ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION II

EARNEST JEROME SPILLER

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR02-1070

August 27, 2003

APPEAL FROM THE MISSISSIPPI COUNTY CIRCUIT COURT

CR-2001-370

HON. CHARLES DAVID BURNETT, JUDGE

AFFIRMED

Larry D. Vaught, Judge

Appellant Earnest Jerome Spiller appeals a jury verdict in which he was convicted of second-degree murder and sentenced to fifteen years in the Arkansas Department of Correction. He raises three points on appeal: (1) whether the trial court erred when it refused to give the proffered jury instruction on causation; (2) whether the trial court erred when it failed to suppress the statement made by him to Mississippi County Sheriff's Department deputies on October 14, 2001; (3) whether there is sufficient evidence to support his second-degree murder conviction.

On October 14, 2001, Cordell Young was shot and killed on Lilly Street, in Blytheville, Arkansas. Dr. Steven Erickson, a medical examiner with the Arkansas State Crime Lab, testified that Young was shot three times and died as a result of the gunshot wounds. Three eyewitnesses identified appellant as the shooter. Appellant voluntarily turned himself in to the police, and he was arrested on October 14, 2001. He was charged with first-degree murder. A jury trial was held on July 24-26, 2002. The jury found appellant guilty of second-degree murder and sentenced him to fifteen years in the Arkansas Department of Correction. From that verdict comes this appeal.

We address appellant's third point first because it challenges the sufficiency of the evidence. On appeal, we address the sufficiency of evidence first to avoid double-jeopardy implications. See Alexander v. State, 78 Ark. App. 56, 77 S.W.3d 544 (2002); Steggall v. State, 340 Ark. 184, 8 S.W.3d 538 (2000). To preserve for appeal the issue of sufficiency of the evidence to support a conviction for a lesser-included offense, a defendant's motion for directed verdict must either name the lesser-included offense or address its elements. Ramaker v. State, 345 Ark. 225, 46 S.W.3d 519 (2001). A defendant's failure to address the lesser-included offense precludes appellate review of the sufficiency of the evidence sustaining it. Id. In the instant case, appellant specifically made his motion for directed verdict on the charge of first-degree murder. Although appellant did refer to the lesser-included charge of second-degree murder, he did so only to admit that a prima facie case had in fact been made on that charge:

If you go to the charge of murder in the second degree . . . it's a jury instruction - it's not that he's charged with that but it is a lesser included offense - Earnest Jerome Spiller knowingly caused the death of Cordell Young under circumstances manifesting extreme indifference to the value of human life, or with the purpose of causing serious physical injury to Cordell Young, caused the death of Cordell Young.

. . . .

And I believe that all those reasons those things are told and the reason I read off the definition of murder in the second degree - that is what has been proved - or a prima facie case has been made because he acted - if the testimony is believed and we take it in the light most favorable to the state - that he acted under circumstances manifesting extreme indifference to the value of human life, that with the purpose of causing serious physical injury, caused the death. (Emphasis added.)

Additionally, when appellant renewed his motion for directed verdict at the close of the evidence, he specifically stated that "[y]ou don't have a situation under murder first degree to continue this forward to the jury on that charge." We hold that appellant's argument as to the sufficiency of the evidence to support his conviction of the lesser-included offense of second-degree murder is not preserved for appellate review.

Additionally, we note that appellant has changed his argument on appeal. Below, he argued that the State had failed to prove beyond a reasonable doubt he purposely caused the death of the victim. On appeal, he challenges the sufficiency of the evidence for second-degree murder by raising the issue of another potential shooter. A defendant cannot change the grounds for a directed-verdict motion on appeal, but is bound by the scope and nature of the arguments presented at trial. Wallace v. State, 53 Ark. App. 199, 920 S.W.2d 864 (1996).

For appellant's next point on appeal, he argues that the trial court erred when it refused to give the proffered jury instruction on causation. At the conclusion of the testimony, appellant requested that the trial court give the jury AMCI 2d 603, which states:

You have been told that the State must prove that Earnest Jerome Spiller caused a particular result. Causation exists when the result would not have occurred except for the conduct of Earnest Jerome Spiller operating either alone or together with another cause unless the other cause was clearly sufficient to produce the result, and the conduct of Earnest Jerome Spiller was clearly insufficient by itself.

The trial court refused to give the instruction, and appellant made a proffer of the same.

Appellate courts have held that whenever there is a rational basis for giving a jury instruction, it must be given. Rainey v. State, 310 Ark. 419, 837 S.W.2d 453 (1992). Appellant claims there was a rational basis for giving the instruction in this case. Dr. Erickson testified thatthe victim sustained three separate gunshot wounds caused by three different bullets. Witnesses for the State testified that appellant fired two shots from a standing, non-moving position, near the driveway between 701 and 705 Lilly Street, and two bullet casings were found near that area. Dr. Erickson testified that the only fatal gunshot was the one to the back and that the wound was back to front, right to left, and slightly upward. Appellant asserts that there is a "substantial hole" in the evidence concerning the fatal shot. He claims he was not in the proper location or position to have fired the fatal shot. Appellant concedes that it was reasonable for the jury to find that he fired the shots that struck the victim's foot and knee on the left leg, but not that he fired the shot that struck the victim in the back and caused his death. He contends that the fatal shot had to come from an angle whereby the shooter was to the right of the victim and where the gun was pointed at an upward angle. Based upon this testimony, appellant maintains that causation was an issue.

