*1
Arkansas
v. STATE of
Rodney Dewayne WILLIAMS
CR 83-94
Oрinion [Supplemental Opinion Rehearing February on Denial of 1984.*] Purtle, rehearing. Hollingsworth, J., JJ., grant *Smith would participating. *2 for appellant. D.
Larry Vaught, Powell, Gen., Clark, by: Atty. Leslie M. Asst. Atty. Steve Gen., appellee. Williams, Rodney Appellant, Hays, Steele Justice. convictions, convicted of the several felony
having of Hoyt first murder Green and robbery aggravated life imprisonment, each and sentenced on sentence. For with the murder sentence robbery merging rеversal, evidence that was error to admit Williams argues statements and to admit two custodial of an unrelated crime 8,1982 him, later one on May first on and a May given by and, we accordingly, are without merit arguments 14. The the trial affirm court. 7, 1982, Mrs. May on the of evening
At about 8 o’clock the rear her at by gunman Nobles was accosted Patricia Street, Rock, as she returned Little home at W. 29th containing robbed of her purse, She was shopрing. cash, the robber into a get cards and and she watched credit she recog- After Williams was arrested colored Buick. light him she identified at trial him in a line up firmly nized her. the man who robbed later, approached Green Hoyt minutes About thirty Street 11thW. in his yard two men as worked he money men demanded Rock. At gunpoint, Little resisted, killed him. The them shot and one of Green when description matching in vehicle men drove away two found were Nobles. Coins in the of Mrs. robbery the one used as the scattered some were near the Green and body Hoyt waiting man car. ran to following 11 o’clock around was arrested
Williams warnings that the Miranda no There is morning. argument him. At 9 fully explained were they not given; were denying a statement Williams evening gave o’clock that murder, admitting that but Green the Hoyt connection with Mrs. Nobles. had robbed companions two to discuss Ivan called Officer On Williams Jonеs who lawyer, to reach Williams’ charges. attempted Jones unavailable, ahead go said he wanted and Williams be Lloyd attorney present. and asked that a prosecuting accompanied Prosecuting Attorney, Haynes, Deputy Jones *3 to a statement give offered to the where Williams county jail, if not be with charged Green he would Hoyt concerning then a statement that and murder. He capital felony gave as yard they two had Green the companions Hoyt seen said he and another passenger got drove around. Williams resisted, to when Green the out of the car rob Green and fired to they other man shot him. Other shots were ran the car. The 8 and the 14 statements were admitted May May evidence over defense objections. the challenged grounds:
The
14 statement
is
on
May
b)
Williams’
was
and
statement
a)
lawyer
present
that
not
lesser
in rewаrd for a
to
given
bring
charge.
is attacked because of Williams’
May
age,
The
intellect,
interrogated.
limited
and
over
apprehension
being
that
arrested at
points
The
out
Williams was
10:30
argument
until
that
a.m. and did not
a statement
9:05
give
evening.
As
our
not sufficient.
required
The
are
arguments
515 (1974);
law
Ark.
[Degler
case
v.
S.W.2d
(1975)],
we
Freeman v.
S.W.2d 909
the omnibus
have reviewed the circumstances developed
satisfied the
relative to
two statements
are
hearing
were
findings
they
the trial court’s
evidence supports
old and
years
given
twenty-two
Williams was
voluntarily.
He
had
education.
high-school
obtained the
of a
equivalent
procedures,
could not have
with police
been unfamiliar
warnings
The Miranda
having previous felony convictions.
him,
he confirms. He was
which
to
given
were repeatedly
testimony
in fact
lengthy interrogation,
not
subjected
8th,
on the
until 9:00 p.m.
that he was
questioned
robbery
аdmitting
the statement
gave
and promptly
having
to his
reference
is a passing
Mrs. Nobles. There
(which
interrogation
at the
8May
his lawyer
wanted
issue, if it has
this
but it
clear
address)
does not
appellee
hence,
and,
court
merit,
to the trial
was not first presented
Meyers
v.
reversal.
support
will
Williams
v.
on
there
With
to the statement
respect
the omnibus
which
hearing
supported
was proof
waived the
right
the trial court
that Williams
finding by
have counsel
present by initiating
interrogation
was not then
insisting
meeting
though
lawyer
on a
even
his
this issue
testimony
available. Williams did not refute the
on
Under such
agree
and we
the trial
findings
judge.
