Ross v. State
| Decision Date | 30 September 1974 |
| Citation | 257 Ark. 44,514 S.W.2d 409 |
| Parties | Andrew Jackson ROSS, Appellant, v. STATE of Arkansas, Appellee. No CR 74--35. |
| Court | Arkansas Supreme Court |
Murphy, Carisle & Taylor, Fayetteville, for appellant.
Jim Guy Tucker, Atty. Gen. by Alston Jennings, Jr., Asst. Atty. Gen., Little Rock, for appellee.
Andrew Jackson Ross, in 1971, the Treasurer of Pope County, Arkansas, was charged with the crime of embezzlement the Information alleging 86 transactions of embezzlement of public funds in his custody and possession, it being alleged that the embezzlement occurred between January 5, 1971 and December 10, 1971. On trial, the jury found Ross guilty and his punishment was fixed at 21 years imprisonment in the Arkansas Department of Correction. From the judgment so entered, Ross brings this appeal. For reversal, four points are relied upon, which we proceed to discuss.
It is first asserted that a confession given by appellant was not freely and voluntarily made and was therefore inadmissible, this contention being based on the premise that the statement was given in consideration of a promise of leniency. We do not agree. Priro to the introduction of appellant's statement into evidence, a Denno 1 hearing was held in chambers on motion of the State, and at such hearing the Sheriff of the County and Robert H. Williams, original counsel 2 employed by Ross, testified, the latter being called by appellant. Williams testified that he had earlier entered into plea bargaining negotiations with the prosecuting attorney and had received assurances that that official would recommend to the court a 15 year sentence, 10 years being suspended, if Ross should plead guilty to the charges. The attorney testified that he gave this information to his client and was advised by the latter that the agreement was acceptable, and what Ross 'wanted to do.' Williams very clearly stated that the agreement was not contingent in any manner upon Ross agreeing to give a confession and, in fact, the lawyer testified that the agreement on the recommendation of time to be served was made before the prosecuting attorney asked for any statement. These were the only witnesses who testified in chambers and the court held the statement to be voluntarily made, commenting further to the effect that in instances where agreements had been reached between the State and defense, following plea bargaining, and a statement was subsequently given, such statement, under appellant's theory, no matter how voluntary, would be inadmissible if a defendant decided to retract such confession. In the trial itself, Williams reiterated the testimony given in chambers and further testified that the statement was taken in his office. Mr. Williams, a capable and experienced attorney, was present the entire time and thus was in a position to advise his client during the questioning. The attorney also testified that Ross was entirely willing to make a statement. Appellant relies upon People v. Jones, 8 Ill.App.3d 849, 291 N.E.2d 305, where the court held a confession to be inadmissible, such confession being rendered after an agreement had been reached by the State and defense during plea bargaining. We do not consider the case applicable to the fact situation at hand. In Jones, the testimony on the part of the defendant (which was sharply disputed) reflected that the promise of leniency was conditioned upon that defendant testifying on behalf of the State against another defendant; Jones was told that he could get 40 to 50 years if he went to trial. The opinion further reflects that the statement was taken by an Assistant State's Attorney in his office, counsel for defendant not being present. It is at once apparent that there is but little, if any, similarity in that case and the one at hand. In addition to the differences in the circumstances surrounding the statement here in issue, it will also be noted that Ross himself does not contend that the agreement reached between the prosecuting attorney and his counsel had any bearing on his willingness to give the statement. Not a single witness testified to such a fact. In fact, appellant admits in his brief that the confession was not given in consideration of the agreement between the State and defense counsel, appellant stating:
'The testimony reflects that an agreement had been reached between the appellant's attorney and the Prosecuting Attorney and the statement given by the appellant was purely for whatever extrajudicial purposes the Prosecuting Attorney might have had.'
It is true that the attorney said that he would not have permitted the statement to have been made except for the agreement which had already been consummated, but this would seem to be the obvious view of an experienced attorney, and certainly has nothing to do with the voluntariness of the statement. For that matter, in Jones, the court held that the issue of voluntariness was a question for the trial court to determine and stated that a reviewing court will not disturb such a finding unless there is a showing that it is contrary to the manifest weight of the evidence. 3
Appellant's brief also devotes a paragraph to an assertion that the confession was inadmissible for the reason that Ross, during interrogation, indicated that he wished to answer no more questions. We find no merit in this contention. In the first place, this issue was not raised in the trial court. The record reflects the following colloquy between the court and defense counsel, as follows:
This objection, which has already been thoroughly discussed, was the only objection made to the admission of the confession. It might be added that Ross never declined to answer questions, and indicated only once that he was tired. Certainly, the finding of the Pope County Circuit Court that the confession was voluntarily made is not against the weight of the evidence.
It is next urged that the appellant lacked the mental capacity to voluntarily waive his constitutional rights, and that this lack of mental capacity was made known to the State at the time the confession was obtained. Let it be said at the outset that no objection along this line was made to the trial court at all. As previously stated, the only objection to this confession made to the circuit court was that it was the result of coercion, i.e., made on the basis of the understanding that Ross would receive a lesser sentence. Under our procedure and cases, we do not consider arguments raised for the first time in this court on appeal. See Travelers Insurance Company v. McCluskey, 252 Ark. 1045, 483 S.W.2d 179. This actually could preclude consideration of the point but inasmuch as this is ...
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Mobley ex rel. Ross v. Meek
...of embezzling public funds and sentenced to custody for 21 years. His conviction was affirmed by the Supreme Court of Arkansas. 514 S.W.2d 409 (Ark.1974). During the state's case in chief the state offered in evidence a detailed confession made by appellant after a plea bargain had been agr......
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Hutto v. Ross
...and respondent was convicted and sentenced to 21 years' imprisonment. On appeal, the Arkansas Supreme Court affirmed. Ross v. State, 257 Ark. 44, 514 S.W.2d 409 (1974). This Court denied certiorari. 421 U.S. 931, 95 S.Ct. 1658, 44 L.Ed.2d 88 (1975). Respondent then filed a petition for a wr......
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Mobley ex rel. Ross v. Meek, FS-75-65-C.
...years in the Arkansas Department of Correction. He appealed to the Supreme Court of Arkansas which affirmed in a case reported at 257 Ark. 44, 514 S.W.2d 409. Application to the U. S. Supreme Court for certiorari was heard and denied by the United States Supreme Court. It is alleged and con......
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Hixson v. Housewright
...was offered and received for an expressly limited purpose allowed by law. The Supreme Court of Arkansas said in Ross v. Arkansas, 257 Ark. 44, 514 S.W.2d 409, 413 (1974) (quoting 22A C.J.S. Criminal Law § "Proper evidence which proves or tends to prove a common scheme, plan, design, or syst......