Hamm v. State

• Decision Date: 03 October 1988
• Docket Number: No. CR,CR
• Citation: 757 S.W.2d 932,296 Ark. 385
• Parties: Kenneth Dale HAMM, Appellant, v. STATE of Arkansas, Appellee. 88-35.
• Court: Arkansas Supreme Court

Page 932

757 S.W.2d 932

296 Ark. 385

Kenneth Dale HAMM, Appellant, v. STATE of Arkansas, Appellee.

No. CR 88-35.

Supreme Court of Arkansas.

Oct. 3, 1988.

M. Susan Walker, Russellville, for appellant.

Theodore Holder, Asst. Atty. Gen., Little Rock, for appellee.

DUDLEY, Justice.

The appellant was convicted of aggravated robbery. We reverse and remand for a new trial.

The appellant made a confession which was recorded on a microcassette and then transcribed by a police secretary. The confession was erased when the tape was reused. Consequently, the State was unable to provide the appellant with the recording of the confession for the purpose of comparing the recording with the transcript. The appellant moved to suppress the statement and expressly cited A.R.Cr.P. Rule 17.1(a)(ii) and Williamson v. State, 263 Ark. 401, 565 S.W.2d 415 (1978). The trial court denied the motion and allowed the transcript of the confession to be read into evidence. This ruling was in error.

A.R.Cr.P. Rule 17.1(a)(ii) provides that the prosecuting attorney shall disclose to defense counsel "any ... recorded statements ... made by the defendant...." In interpreting this rule, as it concerned witnesses' statements, we said:

We are persuaded that Rule 17.1 imposed a duty upon the state to disclose to defense counsel, upon a timely request, all material and information to which a party is entitled in sufficient time to permit his counsel to make beneficial use thereof.

* * *

We are further persuaded that appellant was not only entitled to the written transcription prepared by the state from the recorded statements, but appellant was entitled to discover the tapes not only because the tapes represented the best evidence, but without the tapes, appellant had no way of comparing the transcription in order to determine if the transcription was a correct reproduction of the recordings. Indeed, the statement as well as the tapes would have been most helpful to appellant in his cross-examination of state's witnesses.

Williamson v. State, 263 Ark. 410, 565 S.W.2d 415 (1978).

Subsequently, we applied the rule to a defendant's statement, as well as to witnesses' statements, and wrote:

Arkansas R.Crim.P. 17.1 provides that the prosecutor shall disclose any written or recorded statement and the substance of any oral statement made by the defendant. In Williamson v. State, 263 Ark. 401, 565 S.W.2d 415 (1978), we held a defendant is entitled to the tape from which a written statement was transcribed. We pointed out that the tape represents the best evidence and without it the defendant has no way of determining if the transcript was a correct reproduction of the recording.

The state's argument is that the Williamson case is distinguishable because in this case the tape is not available, and there it was available, but simply not supplied. Such a distinction should not have the effect the state would have us ascribe to it, for that would deprive the Williamson case of its meaning. The authorities could, with impunity, simply destroy the best evidence of what was said by the accused, and then assert its unavailability in every case.

Mitchell v. State, 295 Ark. 341, 750 S.W.2d 936 (1988).

The State admits that the trial court's ruling on this point was erroneous, but contends that we should still affirm the conviction because (1) the evidence of guilt was overwhelming, and (2) the error was harmless. We reject both contentions.

Excluding the transcription of the appellant's confession, there was no overwhelming evidence of guilt. The victim testified that the robber held a small caliber pistol on him; he said it was probably a .32, but that it may have been a .22 caliber pistol. The police found a .22 caliber pistol in appellant's attic, and appellant told the police that the pistol in the attic was his. Some unnamed person told the police that a car similar to the defendant's car had been used in the robbery and that there were two white males in it at the time. During the trial the victim testified that the robber was not in the courtroom. Such proof does not constitute overwhelming evidence of guilt.

