Clark v. State

• Decision Date: 25 September 2008
• Docket Number: No. CR 07-1276.,CR 07-1276.
• Parties: Anna CLARK, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

287 S.W.3d 567

374 Ark. 292

Anna CLARK, Appellant, v. STATE of Arkansas, Appellee.

No. CR 07-1276.

Supreme Court of Arkansas.

September 25, 2008.

John Wesley Hall, Jr., Little Rock, AR, for appellant.

Dustin McDaniel, Att'y Gen., by: Kent G. Holt, Ass't Att'y Gen., for appellee.

ANNABELLE CLINTON IMBER, Justice.

Appellant Anna Clark appeals from her conviction of two counts of sexual assault in the third degree. She asserts five points on appeal: (1) the standard of review applied by this court to a trial court's ruling on the voluntariness of a confession does not comport with the standard of review set forth in Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); (2) the circuit court erred in failing to suppress Appellant's confession; (3) the circuit court erred when it declined to recognize Appellant's right under the Arkansas Constitution to a recording of the entire interrogation; (4) the circuit court erred in failing to give Appellant's proffered non-Arkansas AMI Criminal instruction on the jury's duty to determine the credibility to be given to a defendant's confession; and (5) the circuit court erred in failing to hold AMI Criminal instruction 110, the reasonable-doubt instruction, unconstitutional under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and in failing to give Appellant's proffered instruction on reasonable doubt. Because this case involves the interpretation and construction of the United States and Arkansas Constitutions and the appeal presents issues of first impression and issues of substantial public interest, which need clarification or development of the law, our jurisdiction is pursuant to Arkansas Supreme Court Rule 1-2(a)(1) and (b)(1), (3), (4) and (5) (2008). We find no error and affirm the judgment of conviction.

Appellant was employed in early 2006 by the Arkansas Department of Correction as a psychologist and one of her patients was inmate Dan Burns. On April 17, 2006, a correctional officer, Latasha Robinson, discovered Appellant having sexual intercourse with Burns in her counseling office. Warden Gaylon Lay interviewed Appellant shortly after the alleged incident. At that point, she denied the allegations. Then, in a subsequent interview conducted by Detective Kenneth Whitmore on April 18, 2006, she admitted the allegations. The detective did not record the entire interview; rather, the interview began around 3:15 p.m. and the recording of the confession did not start until 4:30 p.m. No one else was present in the interview room. In a separate interview, inmate Dan Burns admitted the allegations. By felony information, Appellant was charged with two counts of sexual assault in the third degree. She eventually filed a motion to suppress claiming that her confession was involuntary and the product of false promises. Appellant further argued that the State failed to rebut the presumption of involuntariness due to the lack of a complete recording of the entire interview, as required by article 2, section 8 of the Arkansas Constitution. Following a hearing, the circuit court determined that the statement was freely and voluntarily given and denied the motion to suppress.

At trial, Appellant proffered two jury instructions. One proffered instruction advised the jury that it was the sole judge of the weight and credibility to be given to the defendant's confession. The second proffered instruction added the following sentence to AMI Criminal 2d 110: "You must be convinced to [a] state of near certainty of the guilt of the accused." The circuit court refused to give either of the above proffered instructions.

At the conclusion of the trial, Appellant was convicted of both counts of sexual assault. She was sentenced to three years in the Arkansas Department of Correction and fined five thousand dollars on each count.

I. Standard of Review — Determination of Voluntariness of a Confession

For her first point on appeal, Appellant argues that our standard of review for a trial court's determination on the voluntariness of a confession does not comport with the standard of review set forth in Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). Specifically, she claims we have not engaged in a truly "independent review" as required by the U.S. Supreme Court in Ornelas v. United States, in that we apply a clearly erroneous standard of review to both the trial court's findings of fact and its determination of voluntariness.

The Supreme Court held in Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), that determinations of reasonable suspicion to conduct an investigatory stop and probable cause to perform a warrantless search should be reviewed de novo on appeal; in conducting a de novo review, the reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by judges and law enforcement officers. The Court further held that the principal components of a determination of reasonable suspicion or probable cause will be the events that occurred leading up to the stop or search, and then the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion or to probable cause. Id. The first part of the analysis involves only a determination of historical fact, but the second is a mixed question of law and fact. Id.

