Freeman v. State

• Decision Date: 13 October 1975
• Docket Number: No. CR--75--13,CR--75--13
• Citation: 258 Ark. 617,527 S.W.2d 909
• Parties: , 85 A.L.R.3d 1185 Freddie Dean FREEMAN et al., Appelalnts, v. STATE of Arkansas, Appellees.
• Court: Arkansas Supreme Court

Page 909

527 S.W.2d 909

258 Ark. 617, 85 A.L.R.3d 1185

Freddie Dean FREEMAN et al., Appelalnts, v. STATE of Arkansas, Appellees.

No. CR--75--13.

Supreme Court of Arkansas.

Oct. 13, 1975.

Harold L. Hall, Public Defender, by John W. Achor, Chief Deputy Public Defender, Little Rock, for appellants.

Jim Guy Tucker, Atty. Gen., by Gary Isbell, Asst. Atty. Gen., Little Rock, for appellees.

FOGLEMAN, Justice.

Appellants Freddie D. Freeman, John Arthur Bowden and Walter Bowden were found guilty of the murder of W. C. Anderson in the perpetration of a robbery and sentenced to life imprisonment. For reversal of their conviction, they assert error in refusal to grant separate trials, in admission of the testimony of a physician, of a confession of Walter Bowden, and of photographs of, and testimony about, an automobile belonging to Freeman. We find reversible error in the admission of the confession.

Anderson was killed on December 29, 1973 in North Little Rock. On December 31, 1973, about 9:30 A.M., Lt. Tucker and Sgt. May of the North Little Rock Police Department went to Southern Farms, where they found Walter Bowden, whom they took to the Homicide Squad Room at the North Little Rock Police Department, after having given him warnings about his constitutional rights as to interrogation pursuant to the requirements of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1965). There they interrogated Walter ¹ about his activities on the day of the homicide. When they were not satisfied with his answers, they obtained his consent to a polygraph examination, arranged for it to be conducted by Lt. Bob Bailey at Conway on New Year's Day, and held Walter in the North Little Rock jail overnight. Walter had been told that he was a suspect in the homicide, but had not been charged. Although the officers did not consider that Walter was under formal arrest at the time, they said he was incarcerated, he was not free to leave but was kept in a cell. The circuit judge quite correctly held that, in actuality, he had been arrested.

After the test, shortly after noon, Walter was returned to the jail in North Little Rock. About 2:30 P.M., a new interrogation was commenced, after a new warning had been given Walter. When asked if he wanted to contact an attorney, he stated that he did not, but would like to contact his uncle, Jim Lindsey. Walter was permitted to call Lindsey, told the officers his uncle was coming down, and said that he did not want to make any statement until Lindsey came. Lindsey had not arrived by 3:30. Walter told Tucker that he had knowledge of the crime, but didn't kill anyone and kept asking, 'Well, I didn't kill anybody, what charge are you going to place against me?' Tucker then contacted Pulaski County Deputy Prosecuting Attorney Jim Hamilton, who came to the jail about 4:10 P.M. Tucker told Hamilton, 'We have a murder'. Hamilton was informed of what had taken place by Tucker, in particular the preliminary result of the polygraph test and Walter's statement and question about charges. Walter asked Hamilton, 'When I give a statement, do you have any idea what I will be charged with?' or 'When I give my statement, what's going to happen to me?' Hamilton had been told that Walter had said he was present but didn't kill anybody. Hamilton advised Walter that he could not make any promises but told Walter that if he had committed a crime, it was probably one that would not result in more than 21 years' incarceration. Hamilton then left and Tucker received an affirmative reply when he asked Walter if he wanted to give a statement. Tucker reread a statement of Walter's constitutional rights, after which Walter, who had then been in jail about 30 hours, made a statement admitting his participation in the robbery of Anderson, in planning it with Freeman, soliciting John's participation and going with both to the scene in Freeman's automobile, waiting for them and driving them away from the scene. The statement implicated both the others in the killing, but exonerated Walter from actual participation in person in the killing of Anderson in the perpetration of the robbery. Walter commenced the statement at 4:21 P.M., and by 4:36 P.M., it was completed, typed by Tucker and signed by Walter and by Tucker and May as witnesses.

Walter's version was that he was promised a 21-year sentence if he were to give a statement and testify against the other two and that he signed the statement because of this promise and the threat that he would get the death penalty if he did not. Both Hamilton and Tucker deny that any mention was made of the death penalty.

