Brown v. State

• Decision Date: 26 April 1982
• Docket Number: No. CR,CR
• Citation: 276 Ark. 20,631 S.W.2d 829
• Parties: Don BROWN, Appellant, v. STATE of Arkansas, Appellee. 81-127.
• Court: Arkansas Supreme Court

Page 829

631 S.W.2d 829

276 Ark. 20

Don BROWN, Appellant, v. STATE of Arkansas, Appellee.

No. CR 81-127.

Supreme Court of Arkansas.

April 26, 1982.

James W. Russell, West Memphis, for appellant.

Steve Clark, Atty. Gen. by Victra L. Fewell, Asst. Atty. Gen., Little Rock, for appellee.

HICKMAN, Justice.

Don Brown was convicted of aggravated robbery with a deadly weapon and sentenced to fifty years imprisonment. On appeal he raises two issues. First, he argues the court was wrong in granting a mistrial in the presence of the jury and dismissing two co-defendants from the trial. Second, he argues the court was wrong in admitting his confession because it was involuntary, taken after an undue delay and an illegal arrest. We find no error and affirm the judgment.

Brown, along with two other men, Edward Brown and Johnnie Glenn, was tried for the robbery of the Majik Market in West Memphis, Arkansas, which occurred on December 4, 1980. During closing argument, counsel for Brown pointed out to the jury that Brown was the only defendant who had taken the witness stand. At this point counsel for the other two defendants asked for a mistrial and it was granted. There was no objection to the motion for a mistrial, no exceptions to the judge's ruling, and no request for an admonition. It is suggested that we should apply the plain error rule in this case and take into consideration the fact that the jury only had one of the three defendants before it and took its wrath out on this defendant. There is no evidence whatsoever to support that supposition. Brown's counsel brought this matter about. No objection was made and without any showing of prejudice, we find no error in the court's action.

The second issue requires more discussion. The court held a Denno hearing and heard testimony of various police officers and witnesses regarding the circumstances that led to Brown's arrest, his incarceration, and his admission that he was involved in the Majik Market robbery. The West Memphis police department was investigating another robbery concerning the A-1 Liquor Store. A victim of that robbery had identified the appellant as the robber and the police obtained a warrant for Brown's arrest. When Brown went to the police station to obtain his automobile, which had been confiscated, they arrested him for this robbery. He was advised of his rights twice according to the police and at first denied complicity in the A-1 robbery. Later, on Sunday, the officers said that Brown confessed to both the Majik Market robbery and the A-1 robbery. They testified that the confession was voluntarily given without any coercion on their part. On the basis of this confession they caused an information to be filed against Brown for the Majik Market robbery. Two witnesses who saw the Majik Market robbery told the police that Brown was one of the robbers. The witnesses said that they did not immediately identify Brown when they were questioned by the police but later did identify him. This all occurred during the weekend Brown was in jail. Brown testified that he was physically and mentally intimidated during his incarceration, threatened, and awakened early Sunday morning and questioned again.

It is unnecessary to elaborate in detail all the testimony of the police officers and Brown. Suffice it to say the trial court held a Denno hearing and found that the officers had probable cause to arrest Brown and that the statement was not involuntary. On appeal we make an independent determination of voluntariness of a confession. We consider the totality of the circumstances and will resolve all doubts in favor of individual rights, but we will not reverse the trial court's holding unless it is clearly against the preponderance of the evidence. Degler v. State, 257 Ark. 388, 517 S.W.2d 515 (1974). In this case there was a conflict between the testimony of Brown and the police officers and we have to defer to the superior position of the trial court to resolve the issue of credibility of the witnesses. Gardner v. State, 263 Ark. 739, 569 S.W.2d 74 (1978).

Certainly we cannot say it is reversible error that Brown was not arrested for the Majik Market robbery until after he confessed. There is no doubt that a warrant was issued for his arrest in connection with the A-1 robbery and he was arrested and incarcerated for that offense. He was in custody at the time he was placed under arrest for the Majik Market robbery and an information was caused to be filed against him for that offense. Even if the arrest was illegal, and we in no way deem it so, it would not vitiate his confession. Sanders v. State, 259 Ark. 329, 532 S.W.2d 752 (1976).

It is undisputed that Brown was held from late Friday afternoon through the weekend before he was taken before a magistrate on Monday morning. A.R.Cr.P., Rule 8.1 requires that an arrested person be taken before a magistrate without unnecessary delay. We cannot say on the facts in this case that Rule 8.1 was violated. See Wilson v. State, 258 Ark. 110, 522 S.W.2d 413 (1975), cert. denied 423 U.S. 1017, 96 S.Ct. 451, 46 L.Ed.2d 389 (1975).

PURTLE, J., dissents.

PURTLE, Justice, concurring in part; dissenting in part.

I concur with that portion of the majority opinion which holds that the granting of a mistrial in the presence of the jury as to the codefendants did not amount to prejudicial error. However, I disagree with the holding which allows appellant's confession to be introduced into evidence.

I feel a few more facts need to be set out in order to present a fuller understanding of what happened in this case. The Majik Market Store and the A-1 Liquor Store were both robbed on December 4, 1980. Three witnesses observed the robbery at the Majik Market. The manager of the Majik Market could not identify the robbers nor...