Addison v. State

• Decision Date: 20 February 1989
• Docket Number: No. CR,CR
• Citation: 765 S.W.2d 566,298 Ark. 1
• Parties: Tony ADDISON, Appellant, v. STATE of Arkansas, Appellee. 87-176.
• Court: Arkansas Supreme Court

Page 566

765 S.W.2d 566

298 Ark. 1

Tony ADDISON, Appellant, v. STATE of Arkansas, Appellee.

No. CR 87-176.

Supreme Court of Arkansas.

Feb. 20, 1989.

Jerry Sallings, Deputy Public Defender, Little Rock, for appellant.

Olan W. Reeves, Asst. Atty. Gen., Little Rock, for appellee.

HOLT, Chief Justice.

In three separate trials which have been consolidated for this appeal, appellant Tony Addison was convicted of three counts of rape, three counts of burglary, one count of robbery, and one count of theft of property and sentenced to a total of life plus 200 years. For reversal he argues that the trial court erred in refusing to suppress certain custodial statements made to police in that these statements were taken in violation of the fifth amendment; that it erred in refusing to suppress the statements, photographs of him, and in-court identifications because this evidence was taken in violation of the fourth amendment; and that his due process right to a fair trial was denied in that his trial proceeded despite there being a bona fide question as to his mental fitness. We find no error and affirm the trial court.

In September, October, and November of 1986, four women were raped in the area of Little Rock known as the Quapaw Quarter. Officers who patrolled the area were given a description of the suspect based upon various victims' reports: black male, 5 feet 6 to 5 feet 8 inches tall, 135 to 160 pounds, in his twenties, a large nose, a "Jeri curl" (a wet, curly hairstyle), and wearing a gold chain.

At 10:40 p.m. on December 5, 1986, Officer Ken Blankenship, while driving in the same general area in which the rapes had occurred, spotted Addison, who fit the general description of the suspect, crossing a street. The officer turned around, stopped Addison, and noticed he wore a gold chain and had a large nose and a "Jeri curl," which was straightening out. Addison did not have any identification, gave the officer several reasons for being in the area, and could not tell him at which address he just had been. As the officer was talking with Addison, two other officers, who were on patrol in the area, walked up and also questioned him. Officer Blankenship told him that he fit the description of the rape suspect and that he was in the same area at the same time in which the rapes had occurred. The officer then asked him if he would mind going to the police station's detective division. Addison replied that he had "no problem with that" and asked if the officers would take him home later. Blankenship responded they would do so as soon as they got through with him. None of the officers informed him that he had no legal obligation to go to the station or that he was not under arrest. From the time that the officers first talked to Addison until the time he was transported to the police station was approximately fifteen to thirty minutes.

Upon Addison's arrival at the station at around 11:00 p.m., Detective Ronnie Smith advised him that he was there voluntarily. Smith then questioned him concerning the series of rapes. The only statement that he gave at this time was that he did not rape anyone. Thereafter, Addison agreed to be fingerprinted and photographed. He was then taken home. During the one-hour period in which Addison was at the station, he was never told that he was free to leave or that he was not under arrest.

Subsequently, police officers took a photo spread, which included Addison's photograph, to one of the victims, who positively identified Addison as her attacker. After an arrest warrant was prepared, the police arrested him at 1:35 a.m. at his home. The police advised him of his rights via a standard Little Rock Police Department advice of rights and waiver form. Thereafter, the police took him to the station. From approximately 2:00 until 5:30 a.m., Addison confessed to the crimes in separate signed statements, each preceded by a standard rights warning. Later in the day, he was identified by the victims in a live lineup.

FIFTH AMENDMENT RIGHTS

Addison contends that his statements should have been suppressed on the grounds they were taken in violation of his fifth amendment rights under the United States Constitution as (1) the rights warning Addison signed the following rights waiver form before each of his confessions was taken:

failed to inform him that he could have an attorney present even if he could not afford one and (2) under the totality of the circumstances, the statements were not freely and voluntarily given. We hold to the contrary.

