Boyd v. State

• Decision Date: 08 November 2017
• Docket Number: No. CR–17–372,CR–17–372
• Citation: 534 S.W.3d 732
• Parties: Michael L. BOYD, Appellant v. STATE of Arkansas, Appellee
• Court: Arkansas Court of Appeals

534 S.W.3d 732

Michael L. BOYD, Appellant

v.STATE of Arkansas, Appellee

No. CR–17–372

Court of Appeals of Arkansas, DIVISION I.

Opinion Delivered: November 8, 2017

Michael Boyd, pro se appellant.

Leslie Rutledge, Att'y Gen., by: Brooke Jackson Gasaway, Ass't Att'y Gen., for appellee.

ROBERT J. GLADWIN, Judge

Michael Boyd appeals the Pulaski County Circuit Court's order denying his Rule 37 petition for postconviction relief. Ark. R. Crim. P. 37.1 (2016). We assumed jurisdiction of this appeal pursuant to footnote 1 in Barnes v. State , 2017 Ark. 76, 511 S.W.3d 845 (per curiam). Boyd contends that (1) the circuit court erred in denying his petition because it failed to appoint him counsel for his Rule 37 proceeding, (2) trial counsel was ineffective for allowing the redaction of his taped confession to be played for the jury, (3) trial counsel was ineffective for failing to present evidence to establish his innocence, and (4) trial counsel was ineffective for failing to call multiple witnesses to prove his innocence.

Boyd was convicted by a Pulaski County jury on charges of aggravated robbery and theft of property and was sentenced to thirty and ten years of imprisonment, respectively, to be served consecutively.¹ On appeal, he contended that the circuit court committed reversible error by denying (1) his motion for a directed verdict, (2) his motion to suppress statements made by him in a police interview, and (3) his motion to suppress a photo identification of him made by a bank teller.

The incident that led to these charges allegedly occurred at approximately 4:15 p.m. on September 13, 2013. A man entered a North Little Rock branch of Bank of the Ozarks with what appeared to be a handgun tucked into his waistband, demanded money, took $4,000 of the bank's money, and left in a car that was described by bank tellers. Boyd was stopped in his vehicle approximately an hour after the armed robbery. He had a similar appearance to the suspect, both as described by bank tellers and as seen in the bank-surveillance video. Boyd agreed to an interview at the police station and waived his Miranda rights. During the interview, he made several incriminating statements, including admitting (1) having visited three banks that day, (2) having been at the bank that was robbed, (3) having what he described as a "fake" gun, and (4) having taken money from a bank teller. Boyd's attorney filed a pretrial motion to suppress his statements asserting in part that they should be suppressed because the officer promised leniency to obtain Boyd's custodial statements, thereby rendering them involuntary.

At the hearing on Boyd's motion to suppress, Detective Michael Gibbons testified that he was the officer who interviewed Boyd. He explained that he read Boyd his Miranda rights, that Boyd told him that he understood his rights, and that Boyd said that he wanted to waive his rights to give a statement. Detective Gibbons stated that the interview lasted more than an hour. Detective Gibbons testified that although Boyd repeatedly asked whether he could receive a bond on the charges, he never promised Boyd a bond, explaining that Boyd had not yet been charged. Detective Gibbons testified that he told Boyd that if a gun was not used or if it was not real, then the crime would be considered robbery, a charge where a bond was possible, but that a bond was not possible for aggravated robbery. Detective Gibbons stressed that Boyd was "all about getting a bond, no matter what the charge was," but he reiterated that he told Boyd that he would not lie and tell him he could go home. Detective Gibbons acknowledged that he falsely told Boyd that seven people had identified him as the robber and that traffic cameras had footage of his vehicle at the scene. Detective Gibbons explained that he did not threaten Boyd in order to obtain his confession. Additionally, he testified that Boyd had numerous prior offenses and extensive experience with the criminal justice system—including having his Miranda rights read to him—and had been to prison numerous times for felony convictions. Detective Gibbons pointed out that Boyd confessed during the interview that he went into the three banks that day (two Metropolitan Bank branches and the one Bank of the Ozarks branch), that he had a mask on, that he had a fake gun with him, and that although he denied pulling the gun out, a bank teller gave him the money.

