Conner v. State
| Decision Date | 08 October 1998 |
| Docket Number | No. CR,CR |
| Citation | 334 Ark. 457,982 S.W.2d 655 |
| Parties | Corey Jermo CONNER, Appellant, v. STATE of Arkansas, Appellee. 97-1426. |
| Court | Arkansas Supreme Court |
W. Ray Nickle, Jonesboro, for Appellant.
Winston Bryant, Attorney General, Kent G. Holt, Assistant Attorney General, Little Rock, for Appellee.
The appellant, Corey Jermo Conner, was sentenced to life imprisonment without parole for the capital murder of Darrell Robinson. On appeal, Conner challenges the sufficiency of the evidence to support his conviction, the denial of his motion to suppress two custodial statements, the court's refusal to read a non-model instruction on accomplice liability, and the effectiveness of his trial counsel. We affirm on all points.
On July 18, 1996, Darrell Robinson was shot and killed on Winchell Street in West Memphis. One witness, Michael Cox, saw Conner and two other males fire multiple gun shots at Robinson. Sometime later that evening, Conner voluntarily appeared at the police station where he was arrested and charged, as an adult, with capital murder.
The next day, July 19, 1996, Conner turned seventeen years old. Around 10:00 that morning, Conner executed a form waiving his Miranda rights and gave a tape-recorded statement to Detectives West and Burch. At the time, Conner weighed approximately 220 pounds, stood 6'3", was in the tenth grade, and had no prior experience with the criminal-justice system. During the questioning, Detectives West and Burch used the "good cop" "bad cop" method to elicit information from Conner. Detective West falsely claimed that four or five witnesses reported seeing Conner with a gun at the time of the shooting. Conner contended that neither he nor his two friends fired shots at the victim. After warning Conner that only one of the three defendants would be able to obtain a plea bargain, Detective Burch, the "bad cop," made the following statements:
[D]o you know what will happen if you are proven guilty of capital murder? ... They strap you to a table and stick a needle in your arm and you go to sleep and you never wake up, that's what happens, and I don't believe a damn thing you've said since you started opening your mouth, you follow me?
* * *
We can save your life, we can save your life. We can be responsible for strapping you on the table, it's up to you. Now if you want to get a little smart between your ears, and start telling the truth, as you see it, then Eddie and I can work with you and save your life. I am not promising you, but we can work with you and I am a man of my word and I won't break it, you follow me?
* * *
I can be the most meanest son of a bitch that you ever walked across, and I don't believe what you are saying.
* * *
The others, are going to burn, bubba, they are going to burn in hell, they are going to be strapped to a damn table, a damn needle stuck in their arm, and they are going to be gone, your chance, I am going to offer it to you, you blow it, you ain't getting another one, because I got a whole lot to do today, and I am not going to set up here and plea with you to save your life, do you follow me?
* * *
Last chance, no more. Now, Eddie, I am a son of a bitch, do you follow me? I will give you a chance, now I'll bust my ass to help you if you try to help yourself. You don't, I'll burn your ass in a heart beat, that's the way I am, that's the way I work.
* * *
As far as I am concerned, you're a damn murderer. You deserve to be strapped to a table and stick a needle up your arm. If this new Huckabee have his way, your new governor, he's going to reinstate the electric chair, he ain't going this way no more. That's one of Huckabee's promises for law and order. I want to hear the truth. Start from the time that you got on Winchell Street and what took place, because I want to know, I want it hear it from your mouth.
After hearing these comments, Conner did not change his statement.
After the interview, which lasted from 10:07 to 10: 33 a.m., Conner was placed in a holding cell where he made several phone calls. During this time, Conner spoke to his friend, Andrew McDaniel, who urged Conner to tell the truth. Around 1:30 or 2:00 p.m., Conner asked to speak with Detective West. Detective West brought Conner back to his office to make a second recorded statement. Detective Burch was not present, and Detective West did not repeat the Miranda warnings. During this second statement, Conner admitted that he had a gun but claimed that he ran away without firing a single shot as soon as the shooting began. Although Conner claimed that he threw the gun in the river by Airport Road, the police were unable to retrieve the gun. Conner completed his second statement at 2:50 p.m.