circumstances,
it was not
wrong
Haynes
Jones
meet with
the absence of his lawyer.
proof
Williams
the meeting,
that Williams
undisputed
instigated
In Edwards his
was not available.
knowing
lawyer
Arizona,
reviewed
451 U.S.
the case of
the waiver of
established
warnings
Arizona,
Miranda (1966), stating:
Nor can the that the statement was argument return for reward or be sustained. The promise applicable State, in law is summarized Davis v. Ark. S. W.2d 1 (1982): argu- of appellant’s suppression
The second prong main officer first, of the the statement components, of the totality on a basis at the case-by-case by looking If a police circumstances. The law applicable simple. which misleads a promise official makes a false and the a confession because prisoner, gives prisoner not been that false then the confession has promise, In made. voluntarily, knowingly intelligently whether there has been a determining misleading of reward we look of the promise totality circumstances. The is subdivided into two totality first, main the statement of the officer compopnents, second, of the defendant. vulnerability Here the was neither false nor an inducеment He was not enticed “the of Williams’ 14 confession. or excited of reward from flattery hope”, by prospects those He conceived the idea and initiated the authority. where he a statement return for meeting proposed give an assurance that would be with first charged Nothing suggests murder. statement was extorted State, Williams false v. promises. See Dewein 114 Ark. no claim his S.W. Williams makes false, statement was or that he was misled by Haynes fact, for, In state delivered what he asked exactly Jones. contrast to the circumstances in Tatum v. where (1979), an officer who had promised S.W.2d 957 accused, do all he could did or Freeman help nothing; where (1975), life after was the got being years accused told that twenty-one receive; most he or would Hardin v. 66 Ark. received the death told that being
where Hardin after penalty murder would follow. second-degree cites Hickey Finally, appellant *5 Ark. 266 223 (1978) S.W.2d Alford of the that proof for the argument (1954) S.W.2d
“unrelated” of Mrs. Mattie Nobles should not have robbery We cannot permitted. say of the trial court finding on this issue was so clearly its exclusion wrong require under R. Unif. Evid. 403. The two men who accosted Mr. fled Green the scene in a light colored Buick which exactly matched the automobile Mrs. Nobles saw Williams get into Moreover, after she was robbed. the two closely сrimes were time, and, related location in method of especially, i.e., both crimes occurred as others operation, Williams and drove around in an area simply aimlessly adjacent generally Avenue, until Wright what deemed to be they spotted they ects for likely subj We think there is robbery. value probative in the evidence which it within the brings of Unif. R. scope Clines, Evid. 404. See et al v. S.W.2d 684(1983). is affirmed. the sentences on judgment
The Purtle, dissents. J., Purtle, I. Justicе, I dissenting. disagree John
majority opinion
because I think the statement of May
should have been
excluded. It is basic that in order for a
confession to be admissible it must be given freely and
and must
voluntarily
not have been extracted
threats or
violence nor by direct or implied
Rose,
promises. Hutto v.
U.S.
(1976);
States,
Bram v.
United
promise reward, which does make than if a more of reward had given kept. case, at the time In either the statement hoping expecting accused is for and a reward. The fact the that the reward was leaves no doubt but expectation gave the statement with the against reduced, him would be and it was. Supplemental Opinion Rehearing on Denial of February 13,
delivered 97-A *7 Appellant’s petition for rehear- Hays, Justice. Steele
ing opinion (Williams 13,1983, insists that our of December (1983) in two erred S.W.2d 700 respects: assuming appellant, in that it the and not the proposed state, charge exchange who a lesser in for his disregarding confession and in the law that a confession by promise may against obtained a of reward not be used a position defendant. But we adhere to our on both counts unmistakably because the record shows the that it was — apрellant proposal who initiated the Detective Jones testimony s,tands testified unrefuted, to that his effect and correctly applied. However, and we think the law was supplemental opinion we believe a is in order since an important point fully involved, of law is and was not developed opinion. in our first
When the voluntariness of a confession is raised on
appeal,
independently
we
review the circumstances in their
entirety
trustworthy.
to determine whether the confession is
say
state,
The burden rests on the
but unless we can
the trial
clearly
determining
preponderance
court
erred in
the
of the
evidence,
we will affirm. Davis v.
