Rouw v. State

• Decision Date: 21 May 1979
• Docket Number: No. CR79-15,CR79-15
• Citation: 581 S.W.2d 313,265 Ark. 797
• Parties: Alan Wayne ROUW, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 313

581 S.W.2d 313

265 Ark. 797

Alan Wayne ROUW, Appellant, v.STATE of Arkansas, Appellee.

No. CR79-15.

Supreme Court of Arkansas, In Banc.

May 21, 1979.

Rehearing Denied June 25, 1979.

Buford M. Gardner, Jr., Harrison, for appellant.

Steve Clark, Atty. Gen. by E. Alvin Schay, Asst. Atty. Gen., Little Rock, for appellee.

HICKMAN, Justice.

Alan Wayne Rouw, a juvenile, was found to be a delinquent, having committed the crime of manslaughter.He was ordered committed to the Arkansas State Training School by the Circuit Court of Carroll County.

On appeal Rouw alleges six errors.We find no merit to any of these arguments except those relating to statements made by Rouw to law enforcement officers.Those statements, we find, were not voluntary as defined by the law and they should not have been admitted into evidence against Rouw.For that reason the judgment of the circuit court is reversed and the cause is remanded.

The tragic incident precipitating the charge was a shooting of Lisa Evans, age thirteen, a neighbor and schoolmate of Rouw's.She was found dead in her living room by her mother on the afternoon of October 13, 1977.The autopsy showed a single gunshot wound to her head.

The sheriff's office conducted an investigation of the incident and questioned Rouw about his whereabouts on that day.He had been seen near the Evans home carrying what appeared to be a rifle.He admitted that he had gone hunting that day in nearby woods but denied that he was at the Evans home or knew anything about the shooting.The gun that he had carried, a .22 caliber rifle, was shown to the officers.

The next day a deputy sheriff walked with Rouw the route he claimed to have taken when he was hunting.No shells were found where Rouw claimed he had stopped to shoot at some buzzards.A few days later, on the 18th of October, the sheriff ordered Rouw brought in.

A deputy sheriff, C. W. Elrod, picked up Rouw at his home and brought him to the sheriff's office.Elrod later testified that Rouw had made a voluntary statement to him en route to the sheriff's office in which he admitted shooting Lisa Evans.The next day, the 19th of October, the sheriff took a statement from Rouw at about 11:00 a. m. On October 20, an investigator for the Benton County Sheriff's Department took a statement from Rouw.These statements were all admitted into evidence against the objection of the defendant and we agree that they should not have been admitted.

Legally, these statements were confessions and it is a rule of law that in making such a confession, one must voluntarily, knowingly and intelligently waive his right to remain silent before it can be admitted against him.Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694(1966).The test for determining whether such statements are voluntary is that on appeal we examine the totality of the circumstances related to the statements, Harris v. State, 244 Ark. 314, 425 S.W.2d 293(1968), and will affirm the trial court's finding unless it is clearly against the preponderance of the evidence.Degler v. State, 257 Ark. 388, 517 S.W.2d 515(1974).

In this case Rouw was a minor, age 14 years and 11 months at the time the statements were taken.While youth alone is not a circumstance that will prevent a voluntary confession or a knowing waiver of constitutional rights, it is a factor to be considered.Mosley v. State, 246 Ark. 358, 438 S.W.2d 311(1966).Neither parent signed a waiver of rights form or testified they were so advised.The fact that the parents have not been advised of the rights of the child prior to questioning is also a factor to be considered.The statements in question here were taken over a period of three days while Rouw was in "protective custody."The length of the interrogation is a factor.Vaughn & Wilkins v. State, 252 Ark. 505, 479 S.W.2d 873(1972).The sheriff ordered Rouw in for questioning; his parents were advised that they were holding him for "protective custody."Deception by any official alone will not invalidate an otherwise voluntary confession, but it also is a factor to be considered.Dewein v. State, 114 Ark. 472, 170 S.W. 582(1914).