On January 8, 1974, Walter was charged with robbery by an information filed by another deputy prosecuting attorney. Hamilton had related what had happened at the North Little Rock police station to other deputy prosecuting attorneys and played a minimal part in the decision on the filing of charges against the three appellants in that he only conveyed information to those who made the decision. It was Hamilton's opinion, at the time, that Walter should be used as a witness against the others, because he had been cooperative. He stated that Walter continued to cooperate until he talked with the public defender. A first degree murder charge was filed against Freeman and John, but not Walter, on January 14. It was not until April 10 when an amended information was filed that all three wre charged with the murder.

Motions for severance were filed by all three on June 18, 1974. On July 3, the state demanded the death penalty and the motions to sever were granted. On July 23, upon the state's waiver of the death penalty, the state's motion to consolidate was granted and the order granting a severance set side. On July 15, the prosecuting attorney had written a letter to the public defender, who had been appointed to represent all three appellants, in which he offered to waive the death penalty if Freeman and John entered pleas of guilty to the murder. He further offered to nolle prosequi the murder charge against Walter if he would plead guilty to the charge of robbery and to recommend a sentence of ten years and to waive the death penalty as to John and Freeman if he would testify against them should they plead not guilty. Walter declined this offer in a hearing before the circuit judge, in camera, on July 22.

In reviewing the admission of a confession over an objection for alleged involuntariness, we make an independent determination based upon the totality of the circumstances and reverse the action of the trial judge only when we find his finding to be clearly against the preponderance of the evidence. Degler v. State, 257 Ark. 388, 517 S.W.2d 515. Of course, a confession given by an accused while in custody is presumed to be involuntary, and the burden of proving that it was actually voluntary rests upon the state. Scott v. State, 251 Ark. 918, 475 S.W.2d 699; Johnson v. State, 248 Ark. 184, 450 S.W.2d 564, (on petition for postconviction relief) 249 Ark. 268, 459 S.W.2d 56.

In order to be voluntary, a confession must have been made in the absence of threat of injury or promise of reward and free from the taint of official inducement proceeding from either hope or fear. When threats of harm or promises of favor or benefits are used to extort a confession, it is attributable to such influence and not voluntary. Dewein v. State, 114 Ark. 472, 170 S.W. 582; Brown v. State, 198 Ark. 920, 132 S.W.2d 15. It must not be induced by promises, either express or implied, by the officer having the accused in custody or by any other person in authority, and, if a confession is made under the influence of hope of mitigation of punishment excited by those in authority, it is inadmissible. Hardin v. State, 66 Ark. 53, 48 S.W. 904; Brown v. State, supra.

Even though we give full credit to the testimony of the deputy prosecuting attorney who talked with Walter that he made no promise to Walter and that he specifically stated that he had no authority to do so, the conclusion that Walter was justified in feeling that there was an implied promise of leniency is inescapable when we view all the circumstances, including the course of events following his confession. We must hold that the confession was involuntary and inadmissible.

We deem it unnecessary to consider the argument of the appellants regarding severance because we cannot anticipate that the question will arise again or the context in which it might arise, because of our holding as to Walter's confession. Two other questions raised by appellants will likely arise on retrial. The first is the contention that the testimony of Dr. James Harper Bledsoe about a bullet wound suffered by John was admitted in violation of the physician-patient privilege. The other relates to the admissibility of testimony pertaining to an automobile owned by Freeman.

The victim of the robbery was found slumped in his chair. In his lap there was a .38 caliber pistol that had been fired recently. After finding this situation, Patrolman Paul Hale of the North Little Rock Police Department went to the University Medical Center and arrested John, whom he found lying on an x-ray table. John had been taken to the emergency room there about noon. Lt. Tucker came there about 5:00 P.M. and witnessed the administration of a trace metal test on John. Two black males had been seen between 11:00 and 11:30 A.M. leaving Anderson's used car lot under circumstances from which it might have been inferred that one of them had been injured. Gunshots had been heard from the lot. Dr. Bledsoe testified that he was the physician at the University Medical Center who examined and treated John there on December 29, 1973 and that any inquiry or examination he made of John was made for the purpose of treating and prescribing for him. Over the objections of John's attorney, Bledsoe was permitted to testify that John had suffered a gunshot wound to his lower...