314,
S.W.2d (1968). single supporting appellant’s Here, circumstance admittedly agreed position charge appellant agreement having lies in state’s to in first murder return for his with Hoyt give a statement about Green However, murder.1 mаkes a that fact itself is what confession unreliable. An of all the attendant examination surrounding circumstances includes those circumstances essentially he and a com an admission that 1Appellant’s confession was him, appellant having pistol; that Hoyt approached Green to rob panion resisted, gun running companion took the started but the the two when Green appellant, went back and shot Green.
97-B agreement the factors are all this one. When such as voluntarily that the confession was considered, conclude we lengthy subjected 1) given: appellant not been had May briefly questioned interrogation, and not on he was 2) appellant meeting 14; again requested until he evidently lawyer, counsel, not without he had a was retained, 3) him; though chose to meet without 4) repeatedly appellant; warnings were read Miranda was givе appellant proposed a that he who conceived and exchange degree murder; of first 5) agreement appellant had not at the time the was reached charged suspect; murder, been 6) he was at most a the Green agreement police, who are was not reached with the overstepping sometimes restraints of the accusedof the strict law, but with of more than a seasoned twenty years 7) appellant office; did not affiliation mistakenly rely promise (in to his detriment on false opinion contrast to the cases cited in our of December p. 95), kept bargain the state 8) finally, notably, appellant it; benefited does *8 hope giving claim he was lured into a of reward false gave statement, thus, the truth of the statement he under utterly unchallenged oath to the remains by him. applicable facts is examined
When thе case law to these correctly applied we think was it has the confession properly appellant admitted. The fact that it was who proposal key initiated the seen is a factor and one which has been by many significantly courts as different from the opposing proposal situation, where the state initiates the beguile suspect. it to and uses S.E. 450 In v. Whitworth 117 (1923), Supreme Georgia tjie Court of said that the hope of reward which will exclude a confession bemust one which another holds out to the accused to recently it. elicit More upholding
that same court observed a confession hope not induced of benefit for the confession was proceeded officers, In but from the accused himself. (1945) App. State, hope 237, Foster v. Ga. 33 598 72 S.E.2d originates said, person “A or fear which in the mind of making originates the confession and which planting needs of his will not exclude confession.” own Appeals if the defendant The Kansas Court of has said that 97-C been the victim have claim to he cannot promise,
solicits the 340, Baker, Kan. App. 4 2d v. influence. State compelling 302, Pean, 19 Wis. v. La 247 In State 120 606 P.2d upheld the Wisconsin N.W.2d those resembling closely on circumstances reduced from the charge to have The accused asked hand. he would officer said degree. murder to third frist dеgree accompanied who then with the prosecutor, take it up defendant’s the proposal, jail, agreed officer to the Other cases and upheld. was obtained written confession 452, 114 Ariz. Jordan, v. P.2d effect are: State the same Crim. App. (Ala. So. Eakes v. 2d (1976); Nicholas, 169 Cal. 3d App. v. Cal. 1978); People App. 2d Coddington, v. 123 Ill. (1980); People Rptr. 497 Hubbell, App. v. 54 Cal. 2d (1970); People 259 N.E.2d Sourisseau, Cal. App. v. 2d (1942); People 128 P.2d Nunn, Or. P.2d State P.2d 356 (1958). that assertion any
Nor is there him into a statement. lured of a lesser charge false its bargains the plan defendant conceives Where wrongfully he now claims in return for what acceptance into he was coaxed obtained, him to show it is incumbent on true. This is the position was not a statement giving Nunn, the test supra, In State in other jurisdictions. taken the accused be, held out to the inducement was said confession, for the fair risk of a such that there is false truth, but exclude a confession of the rule is not to object from one who of guilt of a confession to avoid the possibility is, the methods used “Whether innocent. The issue fact v.W. guilt,” acknowledgment an untrue produced [R. and, “Were *9 (1975)] Ga. 674 App. 135 218 S.W.2d untrustworthy in an to result such as the circumstances G.G.P., Dist. (Fla. Interest So.2d 128 confession.” 382 [In of said, Pean, court the supra, In State v. La Ct. App. 1980)]. is this was obtained only “The whether question to make an untrue which induced by promises [the accused] also United States v. untrustworthy or confession.” See State, F. and Greenwood v. Gorayska, Supp. (1979) 482 576 (1913). Ark. 568 the entire review independent an made Having 97-D court, we are unable to the trial presented circumstances evidence, trial court’s the the that on preponderance say knowingly confession was made that the findings voluntarily clearly is erroneous.