Similarly, the State's harmless error rebuttal must fail. In Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), we adopted the position that we would not reverse a case for errors that were not shown to be prejudicial. The State now argues that the appellant has not shown prejudice as a result of the trial court's error in admitting the transcribed statement. The prejudice lies in the fact that the recording was the best evidence, and that without it, the defendant had no way of determining if the transcription was an accurate reproduction of his recorded statement. It was established that the transcription was not perfect, although the errors that were pointed out were admittedly only typographical. In any event, we do not require an appellant to show prejudice when it would be impossible as a practical matter for him to do so. Common sense dictates that appellant could not recall every detail of a statement taken over a two-hour period, which covers more than seven pages in the transcript. This is especially true in light of the stress an accused is under when he makes a statement. Our finding is buttressed by the testimony of Detective Hunt, who, although under very little stress by comparison, talked to the appellant for two hours just before the recording was made, and then at trial testified that he could not remember what they talked about. To require the appellant to remember and point out every discrepancy between the transcription and his recorded statement in order to show prejudice would place an unfair and onerous burden on him.

In summation, the trial court erred in allowing the transcription of the appellant's confession to be read into evidence. This does not mean, however, that upon retrial the trial court cannot allow oral testimony about the confession into evidence. It is the transcription itself which was admitted in violation of the rules of criminal procedure.

Appellant next asks that we reverse and dismiss, rather than reverse and remand, because he was charged by information rather than indictment. In many cases, including most recently Caldwell v. State, 295 Ark. 149, 747 S.W.2d 99 (1988), we have upheld charges by information against challenges based on the Fifth and Fourteenth Amendments to the Constitution of the United States. Appellant is aware of our cases and asks us to overrule them. We decline to do so. In Mannix v. State, 273 Ark. 492, 621 S.W.2d 222 (1981), we stated that a prior decision will be upheld unless an injustice will result. We do not find any injustice in the case at bar. Accordingly, we decline to overrule our cases, and refuse to dismiss this case.

The appellant's brief contains two other assignments of error. We discuss them because they are likely to arise again upon retrial. Appellant argues that the consent to search his house, which the police obtained from his wife, was defective because (1) she did not have authority to consent, (2) she was coerced into giving consent, and (3) the written consent was not dated.

A consent to search creates an exception to the search warrant requirement. A.R.Cr.P. Rule 11; Scroggins v. State, 268 Ark. 261, 595 S.W.2d 219 (1980). A consent justifying a search of premises can only be given by a person who, by ownership or otherwise, is apparently entitled to give or withhold consent. A.R.Cr.P. Rule 11.2. Here, the trial court was not clearly erroneous in finding that the police reasonably believed that appellant's wife had authority to consent to the search of the premises. The police knew that the utilities were registered in her name; they knew she and her daughter were there; they knew the wife and daughter's clothes were there; and finally, she told the officers she lived there.

Appellant next contends that his wife's consent was coerced. Again, we cannot say the trial court's ruling was clearly erroneous. The appellant's wife testified to coercion on the part of the officers. The officers did not recall any statement or action which was coercive. Faced with two versions of the circumstances surrounding the giving of consent, the trial court simply made a credibility determination as to which witness to believe.

The appellant next argues that the consent was invalid in its form because it was only dated with the year, not with the day and month. The argument is without merit. The consent form was positively identified as the one which was executed at the scene on the day of the search. It is immaterial whether the form was dated.

The next assignment of error, which will arise again upon retrial, involves appellant's assertion that his confession was involuntary because it was given in response to threats and false promises. We can quickly dispose of the argument with regard to the alleged threat. The appellant said he was threatened; the police said he was not. The credibility issue was for the trial court, and we cannot say its ruling was clearly erroneous.

The claim of involuntariness as the result of a promise made by the police is a much closer issue. A statement induced by a false promise of reward is not a voluntary statement. Davis v. State, 275 Ark. 264, 630 S.W.2d 1 (1982). Some police statements are so clearly false promises of rewards that we do not find it necessary to look beyond the statement and the police action to decide that the confession was involuntary. Examples of such statements are found in Freeman v. State, 258 Ark. 617, 527 S.W.2d 909 (1975), in which the prosecutor told a defendant, who later received a life sentence, that a...