Cagle v. State, CA

• Decision Date: 30 January 1980
• Docket Number: No. CA,CA
• Citation: 267 Ark. 1145,594 S.W.2d 573
• Parties: Dennis Earl CAGLE, Appellant, v. STATE of Arkansas, Appellee. CR 79-109.
• Court: Arkansas Court of Appeals

Page 573

594 S.W.2d 573

267 Ark. 1145

Dennis Earl CAGLE, Appellant, v.STATE of Arkansas, Appellee.

No. CA CR 79-109.

Court of Appeals of Arkansas.

Jan. 30, 1980.

Rehearing Denied March 5, 1980.

Released for Publication by the Court of Appeals March 5, 1980.

Michael E. Surguine, Newport, for appellant.

Steve Clark, Atty. Gen., by Robert J. DeGostin, Jr., Asst. Atty. Gen., Little Rock, for appellee.

PILKINTON, Judge.

AppellantDennis Earl Cagle and another person were charged by information with the offense of Criminal Attempt to Commit Burglary and Theft, on or about the 12th day of December, 1978, by cutting the screen and partially opening a window of a house belonging to Harry McAdams, Jr., in Newport, Arkansas.Appellant requested, and the court granted, a separate trial.

Cagle also filed a motion to suppress any statements taken from him while in custody.Pursuant to Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908(1964), an in-chambers hearing was held on that motion before appellant's trial began.The court denied appellant's motion to suppress.

A trial by jury was held.In addition to other testimony, the State introduced into evidence a confession made by the defendant three days after his arrest.The jury returned a verdict finding Cagle guilty as charged.He was sentenced to six years imprisonment.He appeals contending that the trial court erred in admitting his confession into evidence.

On the afternoon of December 12, 1978, Roger Brand returned to his home, looked across the street at the McAdams house and noticed two people trying the windows and door of the house.Brand then saw the two running through the McAdams back yard, and then through a graveyard beyond.Moments later, Brand and McAdams confronted Cagele and Ronnie Gates in the graveyard.Police officers arrived and arrested the two suspects.The officers then returned to the McAdams house where they discovered the screens on one of the windows had been cut, the window was partially opened, and there were some puncture holes on the insulation surrounding the window.Appellant Cagle had a large "Buck" knife in his possession at the time of his arrest.

At the Denno hearing, the State had the burden of showing that appellant's confession was made after a voluntary, knowing and intelligent waiver of the right to remain silent.Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694(1966).

The proof offered by the State at the hearing revealed that appellant was arrested on December 12, 1978.Immediately upon his arrest, Officer Jerry Long read to appellant his constitutional rights from a so-called Miranda Warning Card, which the officers kept for that purpose.When the officer and appellant arrived at the station house at approximately 5:20 p. m. on the same day, Officer Long advised appellant of his constitutional rights a second time.Appellant declined to make any statement at that particular time.Appellant was placed in jail, and three days later Officer William Cardwell removed appellant from his cell and took him to the officer's office.Cardwell advised appellant of his rights, and then asked if he wished to make a statement.Appellant said that he did, and the statement was taped.After the tape was replayed for appellant, a transcript of the statement was typed.Officers Long and Cardwell were present when the statement was made.Chief Wilson was in an adjoining office.

The issue on appeal is whether the trial court properly found, based on the totality of the circumstances, that appellant's confession was voluntary and hence admissable into evidence.Degler v. State, 257 Ark. 388, 517 S.W.2d 515(1974).

In the case before usappellant's confession was given without counsel.Therefore, the proper test is whether appellant was effectively warned of his rights and knowingly and willingly decided to waive them.United States v. Harden, 480 F.2d 649(8th Cir.1973).The trial court found that appellant did so waive his rights.He was under no disability.Appellant testified at trial that his rights were explained to him before the confession was given, and the transcript of the confession bears this out.There was no contention at trial, nor is it argued on appeal, that appellant was not advised of his rights or that he failed to understand these rights although appellant did not sign a written waiver form.However desirable it is to obtain a written waiver of rights, failure to do so does not invalidate a voluntary confession where there is no contention that the rights were not explained or understood.

