noting error of not instructing jury on first degree felony murder where jury convicted defendant of capital felony murder, but recommended a sentence of life in prison, not the death penalty
How later courts described this case
- noting error of not instructing jury on first degree felony murder where jury convicted defendant of capital felony murder, but recommended a sentence of life in prison, not the death penalty
- "[W]e have held in cases where the statutes overlap and both instructions are required, the jury may refuse consideration of both the death penalty and life without parole by returning a guilty verdict as to the charge of murder in the first degree."
Written by the judges who cited it.
The opinion
Steele Hays, Justice, concurring in part, dissenting in part. I agree with the majority with respect to the first degree murder instruction but I do not agree that appellant’s statements should have been suppressed. In determining whether an in-custodial confession has been induced by a promise of reward, we look to the totality of the circumstances. Davis v. State, 275 Ark. 264 , 630 S.W.2d 21 (1982). Furthermore, it is necessary that the accused rely on such promise, State v. Hall, 586 P.2d 1266 (1978); State v. Morris, 574 P.2d 350 (Ore. App. 1978), and it must be the police, rather than the accused, that propose the reward. State v. Harwick, 552 P.2d 987 (Kan. 1976).
Applying those tenets, the proof in my estimation fails to warrant the suppression of appellant’s statement. First, it was appellant who instigated the interview with the officers; second, he indicated at the outset that he wanted to give the officers some “heavy” information about the murder; third, his statement came, not at the end of a lengthy interrogation [see, e.g., Brown v. State, 198 Ark. 920 , 132 S.W.2d 15 (1939)], but after some ninety minutes; fourth, there is no proof of an express or implied promise that a furlough would be given if he made a statement, his motion to suppress contains no such allegation nor did he himself make that contention to the trial court. Only two witnesses, Officer Henry Efird and Sheriff Doyle Cook, testified at the suppression hearing and both categorically denied that any promise was made to the appellant:
(Officer Efird):
Q. Now, Raymond was expecting that if he talked to you, you were going to work some kind of deal where he could get out of jail for New Years, wasn’t he?
A. No, sir. I never did lead Mr. Sanders to believe that. [My emphasis.]
(Sheriff Cook):
Q. Do you remember whether you made any promises to the defendant that in exchange for information, you would do something for him or give him something?
A. No, sir, I didn’t make no promises.
Q. Was he led to believe by you that if he were to give you information or a statement or anything of that effect, you would do something for him. For example, let him have New Year’s Day off?
A. No, sir. I wasn’t in no position to make any promises.
Q. Did you make a promise of any kind, Sheriff?
A. No, sir. [My emphasis.]
Since appellant did not testify at the suppression hearing, that testimony stands unrefuted and thus the requirement that the accused establish that he relied on an express or implied promise of reward is wholly lacking; fifth, it was the appellant who solicited the furlough, rather than the officers proposing it as an inducement; sixth, the appellant gave the statement after having had his Miranda rights fully explained, which he acknowledged verbally and in writing; seventh, appellant was no stranger to police procedures, having had considerable experience with law enforcement. Wright v. State, 267 Ark. 264 , 590 S.W.2d 15 (1979).
The trial court heard the evidence as to the voluntariness of the appellant’s in-custodial statement and observed the demeanor of the only witnesses who testified. I suggest his finding was not clearly erroneous and should not be disturbed. Davis v. State, supra and Harvey v. State, 272 Ark. 19 , 611 S.W.2d 762 (1981).
Glaze and Brown, JJ. join.