Osburn v. State , CR 08-1146.

• Decision Date: 10 September 2009
• Docket Number: No. CR 08-1146.,CR 08-1146.
• Citation: 2009 Ark. 390,326 S.W.3d 771
• Parties: Kenneth Ray OSBURN, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

326 S.W.3d 771

2009 Ark. 390

Kenneth Ray OSBURN, Appellant,

v.STATE of Arkansas, Appellee.

No. CR 08-1146.

Supreme Court of Arkansas.

June 25, 2009.

Rehearing Denied Sept. 10, 2009.

James W. Wyatt and Patrick J. Benca, Little Rock, for appellant.

Dustin McDaniel, Att'y Gen., by: Deborah Nolan Gore, Ass't Att'y Gen., for appellee.

PAUL E. DANIELSON, Justice.

*1 Appellant Kenneth Ray Osburn appeals from his convictions for capital murder and kidnapping and his sentences to life imprisonment without parole and life, respectively. He asserts three points on appeal, specifically, that the circuit court erred: (1) by failing to suppress two statements he made to police, which he claims violated his rights under the Fifth and Sixth Amendments and Article 2, §§ 8 and 10 of the Arkansas Constitution; (2) in admitting testimony regarding an incident that occurred twenty-seven years prior pursuant to Arkansas Rules of Evidence 403 and 404(b); and (3) in not granting his motion for new trial based on an allegation of juror misconduct. We reverse and remand Osburn's convictions and sentence.

Because Osburn does not challenge the sufficiency of the evidence to support his *2 convictions, we will only briefly recite the general facts here and will set forth the more specific facts relevant to the points on appeal, as they are discussed. See, e.g., Davis v. State, 367 Ark. 330, 240 S.W.3d 115 (2006). On August 27, 2006, the car of seventeen-year-old Casey Crowder was found along the side of Highway 65 in Dumas, Arkansas. Casey's clothed body was later discovered, in Desha County along "forty-three canal" on September 2, 2006, with a black zip-tie around her neck. During the course of the investigation into her disappearance and death, Osburn became a person of interest. He voluntarily presented himself for an interview by investigatorson September 4, 2006, and consented to searches of both his home and truck. Osburn was later arrested on September 28, 2006, and three separate statements were taken from him on that day, one of which was used as evidence against him at trial. He was tried by a jury, and, as already stated, Osburn was convicted of kidnapping and capital murder, and he was sentenced to life imprisonment without parole and life. He now appeals.

I. Statements to Police

For his initial point on appeal, Osburn challenges the circuit court's denial of his motion to suppress two statements that he claims were violative of his rights under the Fifth and Sixth Amendments of the United States Constitution, as well as Article 2, §§ 8 and 10 of the Arkansas Constitution.¹ Specifically, Osburn disputes the circuit court's finding that *3 after Osburn requested counsel, he initiated contact with investigators two separate times and voluntarily waived his rights, thereby rendering the two separate statements admissible. Osburn further claims that any waiver of his Miranda rights was the result of intimidation, coercion, deception, and promises of leniency by investigators. He asserts that these errors rendered his final statement "fruit of the poisonous tree."

Regarding Osburn's right-to-counsel claim, the State responds that Osburn clearly and unequivocally initiated contact with police prior to the statements and that the statements *4 were made voluntarily. The State asserts that none of the investigators' statements made to Osburn during his interrogations constituted threats, but to the extent that they could be construed as threats, his statements were not the product of coercion. With respect to Osburn's claims regarding promises of leniency, the State maintains that the record does not demonstrate, nor does Osburn specifically assert, that any such promises induced or slightly influenced his statements.

The facts surrounding Osburn's statements are these. On September 4, 2006,Osburn presented himself at the Southeast Arkansas Law Enforcement Center (SEALEC) and stated that he had heard that investigators wanted to speak with him and examine his truck. He was subsequently interviewed by Special Agent Rick Newton and Special Agent David Chastain of the Arkansas State Police at 2:55 p.m. (hereinafter, "the 09.04.06 2:55 interview"). The interview was not audio or video recorded, but was recorded via notes taken by Agent Chastain. During the interview, Osburn consented to searches of both his home and truck. In addition, after the agents noticed scratches on Osburn's arms, he permitted the agents to photograph his entire body.

