ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

LARRY D. VAUGHT, JUDGE

DIVISION I

DONALD RAY FRAZIER, JR.

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR00-1341

June 27, 2001

APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT

CR97851-1; CR97-906-1

HON. BERLIN C. JONES, JUDGE

AFFIRMED

Appellant, Donald Ray Frazier, Jr., was convicted by a jury of two counts of robbery, class B felonies; two counts of unauthorized use of a vehicle, class A misdemeanors; false imprisonment, class B felony; and theft of property, class A misdemeanor. Appellant was sentenced to a total of thirty years' imprisonment. For reversal, appellant argues that the trial court erred in denying his motion to suppress a statement he gave to police because it was not given voluntarily. We affirm.

At the suppression hearing, Sergeant Eugene Butler of the Jefferson County Sheriff's Department testified that he was involved in the investigation of two robberies occurring on September 1, 1997. On September 30, 1997, Butler learned over his police radio that a robbery occurred where a sawed-off, double barrel, 410-gauge shotgun had been used. The shotgun caught Butler's attention because a similar gun had been stolen during one of the September 1, 1997, robberies. Hearing that a suspect was found with the gun, Butler went to the scene to assist. As a result of Butler's involvement in the investigation of the September 30 incident, he obtained two statements from appellant, in one of which he confessed to his involvement in two incidentsoccurring on September 1, 1997.

On September 30, after being arrested for his involvement in a robbery that day, appellant was taken to the Pine Bluff Police Department, where he was interviewed several times over the course of several days. On September 30, Butler was present during one interview, along with Officer Terry Hopson, who read appellant his rights. Appellant signed the rights form, indicating that he understood his rights, and his statement was taken.

Butler spoke with appellant again on October 1, 1997, after he read appellant his rights and appellant signed the waiver form. Appellant admitted that he used the shotgun in the September 30 robbery and that he obtained the shotgun from Bernard Marks. However, appellant denied any involvement in the two September 1, 1997, robberies. Appellant mentioned a couple of names, including Bernard Marks and Robert Phillips. Butler testified that he spoke to Marks on October 1, 1997. Marks told Butler that appellant, Lester Phillips, and Antonio Lindsey arrived at a residence where Marks was present. Marks stated that the men were in a Lexus, and he knew that none of them owned a Lexus. When they arrived, they told Marks that they had just robbed a liquor store. Butler testified that the Starlett Liquor Store had been robbed on September 1, 1997.

On October 2, 1997, Butler again spoke with appellant after he advised him of his rights and had him sign the rights form, indicating he understood it. Appellant agreed to give a statement without an attorney present. In this statement appellant admitted that on September 1, 1997, he, Lester Phillips, and Antonio Lindsey stole Willie Perkins's van and robbed James Thomas's liquor store at gunpoint, taking merchandise and a shotgun. Appellant further admitted that they took Thomas's Lexus keys and began putting the merchandise in the trunk, along with Thomas, and then drove to Pine Bluff. He stated that they eventually let Thomas out of the trunk and proceeded to ride around until they approached a couple walking. At this point, Phillips stopped the vehicle, and appellant exited with the revolver and told the couple to give him their money. Butler testified thathe did not tell appellant he would try to help him if he confessed.

Appellant also testified at the suppression hearing. His testimony is summarized as follows. He was sixteen years old in October 1997 and had only completed the tenth grade. He had been receiving social security benefits since he was eleven because of learning disabilities. Appellant came into contact with Officer Butler in October 1997, when Butler along with Detective Dorman questioned him about a robbery. He recalled being taken to the police station, given something to eat and drink, and asked if he was going to give a statement. Appellant answered "no" and stated he "was ready to go." Dorman left, with Butler and appellant remaining by themselves. Appellant testified that Butler told him, "I'm black, you're black. You need to give me a statement. Because if you don't give me [a] statement, you're going to get a life sentence. And without me . . . nobody [is] going to help you. I'm the only one that can help you." Appellant then gave Butler a statement on the September 30 robbery, not the September 1 robberies. Butler questioned appellant about his involvement in the September 1 robberies, which appellant denied. Appellant recalled Butler stating that he needed to tell him about the September 1 robberies, and again appellant said he did not know anything about those incidents. Butler then had appellant taken to Jefferson County Juvenile, where he stayed for two days until Butler picked him up and took him to his office.

Appellant remembered hearing Lester Phillips's tape-recorded statement being played over and over as he walked to Butler's office. He testified that Butler asked him if he was going to give a statement and told him that Phillips had already told him what happened. Butler allegedly told him that Phillips and Lindsey already told police that appellant had committed the crimes and if appellant did not give a statement he would get a life sentence. Appellant also stated that Butler told him that he "would help" him. As appellant began his statement, Butler allegedly stated that he was "going to try to get [appellant] charged as a juvenile" and that he was "the only person that could help [him]." Butler, however, did not appeal to appellant "black man to black man" during thisinterview. After appellant began to give the statement, he told Butler he wanted to stop. Butler stopped the tape and told appellant it would be to his benefit to finish the statement.

Appellant claimed that the statement he gave regarding the September 1 incidents was not true and that he gave those statements because he was deceived, thinking he would be charged as a juvenile. He thought that if he did not give the statement, he would go to the penitentiary for the rest of his life, based on what Butler told him. After hearing the evidence, the trial court denied the motion to suppress.

