Foreman v. State

• Citation: 321 Ark. 167,901 S.W.2d 802
• Decision Date: 19 June 1995
• Docket Number: No. CR,CR
• Parties: Everett FOREMAN, Appellant, v. STATE of Arkansas, Appellee, 94-645.
• Court: Supreme Court of Arkansas

Page 802

901 S.W.2d 802

321 Ark. 167

Everett FOREMAN, Appellant, v. STATE of Arkansas, Appellee,

No. CR 94-645.

Supreme Court of Arkansas.

June 19, 1995.

[321 Ark. 169] Dale E. Adams, Little Rock, for appellant.

Clint Miller, Dep. Atty. Gen., Little Rock, for appellee.

CORBIN, Justice.

On May 15, 1993, Henry Callanen was fatally shot and robbed in the course of his employment as a security guard at a McDonald's restaurant on Roosevelt Road in Little Rock ¹. In connection with that event, appellant, Everett Foreman, was charged by felony information with committing the crimes of aggravated robbery and capital murder. A co-defendant, Durrell Childress, was likewise charged. In November 1994, pursuant to jury verdict, appellant was found guilty of the crimes of aggravated robbery and murder in the first degree. The trial court entered a judgment of conviction for murder in the first degree and sentenced appellant to life imprisonment. This appeal arises therefrom.

Appellant states four points of appeal, one of which is the trial court erred in denying his motion to suppress his out-of-court statement given to the police. We find this point has merit and reversible error occurred. The judgment is reversed on this point and the case remanded. We discuss this point as well as appellant's point that it was error to admit the hearsay statement of an unavailable witness for the benefit of the trial court upon retrial. Clay v. State, 318 Ark. 122, 883 S.W.2d 822 (1994). Our jurisdiction is proper pursuant to Ark.Sup.Ct.R. 1-2(a)(2).

ADMISSION OF APPELLANT'S STATEMENT

During custodial interrogation at the Little Rock police station on May 19, 1993, appellant gave an unsworn statement to Little Rock Police Detectives Randy Reaves and James Chandler. In the statement, appellant admitted driving Childress to McDonald's on the night of the shooting, waiting with Childress behind the restaurant, seeing Callanen emerge from the restaurant, hearing gunshots, running from the scene, and telling his girlfriend, Tracy Brooks, that he and Childress had "done something bad." In the statement, appellant implicated Childress as the shootist.

Appellant filed a motion to suppress the statement which, he alleged, was taken in Appellant argues the admission of his statement was reversible error in two respects: (1) the state failed to carry its burden of proof at the hearing to establish the statement was voluntarily given, and (2) the state violated his constitutional right to counsel. We agree with appellant's first argument. Therefore we do not address appellant's constitutional argument because its resolution is not so necessary to the determination of this case that it cannot otherwise be decided. Grimmett v. State, 251 Ark. 270-A, 476 S.W.2d 217 (1972).

violation of his federal constitutional Fourth, Fifth and Sixth Amendment rights and his rights under the Arkansas Constitution. An evidentiary hearing was conducted and testimony was given by Reaves, Chandler and appellant. Appellant testified that a third policeman, who was identified as former Little Rock Police Officer Tim Isenberg, threatened him shortly before and during a break in his interrogation by Reaves and Chandler. Isenberg did not testify at the hearing. The trial court ruled the statement was freely and voluntarily given and denied the suppression motion. At trial, the statement was admitted over appellant's objection.

Appellant relies upon Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981), for the proposition that the state's failure to call Isenberg as a material witness at the hearing precluded it from sustaining its burden to prove appellant's statement was voluntarily given. In Earl, the appellant challenged the admissibility of a confession he made to police during custodial interrogation on the ground that it was coerced. Sheriff Grady, the officer who escorted the appellant's co-defendant, Burton, from the interview room and then escorted the appellant to the interview room, was not called as a witness at the hearing to determine the voluntariness of the appellant's statements. This court stated:

The prosecution did not call Sheriff Grady as a witness at the Denno hearing. And, it is undisputed that in-custodial statements of defendants are presumed to be involuntary and the State has the burden of proving their voluntariness. When an accused offers testimony that his confession was induced by violence, threats, or coercion, it is incumbent upon the State to call all material witnesses who were connected with the contested confession or give an adequate explanation for their absence at the Denno hearing.

Sheriff Grady, we think, was a material witness since his testimony would have reflected on the state of mind of the defendant at the time of entering the interview room by corroborating or negating the appellant's testimony concerning co-defendant Burton. Also, arguably, Sheriff Grady was a participant to the coercion by allegedly telling the appellant he had to "go in there and talk."