At 11:15 p.m. that same day, Osburn was again interviewed, this time by Special Agent Newton and Agent Boyd Boshears of the Federal Bureau of Investigation, and the interview was audibly recorded (hereinafter, "the 09.04.06 11:15 interview"). The agents repeatedly attempted to obtain information or a confession from Osburn, to no avail. Osburn *5 denied any involvement in Casey's disappearance and death and eventually stated that he wanted to get a lawyer. Despite that request, however, the interview continued. At the conclusion of the interview, Osburn was not arrested.

On September 28, 2006, however, an arrest warrant was issued for Osburn, and he was taken into custody. According to investigators, in an effort to avoid the media stationed at the SEALEC, Osburn was taken to a metal outbuilding located on the then-sheriff-elect's property near Dumas to be interviewed (hereinafter, "the 09.28.06 4:45 interview"). Again, Agents Newton and Boshears attempted to obtain a confession from Osburn, and, according to Agent Newton, used various tactics and investigative techniques in an attempt to "change his demeanor." While the transcript and the recording of the interview reveal that at one point Osburn asked the agents to call his lawyer, the interview continued.² Nonetheless, upon a subsequent request by Osburn for counsel, the 09.28.06 4:45 interview was terminated.

While Agent Newton was outside of the metal outbuilding making arrangements for Osburn's transportation, a conversation took place between Osburn and Agent Boshears, *6 which was not recorded.³ During the suppression hearing, Agent Boshears testified that Osburn asked him if he could see his family. Boshears explained that such was not his decision to make and that he would ask. He then explained the process that would take place, including transport and booking, followed by arraignment. Boshears testified that Osburn again asked to see his family and that Boshears assured Osburn that he would ask. At that time, according to Boshears, Osburn stated that he was "in a mess." After suggesting prayer, Boshears testified that Osburn asked him to pray for him and that Boshears responded that he had and he would. At that time, Boshears testified, Osburn became emotional, his demeanor changed, and he requested to see his daughter. After a brief discussion regarding faith, Boshears asked Osburn, according to the circuit court's findings, if he wanted to "keep talking," to which Osburnreplied that he wanted to "do the right thing and talk." Boshears then informed Agent Newton that Osburn "requested to continue our conversation."

Accordingly, the agents again interviewed Osburn (hereinafter, "the 09.28.06 7:25 interview"). While the 09.28.06 4:45 interview was audiotaped, the agents videotaped this interview. Osburn's Miranda rights form was reviewed and, at that time, Osburn confessed to his involvement.

Osburn was then taken to the SEALEC. While there, he briefly visited with his *7 mother, daughter, and son. Afterward, Osburn approached then-Sheriff-Elect Jim Snyder, Osburn's friend and former employer, who was standing at the door of the room in which Osburn had met with his family. Sheriff Snyder testified at the suppression hearing that Osburn denied that he "did that to that girl" and told him that he "was outside" himself "watching [himself] do it." Sheriff Snyder testified that he then went to get Agents Boshears and Newton and told them what Osburn had said, to which they responded "we better go back and talk to him." The three of them returned to the room, where Agent Boshears asked Osburn if he wanted to talk. Osburn indicated he did, and a rights form was completed. During the interview (hereinafter, "the 09.28.06 8:55 interview"), Osburn again confessed to his involvement.

Prior to trial, Osburn moved to suppress each of his statements, arguing that they were taken despite his requests for counsel and that he did not knowingly, voluntarily, and intelligently waive his rights. The State responded, and a hearing was held, at the conclusion of which the circuit court took the motion under advisement. The circuit court later entered its order, granting in part and denying in part Osburn's motion to suppress.

In its order, the circuit court made specific findings with respect to each of Osburn's interviews. Regarding the 09.04.06 2:55 interview, the circuit court found that the proof did not show that Osburn was a suspect at the time of the 09.04.06 2:55 interview and that the proof showed that Osburn was not in custody. It further rejected Osburn's argument that his *8 Miranda rights were violated with respect to this interview, finding that it was clear that Osburn was not in custody when the statement was given.

With respect to the 09.04.06 11:15 interview, the circuit court found that, during the latter part of it, "the process and procedure used by the agents became accusatory." It further found that Osburn "unequivocally invoked his 5th Amendment right to counsel" on page seventy-eight and that "[h]e had the right to do so at this time." The circuit court then concluded that:

By the time the defendant invoked his right to counsel in this case, the investigators were sufficiently focused on him as a suspect that his right to counsel had attached. Once that right is invoked, questioning must cease. Any statement of the defendant on September 4-5, 2006,⁴ after the invocation of the right to counsel is suppressed.

With respect to the...