Tabor v. State

• Decision Date: 04 June 1998
• Docket Number: No. CR,CR
• Citation: 333 Ark. 429,971 S.W.2d 227
• Parties: Joel Keith TABOR, Appellant, v. STATE of Arkansas, Appellee, 97-467.
• Court: Arkansas Supreme Court

Page 227

971 S.W.2d 227

333 Ark. 429

Joel Keith TABOR, Appellant, v. STATE of Arkansas, Appellee,

No. CR 97-467.

Supreme Court of Arkansas.

June 4, 1998.

Brenda Horn Austin, Fayetteville, for Appellant.

Winston Bryant, Attorney General, C. Joseph Cordi, Jr., Assistant Attorney General, Little Rock, for Appellee.

CORBIN, Justice.

Appellant Joel Keith Tabor entered conditional guilty pleas to the offenses of delivery of cocaine, conspiracy to deliver cocaine, and conspiracy to deliver marijuana. He was sentenced by the Boone County Circuit Court to twelve years' imprisonment, with imposition of six years suspended, for the two cocaine charges and six years' imprisonment for the marijuana charge. Pursuant to A.R.Cr.P. Rule 24.3, Appellant reserved the right to appeal the trial court's denial of his motion to suppress the statements given by him to police officers. Our jurisdiction is pursuant to Ark. Sup.Ct. R. 1-2(a)(7), as this is a second appeal following an appeal decided in this court. See Tabor v. State, 326 Ark. 51, 930 S.W.2d 319 (1996). For reversal, Appellant argues that the trial court erred in denying his motion to suppress, as he contends he had been granted immunity in exchange for his statements. We find no error and affirm.

Appellant was arrested for the foregoing charges on April 14, 1994, and subsequently filed a motion to suppress statements given by him to police during October and November of 1991 and January of 1994. During the interviews, Appellant admitted to participating in drug transactions involving the sale of cocaine and marijuana. Appellant later claimed that he was entitled to immunity and that the statements could not be used against him. A suppression hearing was conducted on February 13, 1995, after which the trial court denied the motion. The trial court ruled that Appellant had not been granted immunity or promised anything in exchange for his incriminating statements to police officers.

On May 12, 1995, Appellant pleaded guilty to the charges and appealed the suppression ruling to the Arkansas Court of Appeals. The State moved to dismiss the appeal because Appellant had failed to reserve his right to appeal from his guilty pleas as required by Rule 24.3. The court of appeals accordingly dismissed the appeal on January 17, 1996. Appellant then filed a petition to reinstate the appeal on the grounds that the parties had entered into a stipulation to supplement the record to reflect Appellant's intention to enter his guilty pleas on the condition that he would be allowed to appeal the ruling on the suppression motion. The court of appeals, in a divided decision, remanded the case to settle the record. See Tabor v. State, 52 Ark.App. 251, 918 S.W.2d 189 (1996). This court granted the State's petition to review that decision, and subsequently dismissed the appeal for want of jurisdiction for Appellant's failure to comply with the express terms of Rule 24.3(b). Tabor, 326 Ark. 51, 930 S.W.2d 319.

Following this court's dismissal of the appeal, Appellant successfully petitioned the trial court to withdraw his guilty pleas pursuant to A.R.Cr.P. Rule 26.1. He then entered conditional guilty pleas to the same charges on January 10, 1997, this time reserving in writing his right to appeal the trial court's ruling on his motion to suppress in compliance with Rule 24.3. A judgment and commitment order was filed of record on February 12, 1997, and a timely notice of appeal was filed on February 18, 1997.

For reversal, Appellant argues that the trial court erred in denying his motion to suppress the statements he gave to police. He contends that the statements should have been suppressed because he had been previously granted immunity in exchange for his agreement to assist police officers in making narcotics arrests. He contends further that because he was granted immunity from prosecution by the United States Attorney for the Western District of Oklahoma, he was entitled to equitable immunity in Arkansas. Correspondingly, he argues that the trial court erred in finding that he voluntarily gave the statements after having been advised of his Miranda rights.

We do not address the voluntariness argument as a separate point because Appellant failed to raise this issue below, either in his motion to suppress or at the suppression hearing. This court has repeatedly held that it will not address arguments, even constitutional arguments, raised for the first time on appeal. McGhee v. State, 330 Ark. 38, 954 S.W.2d 206 (1997); Travis v. State, 328 Ark. 442, 944 S.W.2d 96 (1997); Dulaney v. State, 327 Ark. 30, 937 S.W.2d 162 (1997). Thus, the sole issue before us is whether the trial court erred in finding that Appellant was not acting under a grant of immunity when he made the incriminating statements.

