Tanner v. State, CR75--107

• Citation: 259 Ark. 243,532 S.W.2d 168
• Decision Date: 09 February 1976
• Docket Number: No. CR75--107,CR75--107
• Parties: Billy Don TANNER, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 168

532 S.W.2d 168

259 Ark. 243

Billy Don TANNER, Appellant, v. STATE of Arkansas, Appellee.

No. CR75--107.

Supreme Court of Arkansas.

Feb. 9, 1976.

Kenneth C. Coffelt, Little Rock, for appellant.

Jim Guy Tucker, Atty. Gen. by Gary Isbell, Asst. Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Justice.

Billy Don Tanner was charged with the capital felony murder of his sister-in-law, Sue Keith and her two children Carolyn Sue, aged three, and James Randall, aged six, by beating them 'and cutting their throats with a knife'. He was found guilty by a jury and sentenced to life imprisonment without parole. He contends on appeal that the statute providing for imprisonment without parole is unconstitutional and that the trial court erred in admitting into evidence a confession and certain photographs.

Appellant argues that the statute (Ark.Stat.Ann. § 41--4707 (Supp.1973)) is unconstitutional because life imprisonment without parole is in violation of Art. 6 § 18 of the Constitution of Arkansas, which vests the power to grant pardons, reprieves and commutations of sentences in the Governor. This power is specifically recognized in the questioned statute, which specifically provides that one sentenced to life imprisonment without parole may not be released except pursuant to a commutation, pardon or reprieve by the Governor under procedures provided in Ark.Stat.Ann. § 41--4714 (Supp.1973). Appellant does not question the section relating to the procedures required for the grant of clemency, but says only that the statute is invalid because of the inclusion of the words 'without parole'.

Although parole may have some characteristics similar to a pardon or reprieve, we do not take it to be a matter of gubernatorial clemency under our constitution, as distinguished from administrative conditional release from imprisonment which may be controlled or prohibited by legislation that is not discriminatory. Parole has been defined as a supervised release from incarceration prior to the termination of a sentence. Roach v. Board of Pardons & Paroles, 503 F.2d 1367 (8th Cir., 1974). We have, at least tacitly, accepted this definition by saying that one who is released on parole is subject to control and supervision by state authorities and may be returned to prison for violation of rules or conditions under which his parole is granted. Gulley v. Apple, 213 Ark. 350, 210 S.W.2d 514. In our view, this definition of parole more closely parallels the judicial suspension of a sentence that has been pronounced than the exclusive subjects of gubernatorial clemency--pardon, reprieve and commutation. We have specifically held that the statute allowing postponement or suspension of sentence did not violate Art. 6 § 18. Emerson v. Boyles, 170 Ark. 621, 280 S.W. 1005; Murphy v. State, 171 Ark. 620, 286 S.W. 871, 48 A.L.R. 1189. By like reasoning, Ark.Stat.Ann. § 41--4707 does not either.

Appellant next contends that his confession was involuntary as a matter of law and fact under the undisputed evidence and, therefore, inadmissible. We do not agree. In order for us to reverse the holding of the circuit judge that the state had met its burden of proving that the in-custody confession was voluntary, we must find from an independent determination, based upon the totality of the circumstances, that it was clearly against the preponderance of the evidence. Degler v. State, 257 Ark. 388, 517 S.W.2d 515.

In support of his contention, Tanner asserts that his confession was obtained by trickery, that he did not have the assistance of counsel, and that he had been deprived of food and sleep for a long period of time. Tanner did not testify at the Denno hearing and did not produce any witnesses there. The testimony of the officers is, as Tanner concedes, undisputed. We find that it was clearly sufficient to overcome the presumption against voluntariness, if accorded full weight, as it was.

