Ryan v. State

• Decision Date: 12 November 1990
• Docket Number: No. CR,CR
• Citation: 303 Ark. 595,798 S.W.2d 679
• Parties: Craig Martin RYAN, Appellant, v. STATE of Arkansas, Appellee. 90-72.
• Court: Arkansas Supreme Court

Page 679

798 S.W.2d 679

303 Ark. 595

Craig Martin RYAN, Appellant, v. STATE of Arkansas, Appellee.

No. CR 90-72.

Supreme Court of Arkansas.

Nov. 12, 1990.

Craig Martin Ryan, pro se.

Clint Miller, Asst. Atty. Gen., Little Rock, for appellee.

TURNER, Justice.

The appellant, Craig Ryan, was convicted on charges of possession of cocaine with intent to deliver, possession of marijuana with intent to deliver, and possession of drug paraphernalia; he was sentenced to a total of sixty years imprisonment. In appealing the convictions, the appellant contends, first, that the admission into evidence of his statement given to law enforcement officers four days after the arrest and prior to his arraignment was error and, second, that the trial court should have suppressed the evidence seized in a warrantless search of the appellant's vehicle. Finding no error, we affirm.

Chief of Police Robert Wochner of the Bull Shoals Police Department found the appellant's unattended and disabled automobile on the side of Highway 178 on August 18, 1989. Shortly after Chief Wochner's arrival, the appellant appeared with a tire and sought the assistance of the officer in moving the car from the roadway. Prior to permitting the appellant to operate the vehicle, Chief Wochner requested Ryan to produce an operator's license and proof of insurance as required by Arkansas law. Ryan could produce neither and was therefore arrested and taken to the Marion County Sheriff's Department where the officer also directed the auto be towed.

After the appellant was processed at the Marion County Sheriff's Office, Chief Wochner proceeded with an inventory search of the vehicle, a procedure routinely followed when an automobile is impounded. In the course of the search, the officer discovered five plastic pouches containing a white crystalline powder (later identified as cocaine) and drug paraphernalia in a pillow case located near the driver's seat of the automobile. At that point, the inventory search was terminated and a search warrant was obtained from the municipal judge.

Upon returning to the appellant's car, Chief Wochner, accompanied by state police and county officers, completed the search pursuant to the warrant. The search yielded a quantity of marijuana, two hollow aluminum baseball bats containing cocaine residue, and other items of drug paraphernalia. Officers also found a passport and other documents indicating Ryan had been in Colombia.

During the afternoon of August 18, prior to questioning, the appellant was advised by the officers of his Miranda rights. When questioned, Ryan gave the officers general information but made no incriminating statements.

On August 21, the appellant, without solicitation, advised Chief Wochner that he might be willing to discuss his situation with federal agents. On the following day, August 22, the appellant was again advised of his Miranda rights, which he acknowledged by initialing a form provided to him. Thereafter, the appellant, without an attorney being present, gave an incriminating statement in the presence of Chief Wochner, a United States Drug Enforcement Administrative agent, and two United States Customs Service Agents. The statement was introduced at the subsequent trial.

The appellant told the investigating officers that he had been to Colombia several times and that he had brought three pounds of cocaine into the United States using the hollow baseball bats. He stated that he bought cocaine in Colombia for $1,700 per pound, had flown into Mexico, and on two separate occasions had walked across the border at Brownsville, Texas, with the bats. The first time he carried one pound of cocaine and the second time two pounds. Ryan said this was his personal cocaine to sell to make more money to return to Colombia for a larger deal. During the course of the interview, Ryan expressed an interest in being released and sent to Colombia where he could work as an undercover agent for the Drug Enforcement Administration.

The appellant had not been arraigned at the time the incriminating statement was given. Further, he was not arraigned until August 28, 1989, ten days after the arrest.

Arkansas Rule of Criminal Procedure Rule 8.1 directs that "An accused person who is not released by citation or by other lawful manner shall be taken before a judicial officer without unnecessary delay." The appellant's first point for reversal turns on the interpretation of the phrase "unnecessary delay." In Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987), we noted that neither the rule nor the commentary to the rule provides guidance in interpreting the meaning of the term or the effect a violation would have on the admissibility of evidence procured during such a delay. Although we considered authorities that established fixed time limits for taking an accused before a judicial officer in determining the voluntariness of a confession, this court did not decide upon a specific time limit. Instead, we adopted the Pennsylvania three-part test, set forth in Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977), requiring that in order for evidence obtained from a statement voluntarily made to be ruled inadmissible: "(1) the delay must be unnecessary; (2) the evidence must be prejudicial; (3) the evidence must be reasonably related to the delay." 291 Ark. at 529, 726 S.W.2d 653 (Emphasis in original.) In Duncan, the appellant was mildly retarded, was neither given a Miranda waiver form to sign nor asked whether he waived his rights, and was kept incommunicado for three-and-a-half days, after which he gave an inculpatory statement. As a result, all three requirements were deemed to be satisfied, and the confession was excluded as evidence.

The appellee concedes that the first two elements of the test--unnecessary delay between the time of arrest and arraignment and prejudicial statement--are present. Only the difficult issue of the relationship, if any, of the evidence to the unnecessary delay remains to be considered. The record in this case establishes that at the time of Ryan's arrest on Friday, August 18, 1989, the earliest time at which he could be expected to be taken before a judicial officer and arraigned would have been on the following Tuesday, August 22. On Monday, August 21, the appellant suggested or requested an audience with federal officials which was accomplished the following day, August 22. There is no showing why the appellant could not have been arraigned prior to the confession conference on Tuesday; however, it does not appear that the appellant, who was seeking to secure the best deal possible from the state and federal officials, would have likely acted any differently had his arraignment occurred prior to the conference.

The real issue here is not whether the ten-day delay before the appellant's appearance before a magistrate was unreasonable and unnecessary: it was. The crux of the matter is whether or not the failure to arrange for the appellant's appearance during the period from Friday afternoon to shortly before noon on Tuesday was unnecessary and prejudicial and whether the confession given on Tuesday was reasonably related to that delay.

In Branscomb v. State, 299 Ark. 482, 774 S.W.2d 426 (1989), the defendant arrived at jail on a Thursday and the following Friday morning waived his rights and gave inculpatory statements to a police investigator. The following Monday he was taken before the municipal court, which met only on Mondays. We held the evidence to be admissible and unrelated to the delay. In distinguishing Branscomb and Duncan, we noted that, unlike the defendant Branscomb, Duncan was held incommunicado for three days; further, in Duncan, the officers admitted their verbal abuse.

In Owens v. State, 300 Ark. 73, 777 S.W.2d 205 (1989), where the defendant was detained two-and-a-half days before giving an inculpatory statement and three-and-a-half days prior to his appearance before a judicial officer, we held that the statement was not reasonably related to the delay. We again recited the distinctive factors set forth in Duncan, where the criteria was established, and distinguished Owens by pointing out that Owens was not denied access to family members, friends or an attorney. 300 Ark. at 77, 777 S.W.2d at 206-207.

We recognize the subjective nature of the "reasonably related" test. However, we are not here saying that the holding of an accused incommunicado or the subjecting of the accused to verbal abuse or threats or the denying of access to family or friends are requirements for satisfying the third prong of the Duncan test. By the same token, we are not prepared to say that the mere passage of time from Friday afternoon to Tuesday morning in this instance necessarily indicates that the statement is related to the delay. Each case must be considered taking into account the totality of the circumstances. Under the circumstances existing in the present case, we find that the...