Johnson v. State, CR

• Decision Date: 01 July 1996
• Docket Number: No. CR,CR
• Citation: 325 Ark. 197,926 S.W.2d 837
• Parties: Wilford Gene JOHNSON, Jr., Appellant, v. STATE of Arkansas, Appellee. 95-1071.
• Court: Arkansas Supreme Court

Page 837

926 S.W.2d 837

325 Ark. 197

Wilford Gene JOHNSON, Jr., Appellant, v. STATE of Arkansas, Appellee.

No. CR 95-1071.

Supreme Court of Arkansas.

July 1, 1996.

James R. Marschewski, Fort Smith, for appellant.

Vada Berger, Asst. Atty. General, Little Rock, for appellee.

GLAZE, Justice.

Appellant Wilford Gene Johnson, Jr. was convicted of the first-degree murder of Joe Cheek, who was bludgeoned to death on April 25, 1994. He was sentenced to life imprisonment. In this appeal, Johnson raises four points for reversal.

Johnson confessed to killing Cheek, but he argues the trial court erred in denying his motion to suppress the introduction of his confession because police officers failed to comply with Ark.R.Crim.P. 2.3 or to properly advise him of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We first address his Rule 2.3 argument. That rule provides as follows:

If a law enforcement officer acting pursuant to the rule requests any person to come to or remain at the police station, prosecuting attorney's office or other similar place, he shall take such steps as are reasonable to make clear that there is no legal obligation to comply with such a request.

This court considered Rule 2.3 in Burnett v. State, 295 Ark. 401, 749 S.W.2d 308 (1988), where the court reversed Burnett's conviction, holding he had been unlawfully seized without probable cause at his home in violation of the Fourth Amendment and Rule 2.3. Specifically, the court held that the six arresting officers had failed to comply with Rule 2.3, which requires that an officer inform a person he is free not to accompany the officer if the officer does not have a warrant. The Burnett court set out the following test established in United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), when determining whether one has been unlawfully seized:

We conclude that a person has been 'seized' within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, the physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled. (Emphasis added.)

The court in Burnett further relied upon the following rationale in Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), where the court held Dunaway's detention amounted to an arrest:

In contrast to the brief and narrowly circumscribed intrusions involved in those cases [Terry v. Ohio, supra, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and similar decisions], the detention of petitioner was in important respects indistinguishable from a traditional arrest. Petitioner was not questioned briefly where he was found. Instead, he was taken from a neighbor's home to a police car, transported to a police station, and placed in an interrogation room. He was never informed that he was 'free to go,' indeed, he would have been physically restrained if he had refused to accompany the officers or had tried to escape their custody. The application of the Fourth Amendment's requirement of probable cause does not depend on whether an intrusion of this magnitude is termed an 'arrest' under state law. The mere facts that petitioner was not told he was under arrest, was not 'booked,' and would not have had an arrest record if the interrogation had proved fruitless, while not insignificant for all purposes, [cite omitted] obviously do not make petitioner's seizure even roughly analogous to the narrowly defined intrusions involved in Terry and its progeny. Indeed, any 'exception' that could cover a seizure as intrusive as that in this case would threaten to swallow the general rule that Fourth Amendment seizures are 'reasonable' only if based on probable cause. (Emphasis added.)

Using the foregoing Mendenhall test, the Burnett court held that a reasonable person in Burnett's position would have thought that he had no choice except to accompany six officers to the police station. The court determined that, although the officers said Burnett was not arrested when he was picked up at his home, he was simply told to get his clothes on and come to the station. None of the six officers informed Burnett he could stay at home.

