occasions he “wouldn’t doubt” but that stating prior had been to him more than six and times explained that he understood them even were before they explained the occasion question.
This is affirmed. judgment
Fogleman Holt, and dissent. JJ.,
Hickman, J., participating. Fogleman, A. I must Justice, dissenting. respect- John from the of this fully dissent affirmance conviction and the refusal of the to court hold the confession this to be in- case and admissions the of Tucker the voluntary subsequent fruit of that tree. court has service to poisonous given lip the rule 314, first in Harris stated 293, then, i.e., 2d and almost since monotonously repeated this court makes an of the determination independent voluntariness of a confession from the the cir- of totality cumstances; however, the to the has failed face to majority up circumstances,” of the content to “totality being separately isolation, view each as if circumstance in there were no other each, one, circumstances, one and did this say render This the was done somewhat confession involuntary. like wheel one each a wagon by removing spoke, examining ” one, and it and this not a wheel! is viewing saying,“Why, removed, all have been process the until examined repeating wheel, then, the viewing discarded because it not a and wheel, “Behold, not a at this is detached rim and exclaiming, instead, been all; a If spokes it large hoop!” only circumstance), (each in the hub the rim inserted circumstances) would (or of the whole totality assembled been a wheel. have obviously test, then is the
If the of the circumstances totality distasteful it however should face our up responsibility, seem, this confession involuntary say may determination, based on frankly say “independent and we is no suitable circumstances” totality longer of volun- will make an determination only independent one, if tariness the circumstances one by examining makes then no one circumstance a confession involuntary, rule of 257 Ark. it shall be. The Degler which I was the advocate prime Vault J., concurring (Fogleman, which the 111) S.W. 2d was not screen behind adopted court could shed its duty responsibility perform in Harris. such intention is negated by assumed Any Harris, we said rеspect Degler. language be accorded to the factual determination by weight to frustrate trial cannot be independent judge permitted court determine voluntariness responsibility confession. I fear has the majority *9 forgotten. with in each cir-
I cannot the disagree majority viewing isolation, I all the cir- cumstance in but when assemble cumstances, can in a their result only totality finding logically of that the confession was totality involuntary. Viewing is in circumstances no innovation Arkansas law resulting newa of the United States Constitution from interpretation the United States Over Court. sixty years ago, Supreme 472, State, 170 582: this court said in v. 114 Ark. S.W. Dewein said, also, be that in whether a It may determining look confession is or not the court should voluntary of the accused. the whole situation and surrounding or Hence it is to consider his age, strength proper intellect, he is which weakness manner he is in con- the fact jail, everything questioned, *** nected his situation.
515
That rule has been
today.
State,
followed until
v.
See Brown
920,
15;
State,
758,
198 Ark.
132 S.W. 2d
Porter v.
206 Ark.
408;
State,
335,
177
2d
S.W.
Moore v.
229 Ark.
315 S.W. 2d
907,
946,
den. 358
79
356,
353;
cert.
S.
2d
U.S.
Ct.
3 L. Ed.
State,
631,
v.
255
Watson
Ark.
Enumerating but a of the stitute part totality virtually impossible, have critical factors times. We many spoke many spoken Stale, of thеm where Watson v. we said: supra, to be factors considered Among determining this issue and the are: the intellectual or strength age defendant, weakness of in which he manner or absence of threats harm questioned, presence (Dewein or inducements in form of favor promises State, State, 599, 65 v. 69 S.W. Williams Ark. supra; 103; State, 244, 484), Barnesv. Ark. 229 2d 217 S.W. advice of between the constitutional re delay and the of the confession. Miranda
quired by
giving
State,
16,
85;
Ark.
2d
Summervillev.
State,
484
S.W.
Scott
918,
251 Ark.
493. out to she would be Holding simple person awarded a if she confessed hav very light punishment, stolen been held has sufficient inducement to ing money, make her confession and its admission into involuntary evidence reversible error. Porter v.
516 472, State, 977; 114 Ark. v. 2038,
87
18 L. Ed. 2d
S. Ct.
Dewein
149,
State,
2d 241.
Ark.
174 S.W.
582;
v.
206
170
Mitchell
S.W.
The lack
which
be
both are circumstances
factors.
But
may
confes
to a
not a
voluntary
advice is
of
sion,
prerequisite
parental
of in
considered.
circumstance
be
Length
but
a
State,
v.
confession.
will not invalidate a
Vaughn
terrogation
cir
505,
873. But this is another
Ark.
