Duncan v. State, CR

• Decision Date: 23 March 1987
• Docket Number: No. CR,CR
• Citation: 291 Ark. 521,726 S.W.2d 653
• Parties: Samuel Davis DUNCAN, Appellant, v. STATE of Arkansas, Appellee. 85-228.
• Court: Arkansas Supreme Court

Page 653

726 S.W.2d 653

291 Ark. 521

Samuel Davis DUNCAN, Appellant, v. STATE of Arkansas, Appellee.

No. CR 85-228.

Supreme Court of Arkansas.

March 23, 1987.

Achor & Rosenzweig by: Jeff Rosenzweig, Little Rock, for appellant.

Steve Clark, Atty. Gen. by: Mary Beth Sudduth, Asst. Atty. Gen., Little Rock, for appellee.

HAYS, Justice.

While investigating a disturbance on March 4, 1985, Pine Bluff police officer John Fallis was shot and killed. The next day Samuel Davis Duncan was arrested and charged with the murder of Officer Fallis. Duncan was found guilty of capital felony murder and sentenced to death by lethal injection. He raises numerous points on appeal, two of which require reversal.

The Confession

Duncan insists his confession should have been suppressed. The testimony is sharply disputed--Duncan maintains he was physically abused by the interrogating officers and they deny such mistreatment, while conceding some verbal abuse. Duncan claims he was struck in the stomach by one of the officers with such force that he urinated on himself, that he was denied access to a lawyer or a telephone and was repeatedly threatened.

Some of the principles by which we are guided in attempting to resolve these conflicts are: the burden is on the state to show the statement was made voluntarily, freely, and knowingly, without hope of reward or fear of punishment [Tatum v. State, 266 Ark. 506, 585 S.W.2d 957 (1979) ]; when reviewing the admissibility of a confession on appeal, we make an independent determination of the voluntariness of the confession based on the totality of the circumstances, and the trial court's decision will not be reversed unless it is clearly against the preponderance of the evidence [Stone v. State, 290 Ark. 204 (1986) ]; Fleming v. State, 284 Ark. 307, 681 S.W.2d 390 (1984); a confession based on threats of harm is inadmissible [Davis v. State, 275 Ark. 264, 630 S.W.2d 1 (1982) ]; conflicts in the testimony are for the trial court to resolve as it is in a superior position to determine the credibility of the witnesses [Stone v. State, supra.]

A chronology of the less disputed events surrounding Duncan's confession begins at about noon on the day after the shooting. Duncan was arrested at his residence in Grady, Arkansas and taken to the Pine Bluff police station. Shortly thereafter and prior to any interrogation, the prosecuting attorney, Wayne Matthews, filed a felony murder information against Duncan. In mid-afternoon the police began their interrogation of Duncan. Present during this interview were two Pine Bluff police officers, the prosecuting attorney, and a deputy prosecuting attorney. No careful inquiry into Duncan's reading and comprehension proficiency was made. While Duncan testified he dropped out of school at the eleventh grade, a psychologist testified at the suppression hearing that he read at a third grade level and had an IQ of 70 which he classified as being mildly retarded.

Duncan's rights were read to him and after he was told he had a right to have an attorney present before making any statement, he asked, "Do ya'll appoint lawyers?" The officer did not answer the question directly but continued reading the Miranda rights form.

There is no evidence in the record of any rights waiver form being signed, nor was Duncan asked at any time whether in addition to understanding his rights he also agreed to waive them. Duncan did sign the rights form, misspelling his name in the process (D-U-N-A-N).

The officers proceeded with the interrogation of Duncan for approximately two and one-half hours, failing to get anything but exculpatory information from him. He was taken to his cell and kept there until late Friday night when he was returned to an interrogation room. He was not allowed to make any phone calls during this three and a half day period. Late Friday night he was again interrogated and at this time gave incriminating information, admitting he had shot the officer.

The next day, Saturday, Duncan was allowed to see his girlfriend, also in custody, for a brief period, but was allowed no other visitors or phone calls. On Sunday, the officers asked appellant to give his confession again, and this time it was video-taped. The court found both the Friday and Sunday confession admissible, but only the Sunday confession was introduced at trial.

While Duncan makes a number of objections with regard to the confessions that are not supported by the record, there are two points which warrant reversal--the lack of an effective waiver of rights and failure to bring appellant before a magistrate for a prompt first appearance pursuant to A.R.Cr.P. Rule 8.1.

