Nash v. State
| Decision Date | 23 March 1970 |
| Docket Number | No. 5477,5477 |
| Parties | James Mack NASH, Appellant, v. STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
Martin L. Green, and Shaw & Bedwell, Ft. Smith, for appellant.
Joe Purcell, Atty. Gen., Don Langston, and Mike Wilson, Asst. Attys. Gen., Little Rock, for appellee.
Appellant was charged with first degree murder of Larry McKinney on June 14, 1969. He was convicted of second degree murder and sentenced to five years' imprisonment. He urges three grounds for reversal of that conviction, viz: (1) failure of the circuit court to suppress his alleged confession; (2) failure of the trial court to grant his motion for continuance; and (3) failure of the evidence to support the verdict.
In support of the first ground, appellant now argues that his confession was inadmissible because it was given as a preliminary to a polygraph examination, the results of which are barred as evidence by Ark.Stat.Ann. § 71--2225 (Supp.1969). His present argument also includes the contention that the alleged confession is so inconsistent that it is obvious that appellant could not have understood what he signed. His motion to suppress was on other grounds, i.e., that the statement was involuntary because the language, comments and innuendos of the officer to whom the statement was made constituted promises of leniency. Although it appears that appellant's present arguments on this ground are without merit, we will not further consider them because they were raised for the first time on appeal. Petty v. State, 245 Ark. 808, 434 S.W.2d 602; Gathright v. State, 245 Ark. 840, 435 S.W.2d 433. We will review the evidence for the purpose of determining whether, under all the circumstances, the statement appellant sought to suppress was voluntarily given.
Nash was 22 years of age, the son of a minister and possessed of education including 1 1/2 years of college. He had experienced two years of Army Service. He had on occasion filled his father's pulpit. At the time of his arrest he was employed at the Whirlpool Corporation factory as a paint operator. On Saturday, June 14, during an investigation by the prosecuting attorney of the circumstances of the killing of Larry McKinney, Nash had agreed to take a polygraph test. While at work during the afternoon of June 16, he was called to his employer's personnel office. Upon arrival there he recognized Officer Tidwell whom he willingly accompanied to the police station for the purpose of taking the test. Sometime after arrival at the station he was taken to Sergeant Bettis, whose primary duty was administering polygraph tests. While the officer stated that he identified himself as a police officer, Nash denies that he knew this. Appellant's statement in this regard is irreconcilable with his contention about promises of leniency by the officer, and his later testimony that he had confidence in Bettis because he knew that Bettis was a police detective.
Bettis testified that he gave appellant a printed form containing a concise explanation of the rights of one in custody as to interrogation as delineated in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The officer stated that he asked Nash to read the form and that he read from an identical one while Nash followed his reading by reference to the form provided him. According to Bettis, appellant answered affirmatively when asked if he understood his rights and added that he was only going to tell the truth and was willing to sign the appended waiver of his rights to remain silent and to have the advice of counsel. This waiver was signed by Nash, and his signature was witnessed by Bettis and Tidwell.
Bettis' testimony relating to the circumstances leading up to the signing was confirmed by Tidwell, who stated that he left the room after attesting Nash's signature. Nash substantially corroborated the testimony of the officers, but testified that he was asked to sign the papers only as an agreement to take the polygraph test.
After the signing of the waiver, Bettis proceeded with an explanation of the test and after about 10 minutes, Nash proceeded to make a statement of his activities on the occasion of the killing of Larry McKinney. Bettis testified that he typed the statement as it was given over a period of approximately one hour. He also stated that as the typing of each paragraph was completed, it was read back to and confirmed by Nash. At the very inception of Nash's oral statement, he admitted that he had possessed a gun on the evening in question, and had left it at the home of a friend named Bruce Sanders. Nash signed an authorization to Officer Tidwell to pick up this weapon. Tidwell then was recalled to the room and given the authorization. He proceeded to the designated house and returned with a pistol about the time Sergeant Bettis finished typing Nash's statement. The weapon was exhibited to, and identified by, Nash. Bettis then asked appellant to read the typed statement. According to this officer, after Nash finished reading the statement, he asked appellant if he wanted to sign it, and appellant did so in the presence of Officers Tidwell and Brooks. Bettis stated that Nash was so upset and emotional after signing the statement that a polygraph test was not then possible, even though Nash was still willing to undergo it.
While Nash admits that he acted of his own free will, he asserts that he understood that the waiver was signed by him with the understanding that it was given in connection with the taking of the polygraph test. He testified that, in explaining the test, Bettis told him that if he didn't tell the truth not to take the test, because his untruthfulness would certainly be disclosed. Thereafter, said Nash, Bettis advised that 'if a man told him the truth, he would tell a man the truth' and that conflicting stories had been told about the events surrounding the shooting of Larry McKinney. Nash also testified that Bettis continually told him that even if he shot and killed McKinney he surely couldn't be held for first degree murder but that the only thing 'they' could do was to reduce the charge to 'justifiable' homicide or involuntary manslaughter. By way of explanation to the court, Nash testified that Bettis said that he would probably be 'booked' for murder, just as one would be 'booked' for manslaughter after an automobile accident, and, after two or three days, a judge, upon preliminary hearing, would reduce the charge to 'justifiable' homicide.
Appellant admitted that he told Bettis what happened, but said that the statement he signed was not typed until after the officer's assurances about reduction of the charge, and the sergeant asked that he repeat his story while it was being typed. Nash also said that most of the matters set out in the statement were 'almost correct,' but that 'they project a different meaning' and 'can be interpreted a different way than from the way I stated.' He did deny any knowledge that a shot he fired had struck the deceased, because he said he was running backward and looking the other way when his weapon was fired. He also denied having made some of the remarks contained in this purported statement and attributed to him on the occasion of the shooting.
Nash's claim that he only read parts of the incriminating statement is hardly credible in view of his equivocal testimony on that point. He stated in answer to one question by the trial judge that 'I know I read through it. * * *' Bettis denied having made any promises to Nash.
The independent review of the record to which we are committed in considering admissibility of confessions convinces us that the circuit judge was correct in holding the statement to be voluntary and admissible. In so doing, we have given appropriate, but not controlling, weight to the findings of the trial judge. See Harris v. State, 244 Ark. 314, 425 S.W.2d 293, cert. denied, 393 U.S. 941, 89 S.Ct. 308, 21 L.Ed.2d 278 (1968). He stated that he might have felt some concern about appellant's understanding of what had been said and done if the latter were illiterate or dull and unappreciative of the meanings of words and distinctions in words and expressions. His observation of appellant, however, convinced him that Nash...
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