Workman v. State, CR
| Decision Date | 13 November 1979 |
| Docket Number | No. CR,CR |
| Citation | 589 S.W.2d 20,267 Ark. 103 |
| Parties | Kathy WORKMAN, Appellant, v. STATE of Arkansas, Appellee. 79-153. |
| Court | Arkansas Supreme Court |
Marcia L. McIvor, Fayetteville, for appellant.
Steve Clark, Atty. Gen., by Nelwyn Leone Davis, Asst. Atty. Gen., Little Rock, for appellee.
Appellant was charged and convicted of hindering the apprehension or prosecution of James Pace for aggravated robbery. Ark.Stat.Ann. § 41-2805 (Repl.1977). She was sentenced to three years' imprisonment under the Youthful First Time Offender Act.
Appellant first contends, through appointed counsel, that the lower court erred in allowing the state to amend the information during the course of the trial. The amendment changed the notation on the information from a Class D felony to a Class B felony. Appellant argues that this is prohibited by Ark.Stat.Ann. § 43-1024 (Repl.1977), which provides in pertinent part:
The prosecuting attorney or other attorney representing the State, with leave of the court, may amend an indictment, as to matters of form, or may file a bill of particulars. But no indictment shall be amended, nor bill of particulars filed, so as to change the nature of the crime charged or the degree of the crime charged.
The appellant asserts that the permitted amendment increased the degree of the crime charged in that a more severe sentence could be imposed for a Class B felony. The appellee, however, correctly responds that the statute under which the appellant was charged specifically provides that when the crime from which the hindering charge arose is a Class A felony, as here, the offense is a Class B felony. Ark.Stat.Ann. § 41-2805(2) (Repl.1977).
It is well settled that the information may be amended during the trial as long as the nature or degree of the crime charged is not changed. Owen v. State, 263 Ark. 493, 565 S.W.2d 607 (1978). Here in the language of the statute, the appellant was charged before and after the amendment with hindering the apprehension or prosecution of James Pace for aggravated robbery. Clearly, she was sufficiently apprised of the specific crime with which she was charged to the extent necessary to enable her to prepare her defense, that being all that is required. Lee v. State, 229 Ark. 354, 315 S.W.2d 916 (1958); and Underdown v. State, 220 Ark. 834, 250 S.W.2d 131 (1952). The statutes here do not require that the penalty of the alleged offense be included in the information. Ark.Stat.Ann. §§ 43-1006, 43-1007, and 43-1008 (Repl.1977). See also Estes v. State, 246 Ark. 1145, 442 S.W.2d 221 (1969). We hold that the degree of the alleged crime was not changed by the amendment. Further, the appellant's attorney candidly admitted that there were negotiations with the state's attorney, and at the time of the amendment he was not surprised that the crime charged in the information was in fact a Class B felony.
Appellant's second ground for reversal is that the court erred in admitting into evidence certain of her statements. She contends that the statements were confessions and that she was entitled to a Denno hearing for a determination of their voluntariness pursuant to Ark.Stat.Ann. § 43-2105 (Repl.1977). The statements in question were made at the sheriff's office at 12:45 a. m. several hours following the robbery. When she and the accused were initially questioned at their apartment concerning the incident, she was not placed under arrest nor taken into police custody. She voluntarily drove her car to the sheriff's office where the accused had been transported by the police. At this point, she was not suspected of any criminal offense. She was questioned only as a witness to "back up" some of the accused's statements concerning his activities during the past several hours. Appellant was not in police custody nor was the investigation focused upon her.
The statements did not constitute a confession. A confession is an admission of guilt as to the commission of a criminal act. State v. Jones, 14 N.C.App. 558, 188 S.E.2d 676 (1972); O'Neal v. State, 468 P.2d 59 (Okl.Cr.1970); Gladden v. Unsworth, 396 F.2d 373 (9th Cir. 1968); Norrell v. State, 116 Ga.App. 479, 157 S.E.2d 784 (1967); and 29 Am.Jur.2d Evidence, § 523; 23 C.J.S. Criminal Law § 826. Here appellant's statements to the police were, in the words of our statute, a mere continuation of her effort to "conceal(s), alter(s), destroy(s), or otherwise suppress(es) the discovery . . . . of any fact, information or other thing related to the crime which might aid in the discovery, apprehension or identification of the person;" and to "volunteer(s) false information to a law enforcement officer." § 41-2805(d) (f). The deliberate act of making false statements to the police concerning Pace's activities the night of the robbery is the essence of the alleged criminal offense and not a confession. An in camera hearing to determine the voluntariness of the statements was therefore not required.
Appellant's last ground for reversal is that there was insufficient evidence to sustain her conviction. She first argues that the state failed to establish that she was aware that Pace had committed aggravated robbery. The thrust of her argument is that the statute requires that her conscious purpose must have been to "hinder the apprehension or prosecution of one whose conduct constituted" aggravated robbery. § 41-2805 provides in pertinent part:
(1) (a) person commits an offense under this section if, with purpose to hinder the apprehension, prosecution, conviction or punishment of another for an offense . . . .
Although former law (Ark.Stat.Ann. § 41-120 (Repl.1963)) required that the hinderer have "full knowledge" of the crime committed, the new Code "speaks in terms of the actor's Purpose rather than the certainty of his knowledge respecting the consummated crime." (Italics supplied.) Commentary, Ark.Stat.Ann. § 41-2805 (Repl.1977). The statute requires only that the hinderer purposely aid one sought for "an offense."
At trial, Pace, who had been convicted of aggravated robbery, testified that prior to his departure from their apartment, he and the appellant "had a conversation concerning my intent to rob the Pizza Hut." The appellant warned him to "be careful", watched him cut eye holes in a ski mask, and was aware of his earlier intent to borrow a gun. Moreover, upon his return to the apartment after the robbery at gun point, he told the appellant that he had robbed the Pizza Hut and threw $400 on the bed. There is certainly substantial evidence that appellant had reason to...
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