Mitchell v. Bishop, 5482
| Citation | 452 S.W.2d 340,248 Ark. 427 |
| Decision Date | 06 April 1970 |
| Docket Number | No. 5482,5482 |
| Parties | Lonnie B. MITCHELL, Appellant, v. Captain O. E. BISHOP, Supt., Appellee. |
| Court | Supreme Court of Arkansas |
McMath, Leatherman, Woods & Youngdahl, by John P. Sizemore, Little Rock, and Gaughan, Laney, Barnes & Roberts, Camden, and Ray Guzman, Fayetteville, for appellant.
Joe Purcell, Atty. Gen., Don Langston, Asst. Atty. Gen., Little Rock, for appellee.
This appeal is another in the long line of court hearings relating to the conviction of Lonnie Mitchell for the crime of rape in Union County in March 1959. The original conviction was affirmed by this court in Mitchell v. State, 230 Ark. 894, 327 S.W.2d 384. Subsequent thereto, over a period of 10 years, there have been numerous court hearing, in both federal and state courts. After a second hearing in the United States District Court for the Eastern District of Arkansas, presided over by the late Federal District Judge Gordon Young, the court finding that Mitchell's petition should be denied, appellant took a second appeal to the Eighth Circuit Court of Appeals and argued several points for reversal. 1
Points asserted were that, because of the methods employed in the selection of his jury, Mitchell was denied the equal protection of the laws; because of a discriminatory application of the death penalty for rape in Arkansas, Mitchell was denied equal protection and the privilege against cruel and unusual punishment; because of his admission and rape confession, Mitchell was denied due process and the privilege against self-incrimination; because of ineffective presentation by his court appointed trial counsel, Mitchell was denied due process and the right to have the assistance of counsel for his defense. Finally, counsel raised the issue of Mitchell's sanity at the time of the offense and at the time of the trial.
In a comprehensive opinion, that court disposed of each of these points as being without merit, except that it disagreed with the District Court's finding that appellant had waived the question of coercion in connection with his confession by not raising the question at the state trial; it was held that, under the case of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), Mitchell was entitled to an independent state court determination as to the voluntariness of his confession; the case was remanded with directions that the State of Arkansas should be granted a reasonable time to afford appellant an appropriate hearing on the issue of voluntariness of his rape confession, or in the alternative, grant a new trial. In compliance therewith, a hearing on this issue was afforded Mitchell in the Union County Circuit Court on April 25, 1967. Though the appellant was present in court with his parents and attorney at the hearing, no testimony was offered, attorneys for the state and appellant agreeing to submit the matter to the trial judge on the records already made in the state and federal courts. The only evidence offered orally was a short addition to the previous testimony of Sheriff Bishop relating to whether Mitchell's original attorney, J. S. Thomas, visited appellant at the jail while the case was pending. The court rendered an opinion holding the confession voluntary, but we remanded the case, because it was not entirely clear from the court's findings that all of the evidence in the records before him pertaining to the voluntariness of the confession had been weighed and evaluated. We directed that the case 'should be remanded to the trial court for a rehearing or re-examination and re-evaluation of all the evidence pertaining to the voluntariness of appellant's confession.' 2 In compliance therewith, the Union Circuit Court conducted a further hearing on April 18, 1969, at which time oral testimony was given by four city policemen of El Dorado and one State Policeman, all having had some connection with Mitchell's arrest or detention at the jail. No testimony was offered by appellant, or anyone on his behalf; in fact, Mitchell has never testified in any hearing held in state courts. The trial court rendered a comprehensive opinion, holding:
'* * * that the confession of Lonnie Mitchell was voluntarily made of his own free will, with knowledge and comprehension of his constitutional rights, and without coercion, duress, threat, abuse, enticement or promise of reward from any persons whatsoever, and that same is supported by evidence beyond a reasonable doubt.'
From the judgment entered in accordance with this finding, Mitchell brings this appeal.
At the outset, we might commend appellant's appointed counsel for the efforts expended on behalf of their client, and the very thorough manner in which their contentions have been briefed. We say this, despite the fact that we do not agree that Mitchell's confession was obtained involuntarily. No point would be served in detailing the facts, for they have been fully set out in the various opinions that have been rendered in this case by the federal and state courts. Actually, it is difficult to write an opinion which does not simply repeat findings already made by these courts.
We are called upon to pass on the voluntariness of Mitchell's confession to rape, and counsel also urge that we should adopt and enforce the McNabb-Mallory Rule to further the efficient administration of criminal justice, and it is argued, for that additional reason, should reverse the trial court.
In reaching our conclusions, we particularly note the following facts, though not necessarily in the order of their importance.
First, the confession was taken by tape recorder, and there is no evidence of 'breaks' in the recording occasioned by the officers 'stopping the machine in order to tell Mitchell what to say. The only breaks, according to the Prosecuting Attorney, came when it was necessary to turn the record, or place a new record on the machine. The use of the tape recorder is far different from the practice that occurred years ago when the officer would write out in narrative form in his own language the confession, and then present it to the defendant for signature. It is also far different from the question and answer method, for, of course, the interrogation can be halted, if desired, after every question, and later continued (for the record) after 'off the record' acts or conversation. A recording reflects the tone of voice used, the intervals between questions, whether the questions are leading, and the pauses made in the answers. Of course, we know that, generally speaking, it is much easier to ascertain the truth from hearing the spoken word than to make such a...
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