Therefore, since the State failed to call a material witness at the Denno hearing, it did not sustain its burden of proof as to the voluntariness of the confession.

Id. at 14-15, 612 S.W.2d at 102-03 (citations omitted). The case was reversed and remanded for retrial.

In the present case, appellant testified at the hearing that, prior to his interrogation by Reaves and Chandler, Isenberg took him from a holding cell over to the police department. At that point, appellant testified:

A We goes in the room and Detective Isenberg, he telling me that he know I done killed this police and he say--then I told him I don't know nothing, and then that's when, you know, he just starts to holler at me and then, you know, he pushed me up against the wall.

Q Okay. Anything else happen?

A Then he leaves out the room.

Q What happens then?

A The other two detectives come in.

Q These two detectives that testified here today, Detective Chandler and Detective Reaves?

A Right.

Appellant testified he reported Isenberg's actions to Reaves and Chandler during the interrogation and told them he would make a statement if they would keep Isenberg out. Appellant testified Reaves and Chandler left the interview room at one point in the interrogation during which time Isenberg re-entered Chandler testified at the hearing that appellant was read his rights at 1:40 p.m. and his statement, which was audio-taped, commenced at 3:50 p.m. Chandler testified appellant signed a written waiver form and made his statement voluntarily. Chandler testified Isenberg could have spoken with appellant and he (Chandler) would not have known. Reaves's testimony at the hearing was consistent with that of Chandler. Reaves also testified he had seen Isenberg with appellant shortly before appellant's interrogation by Reaves and Chandler began. Reaves testified it was possible appellant told him about his conversation with Isenberg and he (Reaves) did not write it down.

the interview room and again yelled at him, pushed him against the wall, and told him he knew appellant killed Callanen. Appellant testified another "dark-haired officer" entered the interview room and told Isenberg to leave. Appellant testified he made the statement to Reaves and Chandler because he was afraid of Isenberg and that it was coerced.

At the conclusion of the hearing, appellant cited Earl and objected to the state's failure to account for Isenberg, as well as to the alleged constitutional violation of his right to counsel. The trial court indicated it would allow the state three days to respond. The record, however, reveals that prior to the time the trial court ruled on the suppression motion, no response or explanation was offered by the state with respect to the objection arising from Isenberg's absence at the hearing. ²

In Smith v. State, 254 Ark. 538, 494 S.W.2d 489 (1973), we held that whenever an accused offers testimony that his confession was induced by violence, threats, coercion or offers of reward, the state has a burden to produce all material witnesses who were connected with the controverted confession or give an adequate explanation of their absence. We have reiterated this ruling many times. E.g., Williams v. State, 278 Ark. 9, 642 S.W.2d 887 (1982); Earl, 272 Ark. 5, 612 S.W.2d 98; Bushong v. State, 267 Ark. 113, 589 S.W.2d 559 (1979), cert. denied, 446 U.S. 938, 100 S.Ct. 2157, 64 L.Ed.2d 791 (1980); Gammel & Spann v. State, 259 Ark. 96, 531 S.W.2d 474 (1976); Russey v. State, 257 Ark. 570, 519 S.W.2d 751 (1975); Northern v. State, 257 Ark. 549, 518 S.W.2d 482 (1975); Smith v. State, 256 Ark. 67, 505 S.W.2d 504 (1974). The state's failure to comply with this ruling has constituted reversible error in many cases. E.g., Williams, 278 Ark. 9, 642 S.W.2d 887; Earl, 272 Ark. 5, 612 S.W.2d 98; Russey, 257 Ark. 570, 519 S.W.2d 751; Northern, 257 Ark. 549, 518 S.W.2d 482; Smith, 256 Ark. 67, 505 S.W.2d 504; Smith, 254 Ark. 538, 494 S.W.2d 489.

In determining whether a witness is "material" this court has stated "[t]here must be some connection between the witness and the alleged acts of coercion or an opportunity to observe the alleged coercion." Bushong, 267 Ark. 113, 121, 589 S.W.2d 559, 564. In the present case, we conclude Isenberg was a material witness and the state gave no adequate explanation for his absence at the hearing.

In its brief, the state argues this point of appeal is procedurally barred because appellant failed to allege in his suppression motion that his statement was coerced by any police officer and therefore the state was unfairly surprised when the issue was raised at the hearing. The state requests we modify the Smith rule to clarify that the defendant has an initial burden to plead the custodial statement was the product of threats or abuse. We decline to do so. Appellant's suppression motion raised the issue of the voluntariness of his statement to the police. The trial court permitte...