Sheriff Marlin Hawkins was informed of the murders about 1:00 a.m. on August 16. He caused an investigation to be commenced. He went to Tanner's residence, along with Lt. Howard Chandler, an Arkansas State Police criminal investigator, Dr. Rodney Carlton, the State Medical Examiner, and Deputy Sheriff Earl Smith at 5:00 to 5:30 p.m. and found Tanner out in his yard. Tanner came to the automobile and sat in it beside Hawkins. Hawkins testified that Lt. Chandler advised Tanner of his constitutional rights and that Tanner said he didn't want an attorney because he hadn't done anything. Hawkins told Tanner that they were investigating the murder of Mrs. Keith and her two children and told Tanner that there was a rumor that there had been blood on his clothes. The sheriff then asked Tanner where he got the blood. Tanner explained that, while driving his truck hauling logs from Dover to Menifee about 2:00 p.m. on August 15, he had rendered assistance to two boys who had an accident in a vehicle bearing a Kentucky license. According to Tanner, the boys had blood in their hair and this was the source of the blood on his clothes. Tanner told Hawkins that his bloody clothes were in a tub on the back porch of the Tanner house. When Hawkins asked Tanner when he quit work, Tanner replied that it was about 7:30 p.m. and that he had bought a 6-pack of beer and had gone to Little Rock, but he did not know where he went and what he did there. Hawkins then asked Tanner when he had learned there had been a murder and Tanner said that when he returned to his home about 11:00 p.m., his wife told him of it. Hawkins remarked that this was strange because no one knew there had been a murder until Mr. Keith arrived at his home about 12:45 a.m. on August 16. Hawkins then went to check on Tanner's story, and left further interrogation to Chandler.

Lt. Chandler corroborated Hawkins' testimony about his advice to Tanner of Miranda rights. He said that Tanner said that he would tell the officers what they wanted to know. According to Chandler, after Hawkins and Smith left, Tanner told Chandler of his activities on the day in question. This narration was virtually identical to that related to Hawkins, except that Tanner told Chandler he was notified of the death about 1:30 a.m., and said that he quit work at 5:30 or 6:00 p.m.

Tanner was taken into custody as a prime suspect and Deputy Sheriff Farrell Bradshaw brought him to the courthouse in Morrilton at approximately 7:30 p.m. Robert Jackson, a deputy sheriff, talked to Tanner there about 7:40 p.m. He said that he then advised Tanner of his constitutional rights and that Tanner signed a waiver of Miranda rights at 7:48 p.m. Jackson advised Tanner of the nature of the investigation and told Tanner that he was the subject of that investigation. Tanner again made his statement about the accident, but Jackson told him that, although there had been such an accident, there had been no injuries. ¹ According to Jackson, Tanner then said that he was not responsible for the murders and would take a 'lie detector test' to prove his innocence. Jackson said that when Tanner insisted upon such a test, he contacted Sgt. Don Walls, polygraph examiner for the Arkansas State Police, and arranged for one. Jackson, Tanner, and Deputy Sheriff John Hawkins, who had also participated in the questioning of Tanner at the courthouse, arrived at State Police Headquarters about 9:15 p.m. Capt. McDonald of the Arkansas State Police was called and trace metal tests were conducted by him when he arrived at headquarters 30 minutes later. This test to determine whether Tanner had handled a weapon such as a kinfe found at the murder scene was inconclusive. Capt. McDonald, during this time, advised Tanner of his rights, but Jackson could not recall specifically what McDonald had said. At some time after arrival at State Police Headquarters, Tanner reiterated his account of the source of the blood on his clothing. The Conway County officers and Tanner remained with Capt. McDonald until 11:30 p.m. Sgt. Walls then took charge of Tanner and went into Walls' office in an adjoining room to prepare Tanner for the polygraph examination. Sgt. Walls emerged about 12:35 a.m. and advised Jackson and Hawkins that Tanner wanted to make a statement.

Walls testified that he prepared Tanner for the examination by interviewing him for approximately one hour to get acquainted with him, obtain background information and advise him of the type of questions that would be asked. According to Walls, full development of the subject's background is time consuming, but essential to proper framing of questions in conducting a polygraph examination. He said that no one else was in the room while this was being done. Walls stated that the examination was never conducted, because Tanner said that he had a statement he wanted to make. Walls then called Hawkins and Jackson and in their presence advised Tanner of his rights. Jackson testified that Tanner then said he had something he wanted to get off his chest.

Tanner then made an oral statement of which handwritten notes were made by Walls and signed by Tanner. The notes were commenced at approximately 12:45 a.m. and completed in approximately one hour. Tanner then wrote out his statement in his own handwriting. He stated at...