Conner and two others were subsequently charged with capital murder. Conner was tried separately, and a jury found him guilty of premeditated and deliberate capital murder. Because the State waived the death penalty, the court sentenced Conner to life imprisonment without parole.
Conner raises four issues on appeal, including his third argument that there was insufficient evidence to support his conviction of capital murder. As we have said previously, double jeopardy considerations require us to consider a challenge to the sufficiency of the evidence prior to all other arguments asserted on appeal. Britt v. State, 334 Ark. 142, 982 S.W.2d 655 (1998); Welch v. State, 330 Ark. 158, 955 S.W.2d 181 (1997).
At the conclusion of the State's case-in-chief, Conner made the following motion for a directed verdict:
Your Honor, I would ask at this time since the State has rested, that a directed verdict be granted to the defendant. Based on the sum of the evidence presented, there would be no way that reasonable minds could differ as to the guilt or innocence of this defendant, and I ask for a directed verdict.
At the conclusion of all evidence, Conner renewed his motion for a directed verdict with the following statement:
Your Honor, at this time I would ask for a directed verdict based upon the evidence brought before the court, including the State's case in chief as well as the defense's presentation. There is no way reasonable minds could differ as to the guilt or innocence of Mr. Conner, and I would ask the Court direct a verdict.
In order to preserve a challenge to the sufficiency of the evidence, an appellant must make a specific motion for a directed verdict which advises the trial court of the exact element of the crime that the State has failed to prove. Fultz v. State, 333 Ark. 586, 972 S.W.2d 222 (1998); Dulaney v. State, 327 Ark. 30, 937 S.W.2d 162 (1997). In contrast, a general motion that merely asserts that the State has failed to prove its case is inadequate to preserve the issue for appeal. See, e.g., Crisco v. State, 328 Ark. 388, 943 S.W.2d 582 (1997) (); Lovelady v. State, 326 Ark. 196, 931 S.W.2d 430 (1996) (). As in Crisco and Lovelady, Conner made a general motion for a directed verdict asserting that the State failed to prove its case. Accordingly, we hold that Conner's sufficiency challenge is not properly preserved for appeal.
Next, Conner makes four arguments in support of his contention that the trial court erred when it denied his motion to suppress his two custodial statements.
First, Conner argues that the trial court should have suppressed his statements because his mother did not consent to his waiver of his right to counsel, nor was she present during the questioning. Arkansas Code Annotated § 9-27-317(a)(3) (Repl.1998), provides that during "a delinquency or family in need of services hearing" a parent or guardian must consent to the juvenile's waiver of his or her right to counsel. We, however, have clarified that this statutory provision applies only when the individual is charged in juvenile court, and not when he or she is charged as an adult in circuit court. Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996), cert. denied, --- U.S. ----, 117 S.Ct. 246, 136 L.Ed.2d 174 (1996); Sims v. State, 320 Ark. 528, 900 S.W.2d 508 (1995). Because Conner was charged as an adult in circuit court, the police were not required to obtain parental consent to the waiver of his right to counsel.
In contrast, Ark.Code Ann. § 9-27-317(g)(2) provides that, "[n]o law enforcement officer shall question a juvenile who has been taken into custody for a delinquent act or criminal offense if the juvenile has indicated in any manner that he ... [w]ishes to speak with a parent or guardian or to have a parent or guardian present." (Emphasis added.) Thus, unlike the right to parental consent to a waiver, a juvenile has the right to speak to a parent or have a parent present during questioning in juvenile and criminal proceedings. See Isbell v. State, 326 Ark. 17, 931 S.W.2d 74 (1996). The juvenile, however, and not the parent or guardian must invoke this statutory right. Id. Although there is evidence in the record that Conner's mother requested to speak to her son, there is no evidence that Conner himself invoked his statutory right to have a parent or guardian present during questioning. Accordingly, we find no merit to this point on appeal.
Next, Conner contends that his statements should have been suppressed because they were not the product of a knowing and intelligent waiver of his Miranda rights. As we have explained in the past, the relevant inquiry here is whether Conner waived his rights with "full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." Smith v. State, 334 Ark. 190, 974 S.W.2d 427 (1998); Sanford v. State, 331 Ark. 334, 962 S.W.2d 335 (1998). We make this determination by reviewing the totality of the circumstances surrounding the...
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