In reviewing a trial judge's ruling on a motion to suppress, we review the evidence most favorable to the appellee, Beshears v. State, 320 Ark. 573, 898 S.W.2d 49 (1995). Here, the record reflects that, on April 26, 1994, the day after Cheek's murder, Officers Jay Rider and Lanny Reese were at the crime scene, an alley, where they observed Johnson looking for something. The officers talked to him briefly, and asked him if he would come to the police station for an interview. At the station, Johnson was read his rights, and after giving the officers some general information, he asked if he could leave. He was told that he was free to leave at any time. Johnson then told the officers that, on the night of April 25th, he had been drinking with Cheek and two other guys in the alley where Cheek's body was later found. He said that sometime that night he could not locate his bedroll, and, while he felt Cheek had done something with it, Cheek would not tell him where the bedroll was. Johnson then left Cheek and the other men, and spent the night at the Salvation Army. Johnson explained to the officers that he had returned to the alley the next day to continue his efforts to find his bedroll. After relating his story to Rider and Reese, Johnson asked if he was under arrest, and was told no and was again told he was free to go at any time. A short time later, the officers, once again, informed Johnson that he was free to go, and he left.

On May 1, 1994, Officer Howard testified that he directed an on-duty officer to find Johnson and tell him that "we simply want to talk to him; that he was not under arrest." Officer Smalley located Johnson, asked him if he would come down to the station and was told he was not under arrest. No rights were read to Johnson, and no statement was taken. During his interview, Johnson tracked his earlier story that Cheek was alive when Johnson left him on the night of the 25th. Johnson was told that the officers would like to talk to him again if he would come back the next day, May 2nd. No time was set, but Johnson returned about noon, May 2. Officer Howard advised Johnson that he was not under arrest and said "you're here of your own free will." The officers did not read Johnson his rights; Johnson's story remained the same--that Cheek and the other two men were present and alive when he left them the night of April 25.

After telling his story again, Officer Reese testified that Johnson was free to leave, but did not do so. Officer Howard further testified that by now [May 2, 1994] Johnson knew where the restrooms, water fountains and coffee pot were, and he was free to come and go as he pleased--"he's been advised of that fact." Shortly after Johnson repeated his story and when Reese expressed his own thoughts that "somebody had gotten in an argument with Cheek" and used a metal bar to murder Cheek, Johnson volunteered, "No, it was a two-by-four." At that point Officer Howard stopped the interview and read Johnson his rights. Johnson then gave an incriminating statement which, at trial and on appeal, he seeks to have suppressed.

In summary, on April 26, 1994, Officers Rider and Reese were investigating the crime scene when they saw Johnson looking for something in the alley and, as a consequence, they asked him if he would come to the police station for an interview. At the station, Johnson was read his rights, and during his interview, Johnson was told three times that he was not under arrest and was "free to leave at any time." Johnson left shortly after he was told the third time that he was free to go. On May 1, Officer Smalley found Johnson to ask him "if he would come down to the station," and at the same time, he told Johnson he was not under arrest. And lastly, Johnson was asked "if he could return the next day," which he did at a time of his choice, about noon.

Considering the totality of the circumstances, it is clear Johnson was well informed that he was never under arrest, and was free to leave the police station and to come and go when he pleased. He was never threatened verbally or physically by the officers, nor was he ever informed he would be physically restrained if he refused to appear at the station. Rule 2.3 does not provide that a person must repeatedly be advised that he has no legal obligation to come to the police station each time he agrees to appear for an interview or questioning. In fact, even in situations where Miranda warnings might have been required, no such constitutional requirement exists that warnings be repeated each time a suspect is questioned. Bryant v. State, 314 Ark. 130, 862 S.W.2d 215 (1993). We conclude that the officers' actions complied with the requisites of Rule 2.3 and the Fourth Amendment and offer Johnson no valid grounds for suppressing his confession.

Johnson's second argument bears on the officers' failure to advise him of his Miranda rights on May 2 before he disclosed Cheek had been beaten by a two-by-four. However, it is settled that the safeguards prescribed by Miranda be applicable as soon as a suspect's freedom of action is curtailed to "a degree associated with formal arrest." State v. Spencer, 319 Ark. 454, 892 S.W.2d 484 (1995). As discussed by us in addressing Johnson's Rule 2.3 argument, the record reflects he was never taken into custody or otherwise deprived of action in any significant way either prior...