Vault v. State

• Decision Date: 01 April 1974
• Docket Number: No. CR,CR
• Citation: 256 Ark. 343,507 S.W.2d 111
• Parties: Robert VAULT, Appellant, v. STATE of Arkansas, Appellee. 73--168.
• Court: Arkansas Supreme Court

Page 111

507 S.W.2d 111

256 Ark. 343

Robert VAULT, Appellant, v. STATE of Arkansas, Appellee.

No. CR 73--168.

Supreme Court of Arkansas.

April 1, 1974.

James R. Howard, Little Rock, for appellant.

Jim Guy Tucker, Atty. Gen. by Alston Jennings, Jr., Asst. Atty. Gen., Little Rock, for appellee.

BYRD, Justice.

For reversal of his second degree murder conviction, appellant Robert Vault contends among other things that the trial court erred in failing to suppress a statement allegedly made by him.

The record shows that appellant was 16 years of age at the time of his arrest. His mother employed appellant's present lawyer to represent him. The lawyer went to the jailhouse shortly after appellant's arrest--some time around 6:00 p.m. The lawyer waited around the jail and was present through two lineups in which no witness identified appellant. Counsel asked the police to either charge or release appellant, but they refused. After the last lineup and after appellant had apparently been bedded down for the night, the lawyer left with the understanding with the police that he would be back at opening hours the next morning to secure appellant's release. When the lawyer arrived at the jail early the next morning he found that the officers had obtained a signed confession from appellant the night before within 15 to 20 minutes after counsel left the jailhouse. The officers testified that appellant on his own initiative volunteered to talk to the officers and stated that he did not want a lawyer. The officers did not attempt to contact the lawyer before taking the statement.

Appellant at the trial took the witness stand and denied that he made the statement written for him by the officers. When asked why he signed the statement he said:

'Yeah, I signed it or, you know, get hit, you know. I didn't feel like getting hit, you know, that time of day, so I signed it.'

Other evidence shows that appellant had never been in jail before.

The officers first stated that the only evidence they had connecting appellant with the homicide was the confession of an accomplice. When it was pointed out that the written confession of the accomplice did not mention the appellant, the officers then suggested that the accomplice orally told the officers that appellant was at the scene of the crime.

The only evidence presented at the trial other than that of the accomplice which connected appellant with the crime was the alleged written confession.

The decisions of other courts generally disapprove of the police practice of interviewing prisoners in the absence of their counsel. See Mathies v. United States, 126 U.S.App.D.C. 98, 374 F.2d 312, 316 [256 Ark. 345] n. 3 (1967), where, in an opinion by (then) Circuit Judge Burger, it was pointed out that 'The prospective application of Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), plainly will require that such interviews can be conducted only after counsel has been given an opportunity to be present.' In upholding a confession in Reinke v. United States, 405 F.2d 228 (9th Cir. 1968), the court laid much stress upon the fact that Reinke admitted that he initiated the interview. In so doing the court in Reinke indicated its disapproval of the practice. See also Coughlan v. United States, 391 F.2d 371 (9th Cir. 1968), cert. den. 393 U.S. 870, 89 S.Ct. 159, 21 L.Ed.2d 139 (1968).

We need not go so far as to hold that a confession by a prisoner in jail can never be found to be voluntary and admissible. However, under the record here involving a 16 year old on his first arrest, we find from a totality of the evidence that the alleged confession should have been suppressed.

Appellant raises a number of other issues which we do not reach since they will not necessarily arise in a new trial nor on the same evidence.

Reversed and remanded.

FOGLEMAN and JONES, JJ., concur.

FOGLEMAN, Justice (concurring).

I could not agree to the reversal of this case if it were not for the fact that we abandoned the traditional 'substantial evidence' test for review of questions of voluntariness of confessions in Harris v. State, 244 Ark. 314, 425 S.W.2d 293, and committed ourselves to an independent determination of voluntariness, saying that we would still give considerable weight to the findings of the trial judge and respectful consideration of them on the crucial issue, so long as the independent responsibility of the appellate court to determine the question of voluntariness is not frustrated. I now confess that I do not know what this means.

In retrospect, I have serious doubts about the correctness of our decision in Harris, because I doubt that the authorities there cited have any bearing whatever on the extent of appellate review by state courts. In Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513, (1963), the United States Supreme Court simply refused to be bound by state court determination of the issues. Again, in Davis v. North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966), that court, in reviewing a federal habeas corpus proceeding, merely reiterated the position previously taken by it, i.e., that it had the duty to examine the entire record and make its independent determination of the ultimate issue of voluntariness. I am not aware of any suggestion by that court that a state appellate court has or should have the same duty.

