Rodgers v. State, CR75-156

• Decision Date: 14 March 1977
• Docket Number: No. CR75-156,CR75-156
• Parties: Porter R. RODGERS, Sr., Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 419

547 S.W.2d 419

261 Ark. 293

Porter R. RODGERS, Sr., Appellant, v. STATE of Arkansas, Appellee.

No. CR75-156.

Supreme Court of Arkansas, In Banc.

March 14, 1977.

Ed Bethune, Searcy, for appellant.

Jim Guy Tucker, Atty. Gen., by Gary Isbell, Asst. Atty. Gen., Little Rock, for appellee.

HARRY F. BARNES, Special Judge.

On the night of September 25, 1974, Fern Rodgers was shot and killed at her home in Searcy. Approximately two weeks later Mrs. Rodgers' husband, Porter R. Rodgers, Sr., the appellant herein, was charged in her death with capital felony murder. The appellant entered pleas of not guilty and not guilty by reason of insanity.

Both the deceased and the appellant were very prominent, longtime residents of White County. Dr. Rodgers was a seventy year old physician actively engaged in a profitable medical practice in Searcy. He was estranged from his wife and had lived in a local hotel for the five or six months preceding his wife's death. The appellant had served on the State Racing Commission, was actively engaged in a farming enterprise, and was active in the breeding and showing of walking horses.

The State alleged that Peggy Hale, an employee and paramour of Dr. Rodgers, and the appellant had hired one Barry Kimbrell to "rob, rape, and kill" Fern Rodgers. The appellant was tried alone for his alleged part in this conspiracy. After a lengthy jury trial the appellant was convicted of first degree murder and sentenced to life imprisonment. The appellant now brings to this Court eight points on which he relies for reversal.

I.

Prior to being arrested and charged with his wife's murder, the appellant signed what amounted to a confession, the truth of which he subsequently denied. The appellant here contends that the introduction into evidence of that signed confession violated appellant's rights to counsel and to refrain from incriminating himself.

No question is raised in this appeal relative to the procedures followed by the trial court in determining the admissibility of the confession. Appellant's only argument is that the conduct of the police in obtaining the confession, considered in light of all the other circumstances, was such as to compel exclusion of the confession for the stated reasons.

The facts and circumstances surrounding the confession will now be set forth in some detail. The so-called confession consisted of admissions by the appellant that he had, with the assistance of Peggy Hale, hired Barry Kimbrell to kill Fern Rodgers. During the course of the police investigation of this crime the appellant was interviewed some five or six times. The confession was the product of the last such interview. To establish the totality of the circumstances surrounding the confession, it is necessary to review that particular interview, as well as the two interviews immediately preceding it.

Peggy Hale was arrested in connection with Mrs. Rodgers' murder at about noon on November 8. Shortly thereafter, the appellant appeared at the White County Courthouse and sought to arrange a bond for her release. Appellant was immediately informed by the police that he was a suspect in the murder of his wife. Appellant was given a Miranda warning and promptly signed a written waiver of those rights. Appellant had also been given Miranda warnings on two prior occasions. This conversation between the appellant and the officers was electronically recorded. It contained no statements which would tend to incriminate the appellant. During the course of the interview, the appellant told the officers that he wanted to talk to his lawyer before he made any definite statement relative to his wife's death. The transcript of the interview reveals that one of the police officers told the appellant that he had, indeed, better spend some of his money on a good lawyer. The interview was terminated without further interrogation and without the appellant being arrested. The entire interview lasted approximately one hour.

The next police interview with the appellant occurred during the early morning hours of November 9. Prior to that interview the police investigators had obtained statements from both Hale and Kimbrell which implicated them, together with the appellant, in the murder of Mrs. Rodgers.

The appellant was asked by the police if he would agree to come to the prosecuting attorney's office for the purpose of discussing some new developments in the case. The appellant agreed. A police car went to the appellant's hotel and transported him to the prosecuting attorney's office. This occurred at approximately 3:00 A.M. the morning of November 9.