479
2d
252
S.W.
based
Persistent
to be considered.
questioning
cumstance
officer’s
prisoner’s
assumption
upon
interrogating
confession involuntary.
will not make
resulting
guilt
abe
сan
427. It
State,
568, 156 S.W.
v.
107 Ark.
Greenwood
officer’s
circumstance. The
promise
interrogating
significant
confession,
be suf
will not
if
conditioned
to help,
upon
State,
189,
235
v.
Ark.
ficient to invalidate a confession. Hargett
State,
691,
190
533;
2d
v.
357 S.W.
Crosnoe
it is
of
625. But
circumstance. Deception by
pertinent
ficer,
alone,
invalidate an otherwise
would
standing
confession,
are not
if the means
employed
v.
calculated
an untrue statement.
Cupp,
procure
Frazier
731,
1420,
(1969);
89 S.
*** a confession obtained from defendant by Where officers, but without decep- persistent questioning kind, reward, tion, threat, inducement hope confession. is admissible a voluntary circumstances, all are When consider the totality See relevant. 2d Kasinger more, too. and cases cited. And all And are present. months of when confessed. years, age, been enrolled in the seventh He had school only through score was which he had Even though IQ grade, 99 repeated. in- score of his achievement tests composite (average), on the that he had been school only dicated performing level, and, ranked low fourth always significantly, grade “a described him as A officer reading English. police *11 little off.” He had a His apparently drugs. problem father, Guard, in a colonel had never been National mother, to his married with whom lived. mid- About Billy to night, some that his mother had Billy reported neighbors father, been killed. He called his who lived some miles away. The father did not then come because he did not recognize and call was an voice Fool” Billy’s thought “April prank. scared, An at the scene officеr described Billy frightened, and worried. concern to some of the in- upset Billy expressed officers when his father did not arrive. The father vestigating when came the coroner called him. The father found Billy distraught disturbed tried him down. “quieten” The father talked with Criminal Fogley. Investigator Doug Thereafter, father left and returned home without Billy’s him or his otherwise anyone telling Billy learning He did not learn of until arrest after suspect. confession, Billy’s Billy’s he had 6:00 remained at home until although a.m., when he went his office at North Little immediately Rock. He received no calls at either and called the place White officials after had confessed. County Billy was first at 2:25 a.m. Officer
Billy questioned Fogley who described the as follows: interrogation substantially
He ask told he wanted to him some Billy questions, then stated and his under the United rights explained States Constitution. He told it was Billy required he read the form who to be every suspect There was a lot of around questioned. quite milling officers and others the room at the time. After stating took him to room for appellant’s rights, Fogley quieter He him recalled that told that he did interrogation. not know what Billy He had come home from
happened. cards and found mother He said his dead. he playing know didn’t would kill his mother he why anybody did not know who could have done it. explaining thumb, cut on his told Officer Billy bleeding he cut his thumb Fogley on some when he first came glass room and found his mother that there was “all glass over.” He blood he said when was got clothing was con- mother. When this checking interrogation cluded, told that he would want probably to interview him later. the White County jail placed taken *12 at 4:00 a.m. therein
the juvenile quarters the scene Officer his at After investigation completing He arrived at to see the defendant. to went jail Fogley and defendant a.m. He 6:10 рhotographed fingerprinted test. trace metal detection Before and then performed of his This made, advised test was again Billy rights. Fogley to the without reference terms from was done memory lay ex- form officer on other occasions. officer used After the test would show. to the defendant what plained it a definite told showed test was Billy completed, Fogley he had found defen- He also told the defendant that pattern. on broken at the murder scene dant’s some glass fingerprint test to the results of the and and asked Billy explain fact, had not found a usable (In print fingerprint. Fogley had, it he have been of no value the broken and if would glass house.) in the testified because lived Billy Fogley and ask- then said he didn’t know what defendant happened him a then ed for a gave cigarette proceeded cigarette. Fogley he to in detail what tell the defendant thought happened said that to that time had refused Billy why. Fogley prior “buddy- he to him testified that used his tell anything. Fogley about defendant, himto talked on the technique buddy” school, to confidence. He in order gain hobbies pool The evidence at the time. said very distraught Billy which he to the he used shows that boy technique talking death,” said he love him to and which he described as “to He had him like a “dutch uncle.” have called may treating He said he wanted as a “con.” also described technique terrible, horrible “it not most to feel that thing.” Billy “a referred to the statement about He fingerprint to conversation with testified ruse.” following Fogley Billy: said, he
“Now isn’t that way happened?” said, not,” to to “No, it’s he “What is going happen to said, don’t know what me?” I I “Billy, going said, “I I I can’t make any promises.” happen you.” he said, at that time “I would like help you,” I it, know I did it when said, I did but I didn’t “All right, the house.” was оut at said he did discuss with what Billy cooperation
