ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

DIVISION I  

RODNEY BUNCH

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 00-1035

MAY 16, 2001

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CR 99-276]

HONORABLE DAVID BOGARD,

CIRCUIT JUDGE

AFFIRMED

A jury sitting in the Pulaski County Circuit Court convicted the appellant, Rodney Bunch, of two counts of aggravated robbery and one count of theft of property. On appeal, appellant maintains that the lower court erred by denying his motion to suppress the statement he gave to Little Rock Police Department detectives. He argues that he did not knowingly or intelligently waive his right to counsel or his right to remain silent under Miranda v. Arizona, 384 U.S. 436 (1966), and that he did not make the statement voluntarily. We affirm.

During a pretrial hearing on the motion to suppress and at the jury trial, the evidence established that appellant was interviewed by Little Rock Police Department Detective Armstrong, Sergeant Paxton, and Detective Keel concerning appellant's involvement in the robbery of Head Waves Hair Salon in Little Rock. Detective Armstrong met with appellant first and read him his Miranda rights. Detective Armstrong then advised appellant of eachright by beginning with the date and time, appellant's name, date of birth, address, what crime appellant was suspected of committing, and then read the Miranda rights to appellant. Appellant responded that he understood his rights, signed the form acknowledging his understanding, and Detective Armstrong signed the form as a witness to appellant understanding his rights. Detective Armstrong then read the waiver of rights to appellant from a separate part of the form. Appellant waived his rights and signed the form again in a separate place to acknowledge his waiver. Detective Armstrong also signed the form as a witness to appellant's waiver.

During his interview with Detective Armstrong, appellant confessed to robbing Head Waves Hair Salon. An hour later, Detective Keel and Sergeant Paxton interviewed appellant. At that time, appellant acknowledged that Detective Armstrong had already read him his rights. During the second interview, appellant again admitted to robbing the hair salon.

On appeal, appellant contends that he did not knowingly and intelligently waive his Miranda rights. In reviewing a trial judge's ruling on a motion to suppress, we make an independent determination based upon the totality of the circumstances, and we reverse only if the ruling is clearly against the preponderance of the evidence. Wright v. State, 335 Ark. 395, 983 S.W.2d 397 (1998). A knowing and intelligent waiver of Miranda rights must be made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. State v. Bell, 329 Ark. 422, 948 S.W.2d 557

(1997). In order to make this determination we must review the totality of the circumstances surrounding the waiver which include the age, experience, education, background, and intelligence of the defendant. Sanford v. State, 331 Ark. 334, 962 S.W.2d 335 (1998).

Here, appellant, a nineteen-year-old man, acknowledged that he understood his rights prior to waiving them. Appellant had an eleventh-grade education and had obtained his GED. Appellant also advised Detective Armstrong that he could read and write. Detective Armstrong testified that appellant responded to the reading of his statement of rights coherently and was not under the influence of drugs at the time of the interview. Appellant acknowledged his experience with criminal prosecution as he had been charged with aggravated robbery in a different case prior to this one. Based upon this evidence, we believe that appellant made a knowing and intelligent waiver of his Miranda rights.

Next, appellant maintains that his statement should have been suppressed because it was not made voluntarily. Appellant claims that during his interview on August 6, 1998, with Sergeant Paxton and Detective Keel, that they threatened him and promised that the State would prosecute him for more cases, which induced him to provide his statement. On review, we must determine whether Sergeant Paxton and Detective Keel made false promises which misled appellant to confess. See Pyles v. State, 329 Ark. 73, 947 S.W.2d 754 (1997). If the officers did, then the confession was not voluntary. In order to decide whether the officers made a misleading promise, we look at the totality of the circumstances. Id. The totality of the circumstances includes two factors, statements made by the officers and the vulnerability of appellant. Davis v. State, 275 Ark. 264, 630 S.W.2d 1 (1982).

Sergeant Paxton and Detective Keel both testified that they did not use any coercive tactics or make promises to appellant during the interview. In response to appellant's inquiry if he would be prosecuted for other crimes discussed during his interview about Head Waves Salon, Detective Keel responded, "[N]o, we'll see, what you're charged with. Okay." The detective's response sounds similar, although not identical, to that which was prohibited by the Arkansas Supreme Court in Tatum v. State, 266 Ark. 506, 585 S.W.2d 957 (1979). In Tatum, an officer made a false promise to a defendant when the officer stated, "I'll help you any way that I can." Notably, Detective Keel offered his response to appellant only after appellant had made his admissions. Therefore, it is impossible that the detective's response induced appellant to make his statement.

Next, we must consider appellant's vulnerability. This second factor is especially important in cases where it is difficult to ascertain the meaning of an officer's statement to a defendant. Pyles, supra. Unlike Tatum, the record does not reflect that appellant became emotional during the interview by the officers. However, appellant testified that he was physically and psychologically abused and that he gave his confessions because he was in fear for his life. A trier of fact is entitled to disregard a defendant's story because the defendant is the person most interested in the outcome of the trial. Springston v. State, 61 Ark. App. 36, 962 S.W.2d 836 (1998). Apparently, the circuit judge did not find appellant's testimony credible. We believe that the second factor, vulnerability of appellant, weighs in favor of the State. Therefore, we cannot agree with appellant that his custodial statement was made involuntarily. Accordingly, we find that the circuit court did not err in denyingappellant's motion to suppress.

Affirmed.

Stroud, C.J., and Hart, J., agree.