377 S.W.3d 222 (Ark. 2010), CR 09-833, Talley v. State
|Docket Nº:||CR 09-833.|
|Citation:||377 S.W.3d 222, 2010 Ark. 357|
|Opinion Judge:||RONALD L. SHEFFIELD, Justice.|
|Party Name:||Myka TALLEY, Appellant, v. STATE of Arkansas, Appellee.|
|Attorney:||Jason Lee Horton, Texarkana, AR, for appellant. Dustin McDaniel, Atty. Gen., Christian Harris, Little Rock, for appellee.|
|Case Date:||September 30, 2010|
|Court:||Supreme Court of Arkansas|
Rehearing Denied Oct. 28, 2010.
This appeal arises from the conviction and sentence of appellant Myka Talley in Miller County Circuit Court for seven counts of rape and one count of kidnapping. Talley was convicted by a jury and sentenced to serve eight consecutive life sentences. On appeal, he claims that the circuit court erred in denying his motion to suppress DNA evidence allegedly obtained in violation of his Fifth Amendment right to counsel and right to remain silent; that his consent to the DNA test was coerced through police violations of his Fifth Amendment right to counsel and right to remain silent; and that the circuit court erred in allowing two police officers to testify at trial as to comments made by the victim. Because this is a capital case involving a sentence of life in prison, our jurisdiction is pursuant to Rule 1-2(a)(2) of the Rules of the Arkansas Supreme Court. We affirm.
I. The DNA Evidence
On the night of July 4, 2008 and into the morning hours of July 5, 2008, a woman was repeatedly and violently assaulted and raped in her home by an intruder who held her against her will. She eventually escaped and fled across the street where she was able to call the police. A subsequent investigation led police to arrest Talley. He was taken to an interrogation room and was given a Miranda rights form. Talley acknowledged that he understood his rights but refused to sign a waiver of those rights. He then invoked his
right to remain silent.1
Police then ceased asking Talley about the crime but did ask him to submit to a DNA test. Talley remained silent and did not respond. After the police requested a DNA sample two more times, he responded, " Y'all are going to get it anyway, right?" Police then took a buccal swab from Talley's mouth. A comparison of DNA collected from the victim with the sample obtained from Talley determined within all scientific certainty that the DNA was a match. 2
Prior to trial, on March 17, 2009, Talley filed a motion to suppress the buccal swab, and the subsequent test results, alleging that they were obtained in violation of his rights under the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and the corresponding Articles under the Arkansas Constitution. Talley also argued that any DNA results should be suppressed as tainted " fruits" of those violations. At a March 23, 2009 suppression hearing, Talley argued that by continuing to interrogate him after he invoked his right to counsel and right to remain silent, the police coerced him into consenting to a DNA sample.
On appeal, Talley relies on Arkansas Rule of Criminal Procedure 4.5, which states that " [n]o law enforcement officer shall question an arrested person if the person has indicated in any manner that he does not wish to be questioned, or that he wishes to consult counsel before submitting to any questioning." Ark. R.Crim. P. 4.5 (2010). Talley further cites Wedgeworth v. State, for the proposition that " [o]nce a defendant invokes his Fifth Amendment right to counsel at a custodial interrogation, the police may not interrogate him further until counsel is provided, or until the defendant initiates further communication." 374 Ark. 373, 377, 288 S.W.3d 234, 237 (2008).
The circuit court denied the motion to suppress, finding that: (1) a request for, and the taking of, a DNA sample is not a violation of the Fifth Amendment; (2) the appellant's consent to the DNA sample was voluntary under the totality of the circumstances; and (3) the DNA evidence would have been...
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