Fogley mean to him. He never discussed could possible never the offense and mentioned for actually punishments he in- at He said that had thereafter all. punishment over an hour before he said was for finally terrogated Billy to talk. ready 7:25
At a.m. Officer called Sheriff Woodruff to come to the defendant’s statement. The station witness the officer testified more relaxed after seemed making the statement. The recorded on standard statement was form when the does not wish make used ordinarily subject a statement. The officer it out in the interview had filled early *13 but had it aside to write that the did not put intending subject wish to make After state- a statement at that time. the giving ment and Woodruff went the defendant’s Billy, Fogley house, committed, crime where the showed Billy two them kitchen knives. The claim them he officers he told had used them the murder, in then washed and replac- ed them in a kitchen drawer. testified that he had no recollection of ad-
Billy Fogley’s him of his vising oe of making during morning, the statement. didHe recall that had asked he be he per- father, mitted to call his but that his was denied. He request also recalled off to him” аnd ask- “something Fogley reading him “if that was and his He ing “Yeah.7 right” answering, said he could not remember what read to him. whether the of the trial is determining finding judge evidence, of
clearly con- against preponderance sider elements. considerations many Appropriate determination are the and intellectual or age strength defendant, weakness of the manner in which is of or absence inducements in the questioned, presence favor, form of or of food promises deprivation sleep. State, 631, State, 609; Watsonv. 255 Ark. 2d 501 S.W. v. Perkins 201, 258 Ark. 523 2d 191. excited statements hope lenienсy by by persons an also consideration. A confession
authority important must be free from taint of official inducement
520 must be an absence of and there “flattery hope,” to the reward or advantage respect promise temporal State, Even an officer Greenwood supra. though charge. confession is no to one from whom a makes express promise that he has no to do but states authority sought so, specifically is made one who is when an statement incriminating circumstances in all the justified light feeling an conditioned there was promise lеniency, upon implied confession, the statement must be held Freeman involuntary. State, State, 617, 909; Ark. Sullivan 506, S.W. 828. confidence,
After the officer’s assurance that he inspiring un- would like to well have been taken an help Billy might counselled, as youth mentality sleepless, distraught Billy’s that some be gained by promise advantage might confessing was not In view a crime he had been led believe so serious. of the that the officer the evidence fact deceived Billy committed, it and narrated his version of how the crime was for was reasonable to believe that incriminating evidence him wаs against overwhelming. Fogley’s assump- tion that his manner of know guilty letting Billy belief, that, the use of a “ruse” to including emphasize in view of and mentali- Billy’s youth significant, particularly 904; Hardin v. 48 S.W. Porterv. ty. 408; *14 177 Ark. Ark. S.W. 2d Brown v. 132 State, also, S.W. 2d 15. v. See Sullivan supra. and in the factors involved here weighing determining circumstances,
whether, on the totality finding overturned, the trial court must be not what must forget State, we said in Smith v. viz: We realize the difficulties en- encountered lawby nature, forcement officers in cases particular- those officers who have felt it was a of their duties ly part to solve crime. However new lines in this reported guide field have been in courts announced recent years by which often borderline but we feel it present questions, our to resolve doubtful in favor of in- duty questions dividual and their constitutional rights safeguards. one in to make a to influence deception custody Using statement critical matter considering propriety State, manner of v. Brown Greenwood interrogation. supra. even more of facts becomes supra. Misrepresentation amiable, when it an significant, accompanied by only but a constant also sympathetic paternal approaсh reminder of the crime and evidence him. Brown incriminating When I view the of the circumstances totality supra. Smith, I can conclude that the only apply precepts erroneous, trial because of judge’s finding appellant’s time, his low his lack of at the his dis- mentality, age, sleep condition, the manner in which the advice of traught used in the state- technique obtaning given, false confidence in the ment interrogator, inspiring in- use of false statements about the results of the officer’s the detailed recitation of the officer’s vestigation, concept what had to make used happened, persuasion appellant serious, believe that the crime was not and the lack of counsel, in the of the failure of guidance particularly light the officer to inform father that the Billy’s boy suspect- ed.
If we are to abandon the determina- ready independent voluntariness, tion of according appropriate weight of the trial consideration to the findings judge, respectful standard, which favor of the evidence would substantial per- in favor of mit all reasonable inferences resolving possible will See I J., concurring, finding, Fogleman, protest. I do 2d 111. Vault object that result erosion. reaching authorized to state that Mr. am joins I Holt Justice
this opinion.