Trollinger v. State, CA

• Decision Date: 27 March 1985
• Docket Number: No. CA,CA
• Citation: 14 Ark.App. 184,686 S.W.2d 796
• Parties: John Franklin TROLLINGER, Appellant, v. STATE of Arkansas, Appellee. CR 84-158.
• Court: Arkansas Court of Appeals

Page 796

686 S.W.2d 796

14 Ark.App. 184

John Franklin TROLLINGER, Appellant, v. STATE of Arkansas, Appellee.

No. CA CR 84-158.

Court of Appeals of Arkansas,

Division II.

March 27, 1985.

Darrell E. Baker, Jr., Fayetteville, for appellant.

Steve Clark, Atty. Gen. by Velda P. West, Asst. Atty. Gen., Little Rock, for appellee.

CRACRAFT, Judge.

John Franklin Trollinger appeals from his conviction of the crimes of burglary and theft of property contending that the trial court erred in admitting evidence obtained in violation of his Fifth and Fourteenth Amendment rights. We find no merit to these contentions.

At a pretrial hearing on a motion to suppress the police officers testified that on November 28, 1983 they obtained information that the appellant had participated in a series of burglaries then under investigation. The appellant was voluntarily brought to the police station and after being fully advised of his Miranda rights he stated that he wished to have an attorney present during any further questioning. According to the police officer he ceased questioning the appellant but did tell him what he was being charged with and what he believed could be proved against him. The police officer testified that he was interrupted by the appellant who stated that he was drunk when he did it. The officer said that he told appellant that he could not talk to him and did not want to talk about the details of the charge. After completing this statement, the officer testified:

John asked for help. He wanted to know what to do. I couldn't promise him anything or make any deals with him. He wanted to know who could. I told him that the only man that could make any kind of deal was the prosecuting attorney, Kim Smith. John asked me to call Mr. Smith and I did.

Appellant admitted his involvement in the crime to the prosecutor and was told that he could give a written statement to the officers if he wished but due to his past criminal record it would be recommended that he be sent to the Department of Correction for seven years and not placed on probation.

The police officer then readvised appellant of all of his Miranda rights, including the right to have an attorney present, and the appellant executed a written acknowledgment stating that he did not wish to have an attorney present. Appellant then fully admitted his participation in the crime, named his accomplices and assisted the officers in recovering the stolen articles. The appellant gave no testimony at the suppression hearing. The trial court found that although the appellant had initially asserted his constitutional right to having an attorney present during questioning, he had subsequently waived that right intelligently and knowingly.

As a general proposition once a suspect in custody requests counsel the questioning must cease and cannot be reinitiated by the officers. However, if the accused initiates contact with the authorities and knowingly and intelligently repudiates his previous request for counsel, a voluntary statement may be made. Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981); Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983); Dillard v. State, 275 Ark. 320, 629 S.W.2d 291 (1982).

The appellant argues that the trial court's finding that the questioning ceased when request for counsel was made was clearly erroneous. He contends that the statements of the police officer concerning what he believed he could prove amounted to interrogation. He further argues that as the police had only an anonymous tip prior to interviewing appellant, his waiver of right to counsel in the face of evidence so slight could not be said to have been either intelligent or knowledgeable.

On appeal we review these matters independently, considering the totality of the circumstances and do not reverse the trial court unless its ruling is clearly erroneous. Harris v. State, 278 Ark. 612, 648 S.W.2d 47 (1983); Coble v. State, 274 Ark. 134, 624 S.W.2d 421 (1981). The police officer stated that at the time the request was made he ceased questioning the accused and cautioned him about spontaneous statements. He further stated that all he did was make a statement to the appellant of what information the police then had connecting him to the crime. He stated it was at the appellant's request that he was taken to the prosecuting attorney's office and after appellant initiated that further contact he was again advised of his right to counsel which he specifically waived in writing.

The facts of this case are peculiarly similar to those in Oregon v. Bradshaw, supra. There the suspect, after being advised of his Miranda rights, made known his desire to assert his right to counsel. All questioning stopped immediately. While being transported to jail the accused asked the officer, "What is going to happen next?" He was reminded that questioning had ceased and said he understood. A discussion about where he was being taken and the offense with which he was to be charged followed. The officer suggested and the accused agreed that he might help himself by taking a polygraph examination. The accused took the polygraph after again being read his rights and after signing a written waiver of rights. When the unfavorable result of that test was made known to the accused he recanted his earlier denials and confessed to every element of the crime with which he was charged. There the court ruled that the accused's question as to what was going to happen to him evidenced a "willingness and desire for a generalized discussion" about the case. In Bradshaw the court made it clear that the holding in Edwards was that after a right to counsel has been...