Boyd's counsel argued that this confession was involuntary because it was the product of Detective Gibbons's false promise of leniency. The State argued that there was no promise, much less a clear promise, of obtaining a bond for Boyd, and that Detective Gibbons repeated that he could not make such a promise. The State argued that, under the totality of circumstances with this criminally experienced defendant, suppression of the statement was not warranted. The circuit court denied Boyd's motion to suppress, and a written order to that effect was subsequently filed.

Boyd also filed a pretrial motion to suppress the evidence of a photo identification made by witness Kathryn Pannell, alleging that the lineup shown to her was unduly suggestive. There were two written orders filed prior to trial denying this motion, but the circuit court agreed to consider the motion again during the trial.

At trial, the State presented proof that a man matching Boyd's description had entered two Metropolitan Bank locations that day before entering the nearby Bank of the Ozarks branch, where the robbery in question took place. North Little Rock police officer Kasey Knight responded to the report from a Metropolitan Bank of a "suspicious male" who came in wearing a dust mask, sunglasses, and a hat, and who was acting "kind of odd." Officer Knight viewed bank-surveillance video, which led him to broadcast to other officers that they should be on the lookout for an approximately thirty-year-old black male.

Sholanda Jenkins, a bank manager at that Metropolitan Bank branch, testified as to her description of the suspicious male. She explained that she had asked him to take off the dust mask, but he refused, stating that he had the flu. She verified a still photo of the man who had been in the bank that day as shown on bank-surveillance footage.

A bank teller from that same Metropolitan Bank branch, Kathryn Pannell, testified that, while she was on a break, she observed Boyd without his mask on just before he entered the bank. She also observed his vehicle and license plate and reported to police that it was a black Toyota with license-plate number 198 SRG. She confirmed that Boyd became agitated when he was unable to persuade the bank tellers to provide him a cash advance on a card that did not bear his name. She testified that employees locked the bank door after Boyd left, that Boyd attempted to re-enter the bank, but that he left instead. Ms. Pannell stated that she then called the police. Ms. Pannell identified Boyd in the courtroom, stating that she was "100% sure" that Boyd was the man in the still photographs that showed a full-length color picture of Boyd in the bank lobby. She said that he had the mask in his hand before he put it on and that he told her that he had the flu as he walked into the bank. Ms. Pannell said that when he was inside the bank, the mask kept slipping down and that Boyd would have to put it back up.

Ms. Pannell had previously identified Boyd out of a six-person photo lineup when presented with it about four months after the robbery. She explained that the detective never suggested whom she should pick out, and she stated that she did not have any doubts about her recognition of Boyd in the photos. She testified that her job is in customer service and that she remembers people. Boyd renewed his motion to suppress the photo-lineup identification made by Ms. Pannell. His counsel complained that Ms. Pannell did not identify Boyd until months after the robbery; that her identification was based on her brief observation of Boyd; and that the lineup was unconstitutionally suggestive. The State responded that this was a "very good lineup" of similar-looking men and that there was nothing suggestive about it. The circuit court rejected the motion, standing by its earlier ruling.

The State called employees of the robbed Bank of the Ozarks branch, located on Camp Robinson Road. Sharon Erwin, one of the bank tellers, testified that the perpetrator had entered the bank wearing a black shirt, a black hat, dark sunglasses, and a white surgical mask. Ms. Erwin said that she knew something was not right. She testified that she overheard the man demand $10,000 from another teller, Pam Buzbee, who was in the window next to her. After Ms. Buzbee refused and told the man to take off his mask, the man told Ms. Buzbee that he had the flu, called Ms. Buzbee "a bitch," lifted his shirt, showed the gun, and finally pulled the gun out and waved it around. Ms. Erwin testified that Ms. Buzbee was hesitant to give the man money, so she pulled out two straps of $100 bills that contained a total of $4,000 and tossed them in the window. Ms. Erwin said that she saw the man's face as he pulled his mask back and put it back on; the man then took the money and left. Ms. Erwin explained the bank-surveillance video footage as part of her testimony. She did not positively identify Boyd in court as the man in the bank that day, but she verified that the surveillance video was accurate.

Another bank employee, Greg Smith, was working the drive-through window that day. He testified that he heard the interaction and someone say, "He has a gun," but he did not observe the robbery. Mr. Smith saw the perpetrator get into his car to leave, and he could describe the license plate. Another bank employee, Chris Abbot, testified about observing the robbery, specifically hearing the man call Ms. Buzbee a "stupid bitch," and seeing Ms. Erwin throw the money toward the man before he left.

Detective Cody Brown detained Boyd...