Noble v. State, CR

• Decision Date: 13 February 1995
• Docket Number: No. CR,CR
• Citation: 319 Ark. 407,892 S.W.2d 477
• Parties: Sherman NOBLE, Appellant, v. STATE of Arkansas, Appellee. 94-572.
• Court: Arkansas Supreme Court

Page 477

892 S.W.2d 477

319 Ark. 407

Sherman NOBLE, Appellant, v. STATE of Arkansas, Appellee.

No. CR 94-572.

Supreme Court of Arkansas.

Feb. 13, 1995.

Jeff Rosenzweig, Little Rock, for appellant.

Clint Miller, Acting Deputy Atty. Gen., Little Rock, for appellee.

HOLT, Chief Justice.

The present appeal is from a denial of post-conviction relief pursuant to Ark.R.Crim.P. 37.1 in a case previously entertained on appeal and dismissed by this court in Noble v. State, 314 Ark. 240, 862 S.W.2d 234 (1993). In that appeal, we held that the appellant, Sherman Noble, who had entered a conditional guilty plea to a capital-felony murder charge, had failed to adhere to the requirements of Ark.R.Crim.P. 24.3(b) regarding both the consent of the trial court and the prosecutor and the reservation in writing of his right to appeal.

In the present Rule 37 appeal, Noble contends that, contrary to the circuit court's finding, he received ineffective assistance of counsel at the trial level and on appeal as a result of the trial counsel's failure to preserve a written memorial of the right to pursue a conditional appeal under Ark.R.Crim.P. 24.3(b). More particularly, he asserts that, while the circuit court was correct in finding that he had established cause to complain under the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the court erred in finding that he had not shown prejudice due to counsel's wrongdoing. We disagree and affirm the judgment of the trial court.

Facts

It was unnecessary to set forth the facts in our opinion in Noble's initial appeal. However, in order fully to comprehend the scope of this review, we must now examine the circumstances and proceedings leading to Noble's claim.

On March 21, 1992, Sherman Noble, a Little Rock resident, and two companions attempted to steal a BMW automobile from Tresia Jester, who was parked by a pay telephone at a service station in Pine Bluff. As Ms. Jester tried to leave in the car, Noble fired a sawed-off shotgun and killed her. Afterward, Noble left the other two men and returned to Little Rock.

The Pine Bluff Police Department received information about Noble's identity and location in Little Rock. On April 11, 1992, three Pine Bluff officers joined law enforcement authorities in Little Rock and one of the murder suspects, already in custody, for surveillance of a house where Noble was believed to be residing. As Noble left the house with another suspect in a pick-up truck, the third suspect positively identified him for the police. The officers followed the truck to a parking lot nearby, where both of the occupants were taken into custody. Each of the three suspects was placed in a separate facility, and a Pine Bluff police car transported Noble to Pine Bluff. Meanwhile, officers obtained a statement from one of the other suspects that incriminated Noble.

After arriving at the Pine Bluff Police Department, Noble was questioned at some length. At first, he denied having been in Pine Bluff on the night of March 21, 1992. Subsequently, he gave a statement at 5:06 p.m., indicating that he had been present at the time of the shooting but had not fired the fatal shot. Instead, he said, "the gun went off." The statement was transcribed by Detective Sergeant James Bacon and signed by Noble.

Dissatisfied with his response, the officers sought to obtain another statement and transported Noble to the local Arkansas State Police Headquarters for a polygraph examination. There, he was interviewed by Investigator John Howell, a polygraph examiner. The polygraph examination, however, was never administered. Instead, after a conversation with Investigator Howell, Noble asked for a piece of paper and wrote a statement admitting that, when he and his friends spotted Ms. Jester's car:

I jump out car drunk with a gun that was not suppose to have any bullets in it he ["Veno," a companion] went to one side and I went to the other the woman got scared and tried to pull off but the tip of the gun was in the window and she pull off that jerk the gun because all at same time she was letting her window up and fired and that's how it happen and I'm sorry today that happen but also ready to do almost any thing or punishment given.

The time recorded on the rights form was 8:16 p.m. on April 11, 1992.

On April 14, 1992, the State filed an information in Jefferson County Circuit Court charging Noble and his two companions with capital felony murder. Noble filed a motion on June 4, 1992, to suppress the in-custodial statements. The circuit court held an evidentiary hearing on August 18, 1992, in connection with the motion to suppress.

