Free v. State

• Decision Date: 13 July 1987
• Docket Number: No. CR,CR
• Parties: Anthony Paul FREE, Appellant, v. STATE of Arkansas, Appellee. 86-188.
• Court: Arkansas Supreme Court

Page 452

732 S.W.2d 452

293 Ark. 65

Anthony Paul FREE, Appellant, v. STATE of Arkansas, Appellee.

No. CR 86-188.

Supreme Court of Arkansas.

July 13, 1987.

Darrell E. Baker, Deputy Public Defender, Francis E. Crumpler, Jr., Fayetteville, for appellant.

Steve Clark, Atty. Gen. by Connie C. Griffin, Asst. Atty. Gen., Little Rock, for appellee.

JOHN ROBERT GRAVES, Special Justice.

Certiorari was granted by this Court pursuant to Rule 29(6)(c) as a result of a tie vote in the Court of Appeals, CA CR 85-205, opinion delivered October 8, 1986. 717 S.W.2d 215.

The appellant, Anthony Paul Free, was accused of unlawfully and feloniously engaging in deviate sexual activity with a person under the age of eleven (11) and was charged with five counts of rape. The jury returned a verdict of guilty on three counts sentencing him to ten (10) years on each count with two of the charges to run consecutively for a total of twenty (20) years. The appellant argues four points for reversal.

The appellant's first point questions the voluntariness of his confession. The victim, age 9, was the nephew of the appellant, who had on occasion been entrusted with the child's care, and had for a time lived with the boy and his parents. Subsequently, the victim reported to the police that he had been raped by the appellant. In response to the reported rape, Detective Sergeant Floyd Hancock went to the appellant's residence and requested that he come to the Springdale police station to answer some questions concerning the alleged rape, but because of a job interview the appellant had previously scheduled, it was agreed that he would come to the station later that day. Upon his arrival, the appellant was properly informed of his Miranda rights, and for approximately one hour thereafter maintained his innocence. Sergeant Hancock then related to the appellant some information which he had learned at a seminar on sexual abuse. The officer told the appellant that adult males who have a preference for young males are extremely difficult to treat, and the first step is to admit the existence of the problem. He also stated that the Court could order counseling and there might be counseling available at the penitentiary. It was shortly after this discussion that appellant confessed to having had oral sex with the victim on five separate occasions.

The appellant argues that the tactics of promise and reward of counseling used by Sergeant Hancock elicited an involuntary statement which should have been excluded. The State has the burden of proving the voluntariness of all in-custody confessions and the trial judge's decision will not be set aside unless it is against the preponderance of the evidence. Davis v. State, 275 Ark. 264, 630 S.W.2d 1 (1982). It is well established that in deciding whether a statement was involuntarily made, we will make an independent determination of the evidence based on the totality of the circumstances and all doubts will be resolved in favor of individual rights and safeguards. Degler v. State, 257 Ark. 388, 517 S.W.2d 515 (1974).

In Davis v. State, supra, we pointed out two factors which should be taken into consideration in examining the totality of the circumstances. First, it is necessary to look at the statements made by the interrogating officer. The appellant contends that Sergeant Hancock promised him that if he admitted he had a problem, the trial court could order counseling in lieu of a prison sentence. However, the record indicates that Sergeant Hancock never promised anything, but indicated there was only a possibility of receiving counseling if appellant admitted he had a problem.

Another way in which Sergeant Hancock's statements could render the confession involuntary is if it was calculated to deceive the appellant. The appellant argues that Sergeant Hancock's testimony indicates that his intent was to obtain a confession, and not to help the appellant get counseling. Nevertheless, we find no fault with an interrogator trying to persuade an accused to tell the truth or to answer questions, even though there may be misrepresentations of fact made by the interrogator, so long as the means employed are not calculated to procure an untrue statement and the confession is otherwise voluntarily made. Gardner v. State, 263 Ark. 739, 569 S.W.2d 74 (1978). A misrepresentation will not invalidate a confession by the defendant as long as it does not constitute an improper influence. Rouw v. State, 265 Ark. 797, 581 S.W.2d 313 (1979). In the case at bar, although Sergeant Hancock's statements may have been intended to influence the appellant, we are unable to say that it was improper or contrary to basic notions of fairness, or that it procured untrue statements.

The second factor pointed out in Davis v. State, supra, is the vulnerability of the defendant. Often it is extremely difficult to determine by an officer's statement whether it is a promise of reward or leniency or merely an admonishment to tell the truth. For example, in Wright v. State, 267 Ark. 264, 590 S.W.2d 15 (1979), we allowed a statement by an interrogating officer that "things would go easier if you told the truth", but "I'll help you any way that I can" was not allowed in Tatum v. State, 266 Ark. 506, 585 S.W.2d 957 (1979). Whether or not these statements are improper in any particular situation turns on the vulnerability of the defendant more than on the wording of the officer's statements, and in determining that vulnerability, it is proper to take into consideration such things as age of the defendant, lack of education, low intelligence, repeated or prolonged nature of questioning, and the delay between the reading of the Miranda rights and the confession. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Watson v. State, 255 Ark. 631, 501 S.W.2d 609 (1973).

The appellant was 22 years old. He was permitted to come to the police station on his own accord. The record indicates that Sergeant Hancock read each of the six rights on the form to the appellant and he acknowledged that he understood them. Sergeant Hancock had him read question two aloud in order to ascertain his ability to read. He also testified that the appellant did not appear to be under the influence of alcohol or drugs at the time of the questioning. In view of the totality of the circumstances, we find the trial court was correct in admitting the confession as voluntary.

The appellant next contends that the court erred in unduly restricting the examination of a witness, Tomlinson, and of the victim concerning prior statements made by the victim. The appellant attempted to question Tomlinson about a disagreement that he had had with the victim. The prosecution objected and the Court sustained. The proffered testimony indicated that if appellant's witness had been permitted to testify, he would have said that he and the victim had had a disagreement during which the victim threatened to tell the police that Tomlinson was going to rape him.

Testimony regarding this issue was not relevant as to whether or not the appellant raped the victim. The appellant was attempting to introduce this testimony in an effort to show the similar circumstances surrounding the victim's report of rape by the appellant and his threat of reporting Tomlinson. Not only was this irrelevant but it was also inadmissible character evidence under A.R.E. 404.

The proffered testimony also may not be used to impeach under Rule 608(b). This rule prohibits attacking the credibility of a witness by extrinsic evidence of specific instances of conduct other than the conviction of a crime.

The trial court also sustained an objection to the testimony concerning the same incident when the appellant recalled the victim to the stand after he had already given direct testimony and was cross-examined by the defense. In this instance, Rule 608(b) would normally allow questions regarding the specific incident involving the victim and Tomlinson, but the record indicates that the appellant's only purpose for questioning the victim about the incident was to lay a foundation for Tomlinson's testimony which had already been ruled inadmissible. We find no error in the...