Be that as it may, we did not reverse the finding of voluntariness in Harris, and we have seldom done so thereafter. See Mosley v. State, 246 Ark. 358, 438 S.W.2d 311; Nash v. State, 248 Ark. 323, 451 S.W.2d 869; Mitchell v. Bishop, 248 Ark. 427, 452 S.W.2d 340; Johnson v. State, 249 Ark. 268, 459 S.W.2d 56. But see, Petree v. State, 248 Ark. 359, 451 S.W.2d 461, and Watson v. State, 255 Ark. ---, 501 S.W.2d 609 (1973). We have actually remanded cases for supplemental hearings, re-examination and re-evaluation of the evidence and more specific and definitive findings on the question by the trial judge. Mitchell v. Bishop, 245 Ark. 899, 435 S.W.2d 91; Johnson v. State, 248 Ark. 184, 450 S.W.2d 564. In each case, we ultimately sustained the finding of the trial court that the statements there involved were voluntary. See Mitchell v. Bishop, 248 Ark. 427, 452 S.W.2d 340; Johnson v. State, 249 Ark. 268, 459 S.W.2d 56.

In spite of our frequent references to the findings of the trial judge in these cases, we have carefully and sometimes deliberately avoided stating any standard for determining the appropriate weight and respect to be accorded the findings of the trial judge, who had all the witnesses before him. See Johnson v. State, 249 Ark. 268, 459 S.W.2d 56. In one case, Nash v. State, supra (per Fogleman, J.), we acknowledged that we had given 'appropriate, but not controlling, weight to the findings of the trial judge,' whatever that means. In Watson v. State, supra (also per Fogleman, J.), we reversed the trial judge's holding but said that we accorded respectful consideration to his holding and resolved any conflicts in the evidence in favor of that holding.

The present case clearly illustrates the necessity for our adoption of some standard of review. Surely, the resolution of conflicts in the evidence in favor of the trial judge's holding is not the full weight to be given them. But what standard are we applying in this case? What standard have we applied in other cases? What guidelines do appellate advocates have? Is each case to be decided on an ad hoc basis? I humbly submit that the last question would have to be answered in the affirmative on the basis of cases decided after Harris.

We long held that the findings of fact by a circuit judge on any question properly submitted to him would not be set aside on appeal if supported by substantial evidence Bank of Atkins v. Wirth, 209 Ark. 360, 190 S.W.2d 445; Ward v. Nu-Wa Laundry Cleaners, 205 Ark. 713, 170 S.W.2d 381; Matthews v. Clay County, 125 Ark. 136, 188 S.W. 564; Cady v. Pack, 135 Ark. 445, 205 S.W. 819; French v. State, 187 Ark. 782, 62 S.W.2d 976; Beason v. State, 166 Ark. 142, 265 S.W. 956; Decker v. State, 85 Ark. 64, 107 S.W. 182. We once said that when circuit courts are required by law to pass upon questions of fact, the findings are as conclusive on appeal as the verdicts of juries. Cady v. Pack, supra; French v. State, supra. The substantial evidence rule has been applied in other cases in which deciding a factual question has been essential to a determination whether the proper foundation has been laid for admitting evidence. See Ruloff v. State, 142 Ark. 477, 219 S.W. 781. As recently as 1966, in Mullins v. State, 240 Ark. 608, 401 S.W.2d 9, we applied the substantial evidence test in reviewing the determination of admissibility of a confession in a Denno hearing under Act 489 of 1965 (Ark.Stat.Ann. § 43--2105 (Supp.1973)). This decision was made subsequent to that in Haynes and prior to that in Davis by approximately two months. We have never really explained our departure from Mullins. I am today unaware of any real reason for not having followed Mullins.

Although I believe that consistency requires that we re-establish the substantial evidence rule, I insist that we should arrive at some standard other than the particular sense of justice of a minimum of four judges in a particular case. Other rules that are applied by state courts are the 'clearly erroneous' rule (People v. Castelli, 7 Mich.App. 1, 151 N.W.2d 203 (1967)); 'clearly against the preponderance of the evidence' rule (People v. Carter, 38 Ill.2d 496, 232 N.E.2d 692 (1967)); the 'clear abuse of discretion' rule (People v. Abbott, 156 Cal.App.2d 601, 319 P.2d 664 (1958)); and the 'competent evidence' rule (State v. Bentley, 1 N.C.App. 365, 161 S.E.2d 650 (1968)).

If it is too late to return to the substantial evidence rule, then I advocate establishment of the 'clearly erroneous' rule. This basis for review of a trial judge's findings of fact is specified...