The for petition denied. rehearing Purtle would Rose Smith and George Justices John grant petition for rehearing. P. A. Hollingsworth participating. Justice I with the disagree I. Justice, dissenting. Purtle, John 14, May I the statement of because think majority opinion in have It is basic that order for a should been excluded. be it must be given freely confession to admissible must not have been induced threats or voluntarily by Ross, nor direct or Hutto v. promises. violence implied States, v. United U.S. Bram U.S. State, (1897); Freeman v. 527 S.W.2d Also, the burden of that a custodial statement was proving upon rests the state. Freeman v. Scott supra; Ark., 918, 699 (1972). he would like that police notified the
The appellant attorney in the of the make statement presence prosecuting officers, heard from attorney. and his own Not the having to the same effect the next appellant made another call of This call resulted the statement 1982. day. deputy prosecutor, officer and the According In return for the was not available. appellant’s attorney was reduced from charge against murder to It was admitted murder the first capital degree. and the officer incriminating reduced statement. exchange cites Davis v. majority in the The Davis
(1982)
precedent
opinion.
opinion
“A statement induced
fear or
of reward is
hope
stated:
Also
in the
was a
voluntary.”
included
Davis opinion
quotation from Tatum v.
reward. aWhen a told he would help involuntary. (1972). could, him all that he we held the confession to be
Shelton v.
A in to be be order must freeand voluntary; any is, that must not extracted sort be of by any violence, nor threats or obtained direct or implied promises, slight, however nor the exertion any improper influence ... A confession can never prisoner be in received evidence where the has been by any promise; influenced threat or law fоr the cannot upon used, the upon measure force of the influence or decide prisoner, its effect mind of the and therefore degree excludes the declaration if has of influence added.) (emphasis been exerted. 168 atU.S. 542-543. This is not a new standard. has It existed since the adoption of the Constitution of the United It has been States. Brady supra; Ross, in followed such cases as Hutto v. Payne States, Arkansas, United 397 U.S. and U.S. repeat I feel constrained to attorney appellant’s 14th was in the absence known exchange promise (before the confession was given) capital to reduce the murder first possible penalty murder. The is the difference prison. difference between Read the the death life following question defense counsel and answer taking statement, decide officer and then whether was
97-F *11 charge. lighter hope givеn of a as a result of promises Any or coercion used or threats Question: get the statement? him to make — — Haynes told when he was Mr. This is the Answer: capital felony, charge him with him that he would not only. first him with that would by majority thing is the not noticed One other little undisputed before the statement in the record that statement custody, appellant taken, while he was 8th was of requested attorney presence his but was refused. Obviously attempts adopt majority opinion the view clearly totality reveal the of the circumstances improperly guilty if the even confession adversely argument in the This has been decided introduced. Payne supra. Arkansas, case first decided v. This case Payne court, 910, State, Ark. our own v. United was allowed. The confession 312 States suppose
Supreme and I Court corrected this court then again.
it will do it citing majority opinion avoids I note with interest the opinions. Have we United States right ignore again? sо, our own have no Even we seceded theoretically people guarantees which our constitution right among against themselves, other not to be witnesses very things. held that on numerous occasions This court has punishment or or in fear hope excluded. should be of reward supra; State, State, Ark. v. Teas v. 587S.W.2d Davis supra; State, (1979); supra; State, v. Freeman v. Tatum (1975); State, Smith Ark. Northern v. S.W.2d482 (1973); v. Shelton v. S.W.2d Bishop, supra; v. Mitchell (1914); 114Ark. S.W. 582 Dewein 156S.W. 427 Greenwood only foregoing which are decisions a fewof our own are opinion. by majority partly overruled
at least rehearing. grant petition I would