Shaw v. State

• Decision Date: 10 July 1989
• Docket Number: No. CR,CR
• Citation: Shaw v. State, 773 S.W.2d 827, 299 Ark. 474 (Ark. 1989)
• Parties: Andrew SHAW, Appellant, v. STATE of Arkansas, Appellee. 89-4.
• Court: Arkansas Supreme Court

Page 827

773 S.W.2d 827

299 Ark. 474

Andrew SHAW, Appellant, v. STATE of Arkansas, Appellee.

No. CR 89-4.

Supreme Court of Arkansas.

July 10, 1989.

Arthur S. Margulis, St. Louis, Mo., John Wesley Hall, Jr., Little Rock, for appellant.

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

HAYS, Justice.

Appellant, Andrew Shaw, was charged and convicted of several offenses, all stemming from his actions in avoiding apprehension by the police over a two-day period in May, 1988. From those convictions appellant brings this appeal, arguing six points for reversal.

The events began on Monday, May 16, in Harrison, Arkansas, when Officer Rick Riggs of the Harrison Police Department attempted to stop appellant for questioning on possession of stolen goods. Appellant ran from his car and eluded police. The police recovered a pistol from appellant's car where they also found appellant's girlfriend and her three small children.

Appellant continued on foot until he commandeered a car and drove to Missouri. He returned to Harrison the next day, to pick up his girlfriend. As they were leaving Harrison, they were seen by Officer Brian Snavely who noticed appellant's taillight was broken and that his license tags were not visible. Snavely put on his blue light and appellant brought his car to a stop at the side of the road. Snavely got out and as he approached appellant's car, appellant fired at him with a sawed-off shotgun, seriously injuring Snavely.

Appellant immediately left Harrison and, en route to Missouri, abandoned the car he was driving for a pickup truck he found with keys in it. He continued to drive toward Carroll County, about seventeen miles from Harrison, with the police in pursuit. About four miles into Carroll County, appellant encountered a roadblock. He tried to run the roadblock and in doing so Officer Dwyer was injured as he was hit by a patrol car. Police arrested appellant the next day in Carroll County and appellant was then returned to Harrison.

Appellant's trial began on September 1, 1988. He was convicted and received sentences totalling seventy-three years for the offenses of 1) attempted capital murder, 45 years; 2) felony fleeing, six years; 3) possession of a firearm by a felon, two counts, six years each; 4) theft of property, ten years; 5) unauthorized use of a vehicle, one year; and 6) misdemeanor fleeing, thirty days.

Appellant first argues that neither his waiver of Miranda rights nor his confession was voluntary. There is no merit to either contention. Custodial statements are presumed to be involuntary and the state has the burden of proving otherwise. This court makes an independent review of the totality of the circumstances and will reverse only if the trial court's finding is clearly against the preponderance of the evidence. Fleming v. State, 284 Ark. 307, 681 S.W.2d 390 (1984). The credibility of the witnesses who testify to the circumstances surrounding the defendant's custodial statement is for the trial court to determine. Smith v. State, 286 Ark. 247, 691 S.W.2d 154 (1985).

The factors to consider for both the voluntariness of the waiver and the statement are essentially the same. They include: age, education and intelligence of the accused, length of detention, repeated or prolonged questioning, the use of mental or physical punishment, and the advice or lack of advice of constitutional rights. See Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988); Hatley v. State, 289 Ark. 130, 709 S.W.2d 812 (1986).

In this case, the only contention appellant makes as to any deficiency in the waiver and statement process is that because of his flight, he was "tired and weakened" and "almost delirious" and this was sufficient to render both the waiver and the statement involuntary. Appellant's argument is conclusory only and cites to no authority that this is a sufficient basis to render the confession involuntary. Neither are there any facts in the record to support such a claim. Appellant made no statement at the suppression hearing that his condition in any way made the confession unknowing or involuntary.

Appellant had been eluding the police from Monday, May 16th until he was picked up about 4:00 a.m. on the 18th, however, he had eaten and slept intermittently. His statement was taken within three hours from the time he was picked up and prior to taking a statement, appellant's rights were given to him. After his rights were read, the following exchange occurred:

Appellant: Yeah, I understand them right.

Officer: And that you wish to waive them at this point?

Appellant: Yeah, I wish to waive them, you know the deal.

Appellant then gave a statement to police that was detailed and thorough.

At the suppression hearing, in addition to noting that he was quite tired during the time he gave his statement to the police, appellant also stated that he remembered little of the events and could not remember waiving or signing his rights form. In a similar case, Hunes v. State, 274 Ark. 268, 623 S.W.2d 835 (1981), the appellant claimed he had taken drugs prior to the time he was interrogated and was unable to remember being questioned or signing the confession. We found the state's evidence was that the appellant appeared to be lucid and understood his rights and it was for the trial court to weigh the evidence and resolve the credibility of the witnesses. So it is in this case, and we find no basis for error.

Appellant also argues that the trial court erred by making an express finding only as to the voluntariness of the waiver and by failing to make a clear finding on the voluntariness of the confession, citing Simms v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967). Appellant however, made no objection at the time the trial court made its ruling nor was there any request for further clarification. Failing that, the issue is precluded from review on appeal. Stephens v. State, 293 Ark. 366, 738 S.W.2d 91 (1987); Shelton v. State, 271 Ark. 342, 609 S.W.2d 18 (1980).

Appellant next argues that the trial court erred in denying appellant's motion to dismiss the felony fleeing charge on the basis that it had no jurisdiction of the offense. Appellant implicitly conceded at the hearing that the felony flight charge began in Boone County. He points out, however, that the injury to Officer Dwyer, which injury raised the offense to a felony, see Ark.Code Ann. § 5-54-125(c)(3) (1987), occurred in Carroll County. Therefore, he argues, as the offense was not complete until the injury in Carroll County, the trial for that offense must be held in that county and Boone County was without jurisdiction. Appellant cites to Art. 2, § 10 of the Arkansas Constitution which provides that the accused is entitled to a trial by jury in "the county in which the crime shall have been committed." The argument is summarily dispensed with by Ark.Code Ann. § 16-88-108(c) (1987):

Where the offense is committed partly in one county and partly in another, or the acts, or effects thereof, requisite to the consummation of the offense occur in two or more counties, the jurisdiction is in either county.

Appellant also argues that the trial court erred in its instructions to the jury on the two separate counts of fleeing. He maintains his rights against double jeopardy were violated, contending first that he could only be charged with one continuous act of fleeing, not two, under Ark.Code Ann. § 5-54-125, and second, that the instructions were not sufficiently clear to allow the jury to know which instruction should be applicable to appellant's flight. However, appellant made no objections to the instructions, and his only objection to either of the fleeing charges was to the felony charge on the jurisdictional argument just discussed. To preserve the point for appeal, appellant must have made a specific objection below, and he may not change those grounds on appeal. Harris v. State, 295 Ark. 456, 748 S.W.2d 666 (1988).

Appellant next argues that ...