At the suppression hearing, Detective Lieutenant Mack Cook of the Pine Bluff Police Department testified that he read the "Standard Rights Form" to Noble at 5:06 p.m. on April 11, 1992, just before the first statement was transcribed by Sergeant Bacon. He explained to Noble why he was in custody and what the charges were. Lieutenant Cook participated in the questioning and noted that Noble never requested an attorney.

After the completion of the initial interrogation, the officers asked Noble if he would be willing to go to State Police Headquarters for a polygraph examination. Noble stated that he would but that he wanted to phone his mother in Forrest City first. He was allowed to make the call and eat dinner, after which Lieutenant Cook's involvement with the process ended.

Detective Rick Hill was present during the entire interview in Pine Bluff and confirmed Lieutenant Cook's testimony that Noble had not requested an attorney but said he would be willing to take a polygraph test after speaking with his mother. When the phone conversation ended, according to Detective Hill, Noble indicated that he was ready to continue the interview. Although Detective Hill accompanied Noble to State Police Headquarters, he was not present during the interview with Investigator Howell.

Detective Sergeant James Bacon testified that the officers "knew we were going to be given a false statement from the start when we talked to Mr. Noble." He stated that, prior to the taking of the first statement, he retrieved photographs of Ms. Jester and handed them to Lieutenant Cook, who showed them to Noble. During the interview, Sergeant Bacon said, Noble brought up the subject of the Christian faith. According to Sergeant Bacon, he told Noble that, in his own belief as a Christian, "it did not matter who judged him on earth as long as he was right with the man upstairs."

Sergeant Bacon also noted that Noble never asked for an attorney and never sought to stop the interrogation. After the first statement was given, Sergeant Bacon said, Noble agreed to speak with State Police Investigator Howell, requesting only that he be allowed to speak with his mother before going. Sergeant Bacon then dialed the number.

Investigator John Howell of the Arkansas State Police, a polygraph examiner, testified that he met with Noble in the C.I.D. office at about 8:15 p.m. on April 11, 1992. He read the waiver of rights form to Noble, who signed the document after indicating that he did not want a lawyer and had not been subjected to promises, threats, pressure, or coercion.

At that point, Investigator Howell began discussing the polygraph examination with Noble. In a conversation lasting ten or fifteen minutes, he spoke to him about his Roman Catholic faith and the importance of telling the truth. Investigator Howell also emphasized that, with the aid of the test, "I will know ... for a fact, whether or not ... you fired the shot." After about ten or fifteen minutes of what Investigator Howell described as a "very casual" conversation, Noble said, "I want to tell you the truth." He then wrote his second, inculpatory statement.

Noble's testimony at the hearing was at some variance with that of the police officers. Noble recounted that when the photographs of Ms. Jester were produced he stated, "Man, you said I can stop my questions at any time," and "I just stopped." He claimed that Sergeant Bacon began talking to him about his religious background and said, "The truth will get you out. The truth will set you free."

The officers, said Noble, alternately told him he was lying and declared that they believed him, saying they would "take you down to the polygraph tester to make sure you are telling the truth." Noble testified that the officers continued to press him on the need to submit to a polygraph examination. He asserted that the officers never advised him that he didn't have to take the test.

According to Noble, he did not agree to take the polygraph examination after talking to his mother but instead indicated that he wanted to see what she thought about it, "and then I'll come back and let you know." His mother admonished him to wait until she could come to Pine Bluff on the next day. When he got off the phone, Noble said, Sergeant Bacon "cussed me out," saying, "No, you're bullshitting us. We let you use the phone and you are still bullshitting us. You told me you was going to take the polygraph test after you talked to your mother." Noble testified that he then told the detective, "I ain't going to take the test. I'm just going to wait until she get up here." At that, Noble averred, Sergeant Bacon cursed at him again, though not in a loud voice, "and I looked around the room and it was something like six or seven of them. I said, 'Man, forget it. I'll go on and take it.' "

When Investigator Howell interrogated him, Noble said, he placed great emphasis on his Catholic faith and the importance of telling the truth. Noble stated that Investigator Howell stressed that, once he was connected to the polygraph machine, he would "know for sure" if he were telling the truth. As Investigator Howell continued to bring up "this religious thing" and began talking about confessing sins to God, Noble was, by his own account,...