A custodial statement is presumptively involuntary, and it is the State's burden to prove by a preponderance of the evidence that a custodial statement was given voluntarily, and was knowingly and intelligently made. Humphrey v. State, 327 Ark. 753, 940 S.W.2d 860 (1997). The issue on appeal is whether appellant's confession was "the product of free and deliberate choice rather than intimidation, coercion, or deception." Sanford v. State, 331 Ark. 334, 345, 962 S.W.2d 335, 341 (1998)(citations omitted). When reviewing a trial court's ruling on a motion to suppress, we make an independent determination based upon the totality of the circumstances and reverse only if the ruling is clearly erroneous or against the preponderance of the evidence. Thomas v. State, 65 Ark. App. 134, 985 S.W.2d 752 (1999). The relevant factors are the age, education, and intelligence of the accused; the lack of advice as to his constitutional rights; the length of detention; the repeated and prolonged nature of questioning; and the use of mental or physical punishment. Sanford, supra.

A confession obtained through a false promise or reward of leniency is invalid. Humphrey, supra. Whether a confession was made pursuant to a promise of leniency is an issue that is decided on a case-by-case basis. Stone v. State, 43 Ark. App. 203, 863 S.W.2d 319 (1993). When testimony concerning the circumstances surrounding the taking of a confession is conflicting, it is within the trial court's province to weigh the evidence and resolve the credibility of the witnesses. Williamsv. State, 321 Ark. 344, 902 S.W.2d 767 (1995).

The alleged false promises and threats that appellant claims induced his confession occurred on September 30 and October 2. On September 30, Butler allegedly told appellant "I'm black, you're black. You need to go on and give me a statement. Because if you don't give me [a] statement, you're going to get a life sentence. And without me . . . nobody [is] going to help you. I'm the only one that can help you." The statement given on September 30 however is not the inculpatory statement. It should be noted that appellant was read his rights again and signed a new waiver of rights form each time Butler spoke to him.

On October 2, Butler took appellant to his office where he allegedly could hear Lester Phillips's taped statement being played. Appellant claims that Butler asked if he was going to give a statement since Phillips and Lindsey had already given statements. Butler allegedly repeated that appellant would get a life sentence if he did not make a statement. It is at this time that Butler allegedly told appellant he would try to get him charged as a juvenile. Appellant claims he made the statement believing he would be charged as a juvenile. Butler denied making any promises to appellant in obtaining his statement, and there was no evidence he did anything to get appellant charged as a juvenile.

Appellant was sixteen at the time he made the statement. He had completed the tenth grade, and made average, below average, and failing grades in school. Appellant had a learning disability for which he had received social security since he was eleven or twelve years old. There was no testimony as to the length of the interrogation or whether the appellant had a history with the criminal-justice system. Appellant was read his rights and signed a waiver of rights form. Moreover, the form he signed on October 2 actually enlarged his rights because it provided that as a juvenile, he could have his parent present if requested. Appellant never requested an attorney or a parent to be present. Further, Butler's alleged appeal to appellant "black man to black man"occurred only during the September 30 statement, not the October 2 statement he attempted to suppress.

Appellant also contends that Butler told him he would get a life sentence if he did not make a statement. A conviction of aggravated robbery carries the potential of a life sentence. See Ark. Code Ann. § 5-4-401 (Repl. 1997) and § 5-12-103 (Repl. 1997). Although appellant testified that Butler mentioned the life sentence during two separate interviews, there was no indication that he referred to it repeatedly. Butler testified that appellant was not coerced into giving the statement, and the waiver of rights form that appellant signed indicted that no threats or promises had been made and that he had not been coerced. Likewise, appellant did not indicate that he did not understand the rights forms.

The facts of this case are similar to Humphrey v. State, supra. There, appellant challenged the denial of his motion to suppress a statement given to police, and the supreme court affirmed. The facts indicated that Humphrey was fifteen years old at the time of the statement and IQ tests revealed average range of intellectual functioning. Humphrey testified that the conditions where he was held after being arrested were poor; he was cold and was not offered anything to drink. He stated that the officer appealed to him "black man to black man" and told him he was trying to help him. He said the officer allegedly came to his cell, gave him a piece of paper, and told him to write out what happened. Humphrey stated that when the officer read what he wrote, the officer told him that he could get life without parole and warned him of getting raped in prison, and further told him not to say anything until he confessed. The officer on the other hand testified that he took a statement from Humphrey and sent him back to the cell, and a few hours later he learned that Humphrey was willing to make another statement so he went to the cell and reminded him of his rights given earlier by another officer. The officer stated that Humphrey indicated he was willing to talk and a video-taped statement was taken. The supreme court found that the trial court's denialof the motion to suppress was not clearly erroneous, noting that credibility determinations are best resolved by the trial court.

Similar to Humphrey, supra, the only evidence that Frazier's October 2 statement was obtained by threats or through a false promise of reward comes from his own testimony. Therefore, this is a credibility issue that is best resolved by the trial court. Humphrey, supra. Based on the totality of the circumstances surrounding appellant's confession, we cannot say that the trial court's conclusion that the statement was voluntary was clearly erroneous. Accordingly, we affirm the trial court's denial of appellant's motion to suppress.

Affirmed.

Hart and Neal, JJ., agree.