Unnecessary Delay

Rule 8.1 states simply:

An arrested person who is not released by citation or by other lawful manner shall be taken before a judicial officer without unnecessary delay.

There is no guidance from the rule or the Commentary as to what constitutes an "unnecessary delay" or what effect a violation of the rule will have on evidence obtained during such a delay. Nor have our cases necessitated establishing guidelines on these issues. See, Notes, Richardson v. State: A.R.Cr.P. Rule 8.1, A Rule in Need of a Standard, 38 Ark.L.Rev. 842 (1985).

Federal cases are governed by the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.A. § 3501, which provides that a voluntary confession will not be inadmissible solely because of delay in bringing a person before a magistrate "if such confession was made or given by such person within six hours immediately following his arrest or other detention." Similarly, the National Advisory Commission on Criminal Justice, has recommended a maximum time limit of six hours, Nat.Adv.Comm. on Crim. Justice, Corrections, § 4.5, (1973) and the Model Code of Pre-Arraignment Procedure, § 130.2 (1975) allows the accused to be held for two hours and under certain circumstances an additional three hours for a total period not to exceed five hours. While most states have avoided a categorical time limit, some have not, and there is a consistent concern when confessions are obtained after an accused is held beyond a twenty-four hour period. See 28 A.L.R. 4th 1121, Delay in Arraignment; Am. Jur. 2d Evidence § 547 (Supp.1985) (and cases cited therein). The Pennsylvania Supreme Court, pursuant to its supervisory power, adopted a six hour limit and noted that in none of its many cases had a delay of six hours or more been found to be a necessary delay. Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977).

We will not here decide whether a specific time limit should be applied, as it is clear the delay of three and one-half days was unnecessary. There is no evidence in the record to suggest a reason for the delay in taking the defendant before a judicial officer in accordance with Rule 8.1, nor does the state offer any explanation in its brief. In fact, the record shows the delay was purposeful and that the prosecutor made a deliberate decision to hold Duncan in detention and ignore the prompt appearance requirement. We find no justification for the delay in complying with Rule 8.1.

Effect of an Unnecessary Delay

The other question to be dealt with is--where there has been an unnecessary delay under Rule 8.1, what impact does it have on evidence obtained during the interval. In resolving the issue we explore the reasons behind the prompt appearance requirement, originally developed by the U.S. Supreme Court and referred to as the McNabb-Mallory rule. See, LaFave, supra, § 6.3(a). LaFave notes that of greatest significance is the notion that the rule is "intimately related to the problem of eliminating the third degree since the use of coercion to obtain confessions most frequently occurs while the accused is being held in violation of prompt appearance statutes." Id. at 455. LaFave continues quoting another commentator:

Since "the use of third-degree tactics is ... difficult to prove because there is always the word of the police against the word of the accused; and the prestige of police testimony usually carries the day," the safeguards upon which the traditional confessions rules rest have aptly been called "illusory." The main thrust of the McNabb-Mallory rule ... is to bypass conflicts over the nature of the secret interrogation and to minimize both the "temptation" and the "opportunity" to obtain coerced confessions. Id at 455, citing, Y. Kamisar, Police Interrogation and Confessions, (1980).

It has been recognized that in addition to the purpose of guarding against the coercive influence of custodial interrogation, the rule insures that the accused is placed in early contact with a judicial officer so that protections covered by preliminary arraignment are afforded without delay, that the right to counsel may be clearly explained and implemented upon the accused's request and that the accused is protected from being held incommunicado for protracted periods of time. Commonwealth v. Davenport, supra; People v. Heintze, 200 Colo. 248, 614 P.2d 367 (1980); State v. Benbo, 174 Mont. 252, 570 P.2d 894 (1977); Model Code of Pre-arraignment Procedure § 150.2 Commentary at 388 (1975).

With these considerations in mind, the Supreme Court in McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943) held that statements taken during a delay prior to a first appearance should be excluded. The Court found the conviction

cannot be allowed to stand without making the courts themselves accomplices in willful disobedience of law. Congress has not explicitly forbidden the use of evidence so procured. But to permit such evidence to be made the basis of a conviction in the federal courts would stultify the policy which Congress has enacted into law.

See also, Kamisar, supra at 9--13. Generally, exclusion of the confession has continued to be the result of a violation of the prompt appearance rule. See 28 A.L.R. 4th 1121, supra; LaFave, supra, § 6.3.

The...