Whitmore v. State

• Decision Date: 08 May 1978
• Docket Number: No. 2,No. CR77-126,CR77-126,2
• Citation: 263 Ark. 419,565 S.W.2d 133
• Parties: Jack WHITMORE, Appellant, v. STATE of Arkansas, Appellee
• Court: Arkansas Supreme Court

Page 133

565 S.W.2d 133

263 Ark. 419

Jack WHITMORE, Appellant, v. STATE of Arkansas, Appellee.

No. CR77-126.

Supreme Court of Arkansas, Division No. 2.

May 8, 1978.

John Barry Baker, Public Defender, Fayetteville, for appellant.

Bill Clinton, Atty. Gen., by Robert J. Govar, Asst. Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Justice.

Appellant, who was found guilty of the crimes of carnal abuse in the first degree and rape, challenges the judgment of conviction on two grounds. He contends that the trial court erred in overruling his motion to suppress an incriminating statement made by him and that the evidence was insufficient to support the verdict on the charge of rape. We find no error and affirm.

The basis for his argument relating to the motion to suppress is that the trial judge failed to adequately weigh the multitude of factors surrounding the giving of his statement. The factors, or facts, which appellant contends indicate improper conduct which served to exert undue influence on his free will and resulted in a coerced and involuntary statement, which he emphasized in his brief, may be summarized thus: fear of the police; his inexperience in contacts with and observation of police officers; methodical reading by police officers of "Miranda " warnings in an automaton fashion; failure of the police to ask if he wanted to see an attorney until he had been "booked in" after giving two statements; his anxiousness to complete the statements so he could return an automobile to his brother who had to go to work; intimidation by Officer Coffman of the Criminal Investigation Division of the Fayetteville Police Department; implied promises of leniency by Coffman; the absence of two police officers who had been present during the taking of appellant's first statement while Coffman was coercing appellant to give a second statement; failure of the police to use tape recording equipment; conflicts in the testimony relating to the police officers who were present when appellant's second statement was given; and his state of shock at having been placed in a jail cell when he inserted an additional sentence in his second statement.

It might well be that if the existence of all those factors was beyond dispute, and no others were involved, we should say that the statement was involuntary. But we must make an independent determination of the voluntariness of the statement based upon the totality of the circumstances, reversing the finding of the trial court only if it is clearly against the preponderance of the evidence. Degler v. State, 257 Ark. 388, 517 S.W.2d 515.

Appellant was a physical education instructor at Bates Elementary School in Fayetteville, where he was attending the University of Arkansas. He was 19 years of age. He was accosted at about 10:30 or 10:45 a. m. on August 25, 1976, at a sporting goods store by Sgt. Bill Brooks of the Fayetteville Police Department, Investigator Doug Fogley of the Arkansas State Police and Officer Coffman. They asked him to come with them to the police station. The officers testified that they told Whitmore that there had been allegations accusing him of indecent acts and related some of the conversations about these acts while on the way to the police station. Whitmore was taken to the criminal investigation office of the Fayetteville Police Department, where he was advised by the officers that he had been accused by the parents of two young males regarding his sexual involvement with these youths and that these officers were investigating these charges. There is little room for doubting that Whitmore was fully informed about the charges that were under investigation.

Whitmore admitted that one of the officers read "some rights" to him at an office at the police station, but said that he could not recall what they were, because he was in a hurry to return the automobile in which he had gone to the sporting goods store to his brother who was supposed to be at his place of employment at 11:00 a. m. He acknowledged that he had signed a waiver of rights. Officers Coffman and Fogley testified that this instrument contained a recitation of his rights and his recorded acknowledgment of his understanding of them made after Fogley had gone over each of them with him in detail. They said that this was done as soon as they all arrived at the police station and went into the criminal investigation division office. Brooks was not present at this time but was present when Whitmore's statements were made.

Whitmore testified that he signed two or three papers, but when the officers were reading, his mind was "off," thinking of the trouble he was in and of getting the car home. He couldn't say that he made the responses shown as recognition of his understanding of his rights and couldn't say that he didn't. He could not be sure whether the officers told him about his right to have a lawyer present, but was positive that none of the police officers asked him if he wanted to call a lawyer or if he wanted to call anyone. He denied knowing what "right to waive" meant, but said that he knew that waive meant to give up the right and that he thought it means "just that you give up the right if you start talking to them." He admitted that he understood two or three of the rights. He said that he had not read any of the two or three papers he signed and thought the officers told him to look them over and sign them, but couldn't remember them telling him to read any of the several "pieces of paper." In spite of his saying that he signed these papers readily because he was trying to get the car back to his brother, he later said that he thought that the officers were going to put him in jail when they first came up to him and said something about a delicate matter down at the school. When asked about specific items in the first statement, made in the presence of all three officers, he could remember having made practically all the non-incriminating statements attributed to him, saying that they were made in response to specific questions by the officers; however, he denied having made any statement that tended to be incriminating. He not only admitted that the signature and date at the end of the page were in his handwriting, but admitted having signed this statement; however, he denied having read it, saying that the officers had told him to look it over and sign it.

Whitmore thought he had signed a second, more incriminating statement. He said that this statement was made to Officer Coffman, after Brooks and Fogley had left the room to get some coffee. He said that after they left, Coffman shut the door, got up on the desk, pounded on it, demonstrated what he thought of the first statement by throwing it in the trash and said, "I want another story right now. You are not going to leave here until I get it. I want another, because everything you said in there wasn't any of it true." Whitmore said that Coffman had said that if he made the statement he could go home and Coffman would just put in in the file, and it never would get to court. Whitmore said that his main objective had been to get out of the office, because he was already late, and that he had understood Coffman to mean, although Coffman had not said so, that if he explained exactly what happened to those kids at what times, he could leave. Again Whitmore could recall the less incriminating portions of this statement, which was typed by Coffman, who was asking Whitmore questions as he went along. Whitmore either denied or could not remember making the incriminating ones. He admitted that the typed statement bore his signature, but said that he could not remember placing it there, that he had never seen the statement until shown it by his attorney in the attorney's office and that when Coffman had quit typing, the other officers had come in and Coffman had said, "Well, I finally got a statement out of him." Whitmore said that the officers then placed him in a jail cell and he went into shock. Because of this he said that he could not remember writing a sentence interlined in the second statement and did not remember seeing it until he saw it in his lawyer's office, although he admitted that it appeared to be in his handwriting.

Whitmore testified that he had been so frightened when the officers came up and starting talking to him that he was shaking all over and "almost passed out." On the other hand, Officers Coffman and Brooks, when called as witnesses for appellant, testified that Whitmore seemed about as nervous or apprehensive as any person would be when confronted with being taken to the police station or informed of accusations of this nature.

The evidence on behalf of the state was quite different from that of Whitmore in many respects. Even Whitmore admitted that the Officers Brooks and Fogley were courteous to him, except for using profanity and that Coffman was the only one...