Smith v. State
| Decision Date | 21 May 1973 |
| Docket Number | No. 5793,5793 |
| Citation | 254 Ark. 538,494 S.W.2d 489 |
| Parties | Roger Gail SMITH and Don Calvin Smith, Appellants, v. STATE of Arkansas. |
| Court | Arkansas Supreme Court |
Lady, Webb & Johnson by Frank Lady, Jonesboro, for appellants.
Jim Guy Tucker, Atty. Gen., by James W. Atkins, Asst. Atty. Gen., Little Rock, for appellee.
Appellants were convicted by a jury of burglary and grand larceny. Through their present court appointed counsel, appellants persuasively argue for reversal of the judgments that the state failed to prove the voluntariness of their confessions and did not overcome the legal presumption that the confessions were involuntary because the state failed to call material witnesses or explain their absence. We must agree with this contention which is one of first impression in our state.
In Mitchell v. Bishop, Supt., 248 Ark. 427, 452 S.W.2d 340 (1970), we said:
In the case at bar appellants contested the introduction into evidence of their alleged confessions by a motion to suppress. Accordingly, a Denno hearing was held in chambers to determine the issue of voluntariness which resulted in the court's finding, by a preponderance of the evidence, that the confessions were freely given as is required by Ark.Stat.Ann. § 43--2105 (1964 Repl.). The state offered only one witness, Kenneth McFerran, an arresting officer, to meet its burden of showing the confessions were voluntary. During appellants' interrogation, there were, also, present Trooper Snider and a stenographer, who reduced appellants' oral statements to typewritten forms. McFerran testified that he arrested appellants about 10 a.m., placed them in custody of other officers and didn't see appellants again until he returned about 10 p.m. to question them. Appellants were properly advised of their constitutional rights and signed waivers. According to McFerran, he did all of the questioning and used no force, threats, beatings, coercion, nor any promise of leniency or reward to induce appellants to make their oral confessions or to sign their typed statements the next day. McFerran did not know whether appellants were questioned by Snider during the approximate 11 hour interim between their arrest and their interrogation that night.
Both appellants agree that they were given the Miranda warnings, knew their rights, signed waivers and the typewritten statements. However, both appellants contradicted parts of McFerran's testimony. According to them, Snider questioned them during the time they were in custody and before McFerran returned that night. Also, Snider alone did all the questioning that night. Appellants testified that Snider physically abused and threatened them before conducting the interrogation that night. One testified that preceding the interrogation Snider slapped him, stuck a cocked pistol in his face and, also, said 'I can help you.' The other appellant said Sinder threatened him with a pistol and that another officer kicked him. Because of this treatment, appellants any they orally confessed their guilt and signed their controverted confessions.
After appellants testified, McFerran was recalled and reiterated that he did the actual questioning of each appellant; appellants made their statements to him only; and, although Snider was present, he didn't ask any of the questions nor offer any leniency or coercion. Also, appellants didn't complain to him nor have the appearance of having been abused, mistreated, threatened or coerced by Snider or anyone else. Again, he acknowledged that he didn't see appellants after they were placed in jail around 11 a.m. until 10 p.m. and was unaware of what happened to appellants during this 11 hour period.
The state didn't call the stenographer to testify even though she was present during appellants' interrogation, took appellants' statements down in shorthand, and reduced the statements to typewritten form. No explanation was made for her absence when it appears that she is a secretary for the local police department. Snider was not called to contradict appellants' allegations although it appears he was working out of a nearby town on the trial date. His absence was, also, unexplained. Thus, appellants' testimony as...
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Fairchild v. State
...witnesses who were connected with the controverted confession or give adequate explanation for their absence." Smith v. State, 254 Ark. 538, 542, 494 S.W.2d 489, 491 (1973). See also Brown, 347 Ark. 44, 60 S.W.3d 422; Foreman v. State, 328 Ark. 583, 945 S.W.2d 926 (1997); Griffin v. State, ......
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Fairchild v. State, CR 01-856.
...witnesses who were connected with the controverted confession or give adequate explanation for their absence." Smith v. State, 254 Ark. 538, 542, 494 S.W.2d 489, 491 (1973). See also Brown, 347 Ark. 44, 60 S.W.3d 422; Foreman v. State, 328 Ark. 583, 945 S.W.2d 926 (1997); Griffin v. State, ......
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Griffin v. State
...given," and that Griffin had "voluntarily, knowingly, and intelligently waived his 5th and 6th Amendment Rights." In Smith v. State, 254 Ark. 538, 494 S.W.2d 489 (1973), we adopted the rule that, whenever an accused offers testimony that his confession was induced by violence, threats, coer......
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Foreman v. State
...was offered by the state with respect to the objection arising from Isenberg's absence at the hearing. 2 In Smith v. State, 254 Ark. 538, 494 S.W.2d 489 (1973), we held that whenever an accused offers testimony that his confession was induced by violence, threats, coercion or offers of rewa......