Upon arriving, the appellant was informed by Officer W. A. Tudor that he was a suspect in the capital felony murder investigation of his wife's death. The appellant was again informed of his rights, specifically that he had the right to remain silent and the right to have an attorney present during the interview. At 3:21 A.M. the appellant signed a written waiver of these rights. Dr. Rodgers was then confronted with statements of Hale and Kimbrell, which had been recorded electronically and transcribed. At the request of the appellant he was also permitted to personally confront Miss Hale, who confirmed to the appellant that she had made the statement to the police.

This second interview with the appellant was also recorded. The appellant made a tacit admission of his involvement in the murder, as well as a specific request for the assistance of an attorney.

I only admit that Peggy Hale has always been truthful with me and I do not deny that what she said in the tape recording was true but I want to consult with my attorney, Leon Catlett, before I make any further statements.

Miss Hale, who was also present, recalled the appellant stating to the officers that " . . . he would contact his lawyer and get back in touch with them. . . ."

The second interview was terminated, again without the appellant being placed in custody or his freedom otherwise restricted. A police officer, James Lester, drove the appellant back to his hotel at approximately 4:45 A.M.

Lester testified that he did not attempt to interrogate the appellant during the trip to the hotel. However, Dr. Rodgers did, according to Lester, state that he had several things on his mind that he wanted to talk to Lester about, but that the appellant did not feel like talking then. Lester stated that he would be glad to talk to the appellant and they agreed to meet at noon that day in Room 124 of the Kings Inn Motel. That was the motel where the State Police personnel were staying while in Searcy and Room 124 was the room occupied by Lester.

Dr. Rodgers' confession occurred during his next, or third, interview with the police. While there is substantial conflict between the appellant's and the police version of this interview, several facts related to it are not in dispute. These facts, which are either admitted or uncontradicted, include the following. The appellant met Lester between 12:30 P.M. and 12:45 P.M. on November 9 in Room 124 at the Kings Inn Motel. While there the appellant ordered lunch from the motel room service, which he and Lester ate in the room. The appellant and Lester were alone in Room 124 most of the time. However, three other policemen and a motel waitress were in and out of the room during the afternoon for periods of a few minutes each. Lester and the appellant stayed in Room 124 until 2:45 or 3:00 P.M. They then drove together in Lester's vehicle to the prosecuting attorney's office. Since no one was in the office, Lester requested that another policeman, Doug Stevens, be present during the interview with the appellant. Stevens was present during the entire interview. At about 3:10 P.M. the appellant executed a written waiver of his Miranda rights. The appellant then apparently, although he denies any recollection of it, made a statement to Lester which was incorporated in the confession. The appellant then affixed his signature to each page of the confession. The interview was concluded at about 4:49 P.M., whereupon Lester immediately placed the appellant under arrest for the murder of Fern Rodgers.

The appellant's version of the interview contains the following facts which are at odds with the police version. Officer Lester, not the appellant, initiated the interview. Lester first phoned the appellant at about 10:00 A.M. stating that he wanted to talk to the appellant. The appellant readily agreed, but Lester said he was busy then and would have to phone back later. Lester telephoned again about 11:00 A.M. and told the appellant to meet him at the appellant's room in Noble's Motel. The appellant again readily agreed. Lester phoned again a third time at about 11:45 A.M., and, according to the appellant, said, "We'll meet at the motel." Finally, the appellant testified that Lester called less than ten minutes later and told the appellant to meet him at Room 124 at the Kings Inn.

The appellant describes the interview or interrogation itself in the following terms:

I arrived at Room 124 of the Kings Inn at about 12:30 and Lester let me in. He said he meant business. He showed me his pistol and said, "I hope we don't have to use this pistol but I can sure use it." His face was red. I was afraid of the man and I was tired so I sat down on the bed. He told me, "We are going to bring this thing to a head today." There was no one else in the room but on occasion he would leave the room and go into the adjoining room and talk to someone. Once when he came out of the adjoining room I saw what looked like a whiskey bottle in his hand. I could tell he was mad and he showed me his pistol twice. Stevens and the other man came by the room and talked to Lester. I was in the room over two hours and was hungry so I ordered some food. Lester kept trying to get me to talk and I told him two or three times that I would have a talk with Leon Catlett, my lawyer. He said, "To hell with...