Bell v. State

Decision Date08 December 1975
Docket NumberNo. CR,CR
PartiesAnthony BELL and Michael Walker, Appellants, v. STATE of Arkansas, Appellee. 75--122.
CourtArkansas Supreme Court

Greene, Cottrell, Craig & Cloar by Ralph M. Cloar, Jr., Little Rock, for appellant Bell.

Garner Taylor, Little Rock, for appellant Walker.

Jim Guy Tucker, Atty. Gen., by Jackson Jones, Asst. Atty. Gen., Little Rock, for appellee.

ROY, Justice.

Appellants in this appeal, Michael Walker and Anthony Bell, were arrested on September 25, 1975, and charged with the murder of Marcelia L. Dillman which occurred during the course of a robbery. The State waived the death penalty. A jury found appellants guilty of first degree murder and they were sentenced to life imprisonment.

For reversal appellants rely upon several points. One assignment of error by both appellants is their assertion that they were entitled to separate trials either as a matter of right or because of the facts and circumstances of this particular case. Ark.Stat.Ann. § 41--4702 (Supp.1973) designates as a capital felony 'the unlawful killing of a human being when committed in the perpetration of * * * robbery.'

Ark.Stat.Ann. § 43--1802 (Repl.1964), in part relevant to appellants' contention, provides that 'when two (2) or more defendants are jointly indicted for a capital offense, any defendant requiring it is entitled to a separate trial . . ..' In Vault v. Adkisson, 254 Ark. 75, 491 S.W.2d 609 (1973), it was pointed out that an appellant can invoke the procedure of a separate trial 'as a matter of right' only when 'the accused upon conviction is subject to the imposition of the death penalty.' Here the State waived the death penalty, a step which forecloses Walker's plea for severance as a matter of right.

The alternative reason given by appellants for severance is that under the circumstances of this case it was an abuse of discretion for the trial court to refuse to grant severance because of the cross implicating aspect of their confessions.

Michael Walker's statement was that he, Tony Bell and Wesley Long were riding around with some other 'dude' and they were talking about robbing a store. Wesley told the 'dude' to pull into the side of a store and the others got out while he (Walker) stayed in the car. Tony Bell was standing not far from the corner of the store and the other two went inside. He heard a shot from the store; then the others returned to the car. While driving home Wesley Long divided up the money and Tony Bell got some and he (Walker) got about $40.

Anthony Bell's statement was essentially the same except he stated that while riding around they 'decided' to rob a store; identified the store as the Magic Market; Wesley Long got Mike's gun and that he (Bell) stayed outside the store as lookout. After the shot the three ran and got in the car and on the way home they split the money, of which he received about $60 or $70 and Mike got about the same amount. Wesley told him a few days later the woman in the store had died.

In Mosby v. State, 246 Ark. 963, 440 S.W.2d 230 (1969), the problem of cross- implicating confessions was raised, and we held that the unfairness inherent in such confessions could be avoided by either the granting of a separate trial or by deletion of the offending portion of the confession. The appellee made such deletions here. However, on cross- examination the State used undeleted confessions in the form of questions for the purpose of impeaching the credibility of the appellants, both of whom voluntarily took the stand. The trial court admonished the jury to consider these questions and answers as going only to credibility of appellants. Since both appellants testified the device of cross-examination enabled the appellants to avail themselves of every opportunity to refute any testimony adverse to their position. This satisfies the requirements of Bruton v. U.S., 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), in that confrontation is assured by virtue of the fact that here, unlike the situation in Bruton, both appellants had the opportunity to cross-examine on any information contained in the confessions. See also Miller v. State, 250 Ark. 199, 464 S.W.2d 594 (1971). This same reasoning controls Appellant Walker's contention that the trial court erred in denying his motion for a mistrial based upon the reading of Appellant Bell's statement, which mentioned Walker, during the State's cross-examination of Bell. The trial court warned the jury that such a statement could not be used in assessing guilt but only in assessing Bell's credibility. Appellant Walker was able to counter the contents of the statement by his own testimony.