In reviewing a trial judge's ruling on a motion to suppress, we make an independent determination based upon the totality of the circumstances, viewing the evidence in a light most favorable to the State, and we reverse only if the ruling is clearly against the preponderance of the evidence. Norman v. State, 326 Ark. 210, 931 S.W.2d 96 (1996). The credibility of witnesses who testify at a suppression hearing about the circumstances surrounding the appellant's in-custody confession is for the trial judge to determine, and we defer to the superior position of the trial judge in matters of credibility. Davis v. State, 318 Ark. 212, 885 S.W.2d 292 (1994); Mitchell v. State, 306 Ark. 464, 816 S.W.2d 566 (1991). Conflicts in testimony are for the trial judge to resolve, and the judge is not required to believe the testimony of any witness, especially that of the accused since he or she is the person most interested in the outcome of the proceedings. Ross v. State, 300 Ark. 369, 779 S.W.2d 161 (1989).

The record reflects that Sergeant Sam Martin, of the Harrison Police Department, and Special Agent Lonnie Cox, of the Federal Bureau of Investigation, interviewed Appellant on three occasions, October 8, 1991, ¹ October 11, 1991, and November 8, 1991. Trooper David Lafferty, of the Arkansas State Police, and Chief Deputy Jim Carr, of the Marion County Sheriff's Office, subsequently interviewed Appellant on January 13, 1994. The record reflects further that prior to being questioned in three of the four interviews, on October 8, 1991, November 8, 1991, and January 13, 1994, Appellant was advised of his Miranda rights from a statement-of-rights form, which he signed, acknowledging that he understood his rights. The transcripts of those three taped interviews were admitted into evidence along with the rights forms. A fourth interview, which occurred on October 11, 1991, was not tape recorded and the record does not indicate whether Appellant waived his rights by signing a rights form on that occasion.

During the suppression hearing, the State did not dispute that Appellant had received a letter of immunity from the United States Attorney for the Western District of Oklahoma. The letter, dated April 1, 1991, reflects:

The United States Attorney's Office, Oklahoma City, Western District of Oklahoma, is investigating numerous federal violation[s], including narcotics activities of persons known to you and who are currently being investigated by the Federal Bureau of Investigation.

It is our understanding that you are knowledgeable regarding these activities, and are willing to cooperate fully with the federal government in this matter.

Accordingly, the agreement is that in return for your total cooperation, your truthful testimony, consensual monitoring, and your full help in developing evidence against these persons or their associates and others who are similarly involved in these activities, the United States Attorney's Office of the Western District of Oklahoma will not prosecute you for any federal offense related to the aforementioned illegal activities. Any violation of this agreement could result in the presentation of charges to the Grand Jury for your participation and involvement in these activities.

The letter further reflects that the offer of immunity in exchange for cooperation was accepted and agreed to on April 17, 1991, and was signed by Appellant.

It is Appellant's contention that the federal immunity agreement was arranged by Agent Cox and that, pursuant to that agreement, Cox required him to cooperate with Sergeant Martin. He argues that because of this connection between Agent Cox and Sergeant Martin, he was entitled to assume that the immunity from federal prosecution in Oklahoma also applied to the statements he made in Arkansas. He asserts that his reliance on the federal immunity agreement was justified by the warnings and admonitions given by the officers, urging him to "come clean" and tell them everything he knew about local drug deals. He asserts further that it is evident from the text of the interviews that he was being required to give his full cooperation to the local authorities. As such, he claims that he is entitled to immunity for equitable reasons.

The granting of immunity is not a constitutional right, but merely one authorized by statute. Williams v. State, 329 Ark. 8, 946 S.W.2d 678 (1997) (citing Fears v. State, 262 Ark. 355, 556 S.W.2d 659 (1977)). The reason to grant immunity is to aid in the prosecution of criminals by inducing witnesses to testify against them. Id. It is within the prosecutor's discretion to grant immunity when it is in the public's interest to do so. Id. In the absence of a statutory provision for the grant of immunity, it is within the exclusive discretion of the prosecuting attorney to determine whether a person will be granted immunity in exchange for his or her testimony. Hammers v. State, 261 Ark. 585, 550 S.W.2d 432 (1977). Where immunity is granted pursuant to statute, the claimant must show that his or her right to immunity falls within the parameters of the statute. Id. Despite the fact that a claimant may not...