I, Tony Addison, date of birth 01/23/67, now live at 2910 Fulton. I have been advised that I am a suspect in a rape, that I have the right to use the telephone, that I have the right to remain silent, that I have the right to talk to an attorney, either retained by me or appointed by the Court, before giving a statement, and to have my attorney present when answering questions. I have also been advised if I waive these rights, I have the right to stop the interrogation at any time. Also, that any statement I give will be used in a Court of Law against me. I have read the above statement of my rights and I understand them. No promises or threats have been made to induce me into making a statement.

In Mayfield v. State, 293 Ark. 216, 736 S.W.2d 12 (1987) (U.S. appeal pending), we held that an almost identical waiver form was deficient in that it did not advise the appellant that if he were indigent, he could have a lawyer free of charge. However, failure to give an appropriate warning does not automatically require reversal. In his motion to suppress, Addison did not question the sufficiency of the rights form. Rather, he asserted that his statements were not freely and voluntarily given after an intelligent waiver of his constitutional rights. Since this matter is being raised for the first time on appeal, we will not consider it. See Barnes v. State, 294 Ark. 369, 742 S.W.2d 925 (1988).

In determining whether Addison's statements were voluntarily and freely given, we make an independent review of the totality of the circumstances and will reverse only if the trial court's findings are clearly against the preponderance of the evidence. Hurst v. State, 296 Ark. 448, 757 S.W.2d 558 (1988); McDougald v. State, 295 Ark. 276, 748 S.W.2d 340 (1988); Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988). The burden is on the State to show that the confessions were made without hope of reward or fear of punishment. Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987). Conflicts in testimony are for the trial court to resolve as it is in a superior position to determine the credibility of witnesses. Id.

Pursuant to the "totality of the circumstances" approach, we focus on two basic components: the conduct of the police and the vulnerability of the accused. Scherrer, supra. Some of the factors that we consider in making the determination of whether a confession was voluntary include the youth or age of the accused, lack of education, low intelligence, lack of advice as to constitutional rights, length of detention, repeated and prolonged questioning, and use of physical punishment. Id.; Jackson v. State, 284 Ark. 478, 683 S.W.2d 606 (1985).

Addison was nineteen at the time that he gave the statements and was able to read and write. Although he testified that he signed the statements because he was forced to and did not know he had a choice, Detective Smith testified there was no force or coercion used in the questioning process. The record is devoid of any evidence that the police punished or threatened to punish Addison, promised him leniency if he cooperated, or deceived or tricked him in any way. Although the questioning process lasted approximately three hours, this was justified considering the number of offenses to which Addison confessed.

We are troubled by the fact that law enforcement personnel continue to utilize standardized warning forms which fail to clearly advise a suspect that he has a constitutional right to have an attorney free of charge if he cannot afford one. Although lack of advice of constitutional rights is a significant factor in our determination of whether a confession was voluntary under the "totality of the circumstances" test, it is not determinative. A confession As noted above, the officers did not use physical force, threats of physical force, or deceit to obtain the statements, nor did they promise Addison leniency if he cooperted. In addition, there is no indication from the record that Addison was inordinately vulnerable. On balance, we cannot say that the trial court's finding that the statements were freely and voluntarily given is clearly against the preponderance of the evidence.

can be voluntary even if Miranda warnings were omitted. See Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1971). See also Dillard v. State, 275 Ark. 320, 629 S.W.2d 291 (1982).

FOURTH AMENDMENT RIGHTS

Addison argues that the trial court erred in refusing to suppress his custodial statements, photographs of him, and incourt identifications by the victims on the basis that they resulted from an unlawful stopping and subsequent custodial detention in violation of his fourth amendment rights. It is his contention that these pieces of evidence were tainted fruit of the illegal stopping and detention under Wong Sun v. United States ,371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), and inadmissible. We disagree.

The fourth amendment guarantees the right of people to be secure against unreasonable searches and seizures. A person has been "seized" within the meaning of the fourth amendment only if, in view of all the circumstances, a reasonable person would have believed that he was not free to leave. United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). Burks v. State, 293 Ark. 374, 738 S.W.2d 399 (1987). A seizure pursuant to an arrest or any other detention that severely intrudes...