It was not disputed that none of the provisions of the Arkansas Juvenile Code, Ark.Stat.Ann. § 45-401, et seq.(Repl.1977), were complied with.Rouw remained in the county jail for 20 days.He was not immediately taken before a juvenile court; his rights were not explained to him until the day after he was taken into custody when he signed a rights form just prior to giving a statement to the sheriff; and, there was no evidence presented by the State that he was ever served with a copy of a petition or summons regarding the charge.In fact, the circuit court reversed the first hearing on this matter because he had not been served a copy of the petition.Even though we do not agree with appellant's contention that statutory noncompliance is alone grounds for suppression of the statements, we hold that the State's failure to comply with the provisions of the Juvenile Code is another factor to be considered in reviewing the totality of the circumstances.¹

The sheriff admitted that Rouw became a suspect at the time he accompanied the deputy sheriff to the woods to look for spent shells.It is not disputed that Rouw was not informed that he was a suspect.The sheriff testified he was brought in for "questioning," yet he was not informed of his rights until October 19 immediately before a statement was taken from him.The sheriff admitted that Rouw was scared and broke down once or twice when they were talking to him.

Defense counsel questioned the sheriff about whether Rouw had refused to sign a rights form when he was brought in; his answers to those questions are as follows:

A.Sir, when he was booked in, it shows where it shows booked in, the time was 7:15 P.M. I believe.This was probably a little bit earlier than that, that he was brought in.

Q.Alright.Was he booked before or after you had your conversation with him?

A.I don't recall, sir.I would say we were I probably had a conversation with him, we had a conversation all during the time from the time he came into the S.O., (sheriff's office) so it's hard for me to say.

Q.Did you give him one of those rights forms to fill out that evening?

A.I don't believe so, sir.

Q. Isn't it a fact that he was given a rights form and he refused to sign it?

A.I could not honestly answer that.

Q.You don't recall that either?

A.I'm not positive.He possibly could have.I wouldn't deny it.I don't know, sir, I can't recall.

The sheriff's answers to questions about exactly what Rouw was informed of when he was considered a suspect are as follows:

Q.Alright.Now, when did he become a suspect?

A.I believe, in my opinion when he became a suspect was when it was probably at the time we walked back with him on his route that he indicated to us that he had went up to the tree where he claimed he shot into a squirrel's nest and of course, along with the other conversations we had had with neighbors down the road.

Q.At the time he became a suspect did you advise him of his rights at that time?

A.He wasn't in custody.

Q.Did you advise him of my question is: did you advise him of his rights?

A.No, sir.

Q.Alright.You had other conversations with him after that?

A.Yes.

Q.After he had become a suspect you had other conversations with him?

A.Yes.

Q.Did you advise him before those conversations of his rights?

A.No, sir.

Deputy Sheriff Elrod testified that after he picked up Rouw at his parents' home, and on the way to the sheriff's office, Rouw told him that he had shot the girl.Elrod did not testify at either of two other hearings in this matter.The deputy sheriff said it was "voluntary."The deputy sheriff admitted that he did not at any time ever advise Rouw of his rights.The day after the first statement taken by the sheriff, which would have been the 20th, Rouw was to have taken a polygraph test to be administered by an investigator for the Benton County Sheriff's Department.His father signed a form to give permission but he was not advised of his son's rights before taking the polygraph.After Rouw was in the room with the officer, according to the officer, Rouw decided to make a statement at which time he was given a rights form which he signed.Rouw's father was outside the room and was not consulted.A statement was taken from Rouw, and the polygraph was never administered.

It is the burden of the state to prove that a person voluntarily and knowingly waives his constitutional rights.Miranda v. Arizona, supra.

When all of the circumstances are considered in this case, there is no doubt that the State did not satisfy its burden.His parents were told he would be taken in for protective custody.He was questioned that evening and perhaps the next day before he made a statement which was recorded.At no time that evening or the next morning before 11:00 a. m. was he advised of his rights.This is admitted.There is no written evidence that his parents were advised of his rights.None of the provisions of Arkansas law regarding treatment of juveniles were complied with.

In a similar case where a voluntary statement was made to a policeman in the presence of a third person, it was held that the confession was admissible.Little v. State, 261 Ark. 859, 554 S.W.2d 312(1977).However, in that case the deputy sheriff testified he advised the minor of her rights when she got into the vehicle.Furthermore, the minor was aware that she was a suspect and was charged with a killing.Neither of these circumstances exist in this case.

Here, the sheriff admitted that Rouw was questioned before he was advised of his rights, a clear violation of the spirit of Miranda.The only evidence at all that he knew that he was waiving his rights is a form that contained his signature which was signed the next day.

His parents disputed they were ever advised...