In support of her argument that this court is constitutionally mandated to apply the Ornelas standard of review when we review a trial court's determination on the voluntariness of a confession, Appellant relies upon the Supreme Court's decision in United States v. D.F., 517 U.S. 1231, 116 S.Ct. 1872, 135 L.Ed.2d 169 (1996). The Court in that case directed the Seventh Circuit Court of Appeals to reconsider the voluntariness of a defendant's confession in light of Ornelas v. United States. Id. The Seventh Circuit subsequently held in United States v. D.F., 115 F.3d 413 (7th Cir. 1997), that the concept of voluntariness is governed by Ornelas v. United States. Under the Ornelas standard, the determination of the historical facts of the case are the proper domain of the trial court and appellate review of its findings in that regard will be for clear error; whereas, the ultimate question of whether a confession is voluntary is a matter of law that must be reviewed de novo. Id. We note that an earlier line of federal cases addressing the voluntariness of a defendant's confession reflects a continuous invocation of the de novo standard of review and a reliance on the same considerations that informed the Court's decision in Ornelas. See, e.g., Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985); Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978).

The federal de novo standard of review, however, has not been made binding on the states in cases where the voluntariness of a confession is at issue. Neither Ornelas nor Miller held that such a de novo review is constitutionally required under either the Fourth Amendment or the Fifth Amendment to the United States Constitution. See Ornelas v. United States, supra; Miller v. Fenton, supra. Several other states have reached a similar conclusion. See State v. Ford, 144 N.H. 57, 738 A.2d 937 (1999); State v. Brockman, 339 S.C. 57, 528 S.E.2d 661 (2000); State v. Jenner, 451 N.W.2d 710 (S.D.1990), cert. denied, 510 U.S. 822, 114 S.Ct. 81, 126 L.Ed.2d 49 (1993); State v. Jackson, 82 Wash.App. 594, 918 P.2d 945 (1996). We therefore conclude that we are not constitutionally mandated to apply the Ornelas standard of review when considering the voluntariness of a defendant's confession.

While this court is not constitutionally bound to apply the Ornelas standard of review in determining the voluntariness of a confession, our standard for reviewing a trial court's determination of voluntariness is consistent with the requirements of Ornelas. Upon appeal, we make an independent determination based upon the totality of the circumstances. Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003). The ruling will be reversed if it is clearly against a preponderance of the evidence, id., which "we [have] take[n] to be the same standard as the `clearly erroneous' rule." Degler v. State, 257 Ark. 388, 392, 517 S.W.2d 515, 518 (1975). Any conflict in the testimony of different witnesses is for the trial court to resolve. Cox v. State, 345 Ark. 391, 47 S.W.3d 244 (2001); Riggs v. State, 339 Ark. 111, 3 S.W.3d 305 (1999). In essence, this court reviews the trial court's findings of fact for clear error, and we make an independent, or de novo, determination of voluntariness. Indeed, it should be noted that when determining the voluntariness of a confession, our court has frequently applied a two-prong analysis similar to that set forth in Ornelas. See, e.g., Reese v. State, 371 Ark. 1, 262 S.W.3d 604 (2007); Pratt v. State, 359 Ark. 16, 194 S.W.3d 183 (2004); Standridge v. State, 357 Ark. 105, 161 S.W.3d 815 (2004); Bunch v. State, 346 Ark. 33, 57 S.W.3d 124 (2001); Hood v. State, 329 Ark. 21, 947 S.W.2d 328 (1997); Esmeyer v. State, 325 Ark. 491, 930 S.W.2d 302 (1996); Jackson v. State, 284 Ark. 478, 683 S.W.2d 606 (1985).

We now take this opportunity to reiterate that in cases involving a ruling on the voluntariness of a confession, this court makes an independent determination based upon the totality of the circumstances. We review the trial court's findings of fact for clear error, and the ultimate question of whether the confession was voluntary is subject to an independent, or de novo, determination by this court.

II. Motion to Suppress

For her second point on appeal, Appellant asserts that her confession was involuntary and the product of false promises. Based upon that assertion, she contends that the trial court erred in...