NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JUDGE KAREN R. BAKER

DIVISION IV

LARRY DEWAYNE HALL

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR02-134

OCTOBER 9, 2002

APPEAL FROM THE CRITTENDEN COUNTY CIRCUIT COURT

[CR2000-710]

HONORABLE JOHN NELSON FOGLEMAN, CIRCUIT JUDGE

AFFIRMED

Appellant, Larry Dewayne Hall, was convicted of aggravated robbery by a jury in Crittenden County. He was sentenced as a habitual offender to sixty years' imprisonment in the Arkansas Department of Correction. On appeal, he argues that the "trial court erred in ruling that his confession was admissible and that his waiver of rights was voluntary, knowingly, and intelligently given." In essence, his argument is that the trial court erred in denying his motion to suppress. We affirm.

On August 8, 2000, there was a robbery at the Flash Market in West Memphis. Larry K. Mitchell investigated the circumstances of the robbery. Detective Mitchell testified at the pre-trial hearing on appellant's motion to suppress his statement. He stated that he followed normal procedure when he interviewed appellant at approximately 6:15 p.m. on August 8, 2000. He advised

appellant of his Miranda rights prior to asking him any questions. Appellant filled out the top portion of the Miranda rights form, which included questions about his name, date of birth,education level, where the interview took place, the date, and the time. It also included the investigator's name and the nature of the investigation. Detective Mitchell then testified that he went through each individual Miranda right with appellant. After he read the right aloud, he asked appellant if he had any questions. Appellant responded that he understood after each right was read to him, and appellant placed his initials in a blank beside each right. Detective Mitchell then went to the waiver of Miranda rights portion and followed the same procedure. Appellant signed the waiver as well. Detective Mitchell also testified that he went through the subject description form with appellant, which was also normal procedure. The form gathers general information about the person, such as questions regarding name, date of birth, social security number, relatives, physical characteristics, height, weight, color of eyes, hair, scars or marks, education level, and marital status. This form was completed around 6:20 p.m. based on the information appellant provided. Detective Mitchell stated that he went over the Miranda rights form again with appellant on the tape.

Concerning appellant's appearance, Detective Mitchell testified that he appeared calm, rational, not violent, and not angry; and Mitchell did not notice anything unusual about him. He specifically stated that appellant did not appear to be under the influence of drugs or alcohol, and he based this opinion on his prior experience as a police officer in West Memphis.

Appellant testified at the hearing, asserting that he was under the influence of crack cocaine during the interview and that he had not slept in three to four days. During his testimony he stated that "[Detective Mitchell] did not go over the individual rights with me and tell me that I had the right to remain silent. What he did was give me the paper and we went over them." Appellant stated that he "signed them just to get it over with." He admits that he provided the information regarding his relatives on the subject description form and that he understood those questions. Moreover, he admitted that he had been arrested anywhere from ten to twelve times, "but I have notalways been advised of my Miranda rights. . . If I was advised of my Miranda rights I didn't know that is what it was."

Based on the testimony, the court denied appellant's motion to suppress and admitted his statement into evidence. At trial, appellant was convicted of the charge of aggravated robbery. His sole point on appeal is that the trial court erred in denying his motion to suppress his statement.

In 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 against the preponderance of the evidence. Lamb v. State, 77 Ark. App. 54, 70 S.W.3d 397 (2002). Due deference is given to the trial court's findings in the resolution of evidentiary conflicts and determinations of credibility. Id (citing Stephens v. State, 342 Ark. 151, 28 S.W.3d 260 (2000)).

There are two components to the inquiry into the validity of a defendant's waiver. First, we examine whether the statement was voluntary. Jenkins v. State, 348 Ark. 686, 74 S.W.3d 628 (2002). The "voluntary statement" argument addresses whether the statements were the product of a free and deliberate choice rather than intimidation, coercion, or deception. Id. We look at the following factors to aid us in making our determination: "age, education, and intelligence of the accused, lack of advice as to his constitutional rights, length of detention, repeated and prolonged nature of questioning, or the use of physical punishment." Id. Second, we examine whether the waiver was knowingly and intelligently made. Id. The "waiver of rights" argument focuses upon whether the waiver was made with a "full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it," as well as whether the accused was "uncoerced by police" when he made the choice to waive his rights. Id.

Appellant argues that because the form used to advise him of his rights did not contain a separate entry for him to sign if he chose to invoke, rather than waive, his rights, he was tricked intowaiving his rights. Appellant's claim is without merit. There was no evidence of coercion; nor was there evidence that appellant was unaware of the nature and the consequences of abandoning his right to remain silent. Moreover, Detective Mitchell testified that he went over the Miranda rights form with appellant, and he confirmed the circumstances surrounding the waiver during the tape recorded statement. Finally, appellant testified that he had an eleventh grade education, had obtained a GED, and that he had numerous prior contacts with the justice system. Based on the circumstances of this case, we hold that the trial court did not err in finding that appellant's statement was voluntary, and was knowingly and intelligently made.

Appellant also argues that his statement was not voluntary because he was on crack cocaine at the time. In Kemp v. State, 324 Ark. 178, 198, 919 S.W.2d 943, 953, cert. denied, 519 U.S. 982 (1996), our supreme court held that "whether an accused had sufficient mental capacity to waive his constitutional rights, or was too incapacitated due to drugs or alcohol to make an intelligent waiver is a question of fact for the trial court to resolve." Id. at 198 (citing Phillips v. State, 321 Ark. 160, 900 S.W.2d 526 (1995)); see Standridge v. State, 329 Ark. 473, 951 S.W.2d 299 (1997). Moreover, the court in Kemp held that intoxication goes to the credibility of a statement, not its admissibility. Id. Here, Detective Mitchell testified that based on his previous encounters with people under the influence of drugs or alcohol, appellant did not appear to be under the influence of crack cocaine. He testified that appellant appeared calm, rational, not violent, not angry, and he did not notice anything unusual about him. Appellant offered the only testimony that he was under the influence of crack cocaine at the time he made the statement. We defer to the superior position of the trial court to determine the credibility of the witnesses. See Bratton v. State, 77 Ark. App. 174, 72 S.W.3d 522 (2002).

Based on our independent review of the totality of the circumstances, we cannot say the trialcourt's denial of appellant's motion to suppress was clearly against the preponderance of the evidence.

Affirmed.

Stroud, C.J., and Crabtree, J., agree.