Relying on his own testimony at trial, appellant contends that the Newport Police officials used psychological coercion to wring the confession from him.Whether such psychological coercion exists is determined by weighing all the circumstances surrounding the confession to resolve whether the circumstances of pressure overbears the power of resistance of the accused.Matthews v. State, 261 Ark. 532, 549 S.W.2d 492(1977).

The evidence presented revealed that appellant was 18 years old and had completed the eighth with passing marks.A review of appellant's testimony at the Denno hearing and at the trial gives no indication that appellant suffered from any mental disability, and none is claimed.The testimony shows that appellant is of average intelligence and has a good command of the English language.The record also reveals that appellant was no stranger to the criminal justice system, having been convicted of a prior felony offense.It is clear to us that appellant had the mental capacity and experience to understand, appreciate and intelligently waive his constitutional rights.But appellant contends his will was overborne by alleged attacks on his accomplice and threats to file a possession of marijuana charge against him, by alleged threats to file a possession of marijuana charge against him, and by an alleged threat that the officers would see that he received a twenty year sentence on the present charge.Officers Cardwell and Wilson specifically denied that any such threats were made or that coercion was present.Mr. Ralph Black, who was appellant's probation officer, testified that no such threats occurred while he was present.The confession itself reveals that no threats or promises were made.

The testimony of appellant that the officers used coercion is not entitled to more weight than the testimony of the officers that they did not.Smith v. State, 256 Ark. 67, 505 S.W.2d 504(1974).See alsoDecker v. State, 255 Ark. 138, 499 S.W.2d 612(1973).In such casesthe trial court determines the credibility of the witnesses.Gardner v. State, 263 Ark. 739, 569 S.W.2d 74(1978).

Custody alone is not sufficient to render invalid an otherwise voluntary confession.The record shows that on the third day of his incarceration, appellant was advised of his Miranda rights a third time, and was confronted with a .45 caliber pistol which had been stolen.At that time appellant voluntarily made the confession which was subsequently admitted into evidence at his trial.The trial court found that he was not acting under fear or coercion.

We have considered the nature of the questioning, the length of interrogation, the manner in which the warnings were given, and all testimony, factors, and circumstances which would have any bearing on appellant's allegation of deception, coercion or inducement.In other words, we have carefully reviewed the total circumstances surrounding the confession of appellant and have concluded that the trial court's finding of voluntariness is not against the preponderance of the evidence.Degler v. State, supra.

Appellant also contends that all material witnesses to the confession were not present at the Denno hearing.The evidence presented at this hearing reveals there were four material witnesses to appellant's confession.These were Jerry Long, William Cardwell, Gary Wilson and Ralph Black.Except for the appellant, no other persons were present during the taking of the confession or immediately prior thereto.However, appellant says that another person was a material witness.He testified that two days before making his confession, an unidentified jailer "jumped on"Ronnie Gates, his accomplice.Appellant further testified that Officer Gary Wilson threatened appellant after the unidentified jailer's attack on Gates.As already noted, Wilson was presented and testified at the Denno hearing and denied that any threats were made.

In Bushong v. State, 267 Ark. 113, 589 S.W.2d 559(1979), the Arkansas Supreme Court said:

(T)here must be some connection between the witness and the alleged acts of coercion or an opportunity to observe the alleged coercion.

There is insufficient evidence in this record to connect the alleged acts of the unidentified jailer to the confession which occurred two days later.We are persuaded that all material witnesses to appellant's confession were present at the Denno hearing as required by law.Bushong v. State, supra.

Finding no error, the judgment of the circuit court is affirmed.

HOWARD, NEWBERN and HAYES, JJ., dissenting.

HOWARD, Judge, dissenting.

I am unable to join the majority in affirming appellant's conviction because I am persuaded that the trial court erred in finding appellant's purported confession free and voluntary.The State's evidence falls short of establishing the voluntariness of the statement by a preponderance of the evidence.

During the Denno hearing, appellant was requested to relate those things that happened, while he was in jail, that "made you feel like you had to make a statement, that you had to confess?"

In reply, appellant said:

A.A couple of days before I made them statements, Ronnie Wayne Gates got jumped on by the jailer, and Wilson said if I am going to have to let one of the guilty ones go to get you, Cagle, I will.He said myself, I think you was hired to come to my town and...