In United States ex rel. Duff v. Zelker, 452 F.2d 1009 (2nd Cir. 1971), cert. denied 406 U.S. 932, 92 S.Ct. 1807, 32 L.Ed.2d 134 (1972), the court applied the rule on interlocking confessions and said:

We reject appellant's claim that the admission of the written statements of Ferguson and Hill violated the rule of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). The statements were similar to Duff's own confessions, written and oral, which placed him at the scene with a fair implication of knowing participation. When the defendant's 'confession interlocks with and supports the confession of' the co-defendant, there is no violation of the Bruton rule.

The Zelker case is quoted with approval in our case of Stewart & McGhee v. State, 257 Ark. 755, 519 S.W.2d 733 (1975), cert. denied --- U.S. ---, 96 S.Ct. 113, 46 L.Ed.2d 86 (1975).

Both appellants contend that their confessions were secured through coercion and were thus inadmissible. The standard controlling voluntariness of a confession has been expressed by this court in several cases. See Watson v. State, 255 Ark. 631, 501 S.W.2d 609 (1973); Harris v. State, 244 Ark. 314, 425 S.W.2d 293 (1968) and Mitchell v. Bishop, 248 Ark. 427, 452 S.W.2d 340 (1970). Our latest expression of the test to be employed when involuntariness of confession is at issue is found in Degler v. State, 257 Ark. 388, 517 S.W.2d 515 (1974). There we said that:

. . . (I)n each case we will make an independent determination based upon the totality of the circumstances and that the trial judge's finding of voluntariness will not be set aside unless it is clearly against the preponderance of the evidence, which we take to be the same standard of review as the 'clearly erroneous' rule followed by the federal courts. (citations omitted)

The burden is on the State to demonstrate that the confessions herein were 'freely and understandably made without hope of reward or fear of punishment.' Harris, supra. In determining the voluntariness of an in-custody statement we have suggested that the following factors be considered:

. . . (T)he age and the intellectual strength or weakness of the defendant, the manner in which he is questioned, the presence or absence of threats of harm or inducements in the form of promises or favor (citations omitted), and the delay between the advice of constitutional rights required by Miranda and the giving of the confession. (citations omitted)

Watson, supra.

One of the officers advised Appellant Walker that he would be better off if he made a statement--'got it off his conscience'--or words to this effect. However as in Degler, supra, there was no showing of how it would help and no offer of leniency or promise of favors, so this statement alone would not invalidate the voluntariness of the confesson.

In accordance with the mandate of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), the trial court conducted a hearing out of the presence of the jury and determined the appellants' confessions were voluntary.

Appellants contend their confessions were extracted by physical brutality in the case of Michael Walker and psychological inducement in the case of Anthony Bell. The detectives involved in the actual interrogation deny having used any force on the appellants in order to secure a confession. The trial judge heard the testimony of the witnesses and observed their demeanor on the witness stand, an opportunity denied us as we review the cold record. Applying the guidelines articulated in Watson, supra, we cannot say that the appellants were not possessed of sufficient age or intellect to enable them to perceive and understand both the nature of the charge against them and the rights to which they were entitled concerning recourse to counsel. Both signed statements reflecting their understanding of the fact that they were to be provided counsel if they so desired at any time during the proceedings.

In Evans v. State, 251 Ark. 151, 471 S.W.2d 346 (1971), the court said:

It is a firmly established rule of law that a defendant can intelligently waive his constitutional right to counsel. (citing cases)

Appellants Bell and Walker were 19 and 18 years old respectively at the time the confessions were made and both could read and write. Detective Thomas testified Bell told him that he had been to the eleventh grade, and Wllker testified that he had a twelfth grade education. They were apprised of their constitutional rights and stated that they understood and voluntarily waived them.

In contrast to appellants' allegations of physical abuse and psychological pressure Detectives Rounsavall, Harrison, Thomas and Best emphatically declared that no undue pressure or device was used to secure confessions from appellants.

Their interrogation was intermittent and lasted approximately four hours. There was some dispute as to whether appellants were shown a photograph of the victim and a statement by Long implicating them prior to their confessions. None of these circumstances, however, should call for suppression of these confessions. In Vaughn v. State, 252 Ark. 505, 479 S.W.2d 873 (1972), the trial court's determination that a confession was voluntarily given was upheld...

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