In determining whether the trial court erred in refusing to give an instruction in a criminal trial, the test is whether the omission infects the entire trial such as the resulting conviction violates due process. See Henderson v. State, 349 Ark. 701, 80 S.W.3d 374 (2002); Brainstetter v. State, 346 Ark. 62, 57 S.W.3d 105 (2001). Appellant requested the instruction on causation because he reasoned that, even if the jury was convinced that appellant fired a gun at the victim, there was a rational argument supported by the evidence that a third and fatal shot came from a gun fired by someone else. Appellant argues that the refusal of the trial court to give the requested instruction infected the entire trial and violated his right to due process.

If a defendant has offered sufficient evidence to raise a question of fact concerning a defense, the jury instructions must fully and fairly declare the applicable law. See Henderson, supra. A trial court does not err in refusing to give a jury instruction, however, when the evidence does not support the giving of the instruction. Id. Moreover, when the matters addressed in a proffered instruction have been adequately covered in other instructions, the court does not err in refusing the proffered instruction. Calvin v. State, 313 Ark. 238, 855 S.W.2d 285 (1993).

At trial, the State presented evidence that the victim died of a gunshot wound to the back, and three eyewitnesses testified that they saw appellant shoot the victim as he was running away from appellant. The trial court rejected appellant's proffered instruction on causation, noting that the sole issue in the case, whether appellant caused the victim's death, was adequately covered by other instructions. The jury instruction given on second-degree murder provided:

If you have a reasonable doubt of Earnest Jerome Spiller's guilt of the offense of murder in the first degree, you will then consider the charge of murder in the second degree.

To sustain this charge, the state must prove beyond a reasonable doubt that Earnest Jerome Spiller knowingly caused the death of Cordell Young under circumstances manifesting extreme indifference to the value of human life; or that Earnest Jerome Spiller with the purpose of causing serious physical injury to Cordell Young, caused the death of Cordell Young. (Emphasis added.)

The trial court gave instructions on both first and second-degree murder, which provided that the jury must determine whether appellant caused the death of the victim, either purposely or knowingly. The trial court also instructed the jurors that they could use their common sense and life experiences in making their determinations. See Allen v. State, 64 Ark. App. 49, 977 S.W.2d 230 (1998). If the jury found that appellant had, in fact, shot the victim, it could then reasonably conclude that appellant either purposely or knowingly caused the victim's death. The trial court properly determined that the issue of causation was adequately covered by the other instructions given, and accordingly, did not err by refusing to give the proffered instruction.

Appellant's final issue is that the trial court erred when it failed to suppress appellant's statement made to Mississippi County Sheriff's Department deputies on October 14, 2001. 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 reverse only if the ruling is clearly against the preponderance of the evidence. Cherry v. State, 80 Ark. App. 222, 91 S.W.3d 547 (2003). The credibility of witnesses who testify at a suppression hearing about the circumstances surrounding the custodial statement is for the judge to determine, and we defer to the superior position of the trial judge in matters of credibility. Id.

A statement made while an accused is in custody is presumptively involuntary, and the burden is on the State to prove, by a preponderance of the evidence, that a custodial statement was given voluntarily and was knowingly and intelligently made. Jones v. State, 344 Ark. 682, 42 S.W.3d 536 (2001). Once in custody, no interrogation is allowed absent the Miranda warning and a knowing, voluntary waiver. Shelton v. State, 287 Ark. 322, 699 S.W.2d 728 (1985). However, Miranda warnings are not required if (1) a statement can be classified as a voluntary, spontaneous statement, whether or not made while in custody, or (2) if the questioning by police is simply investigatory. Id.

Here, appellant voluntarily turned himself in to the Mississippi County Sheriff's Department at approximately 10:00 p.m. on October 14, 2001. At that time Deputy Clowes was on duty. Subsequent to making phone calls to the Blytheville Police Department, Deputy Clowes was instructed to take appellant into custody. He placed appellant in a secure area, behind two locked doors, to hold him until someone from the Blytheville Police Department arrived to transport him to their facility. Appellant was detained at that time and was not free to leave. Appellant argues he was in custody because his "freedom of action" had been curtailed to a degree such as that associated with a formal arrest. The trial court, in fact, made a determination that appellant had been placed in custody at 10:00 p.m.

According to the time frame set forth above, appellant had been in custody for approximately forty-two minutes prior to the time Mississippi County deputies Carter and Hicks arrived to complete the booking process. The custodial safeguards prescribed by Miranda are applicable as soon as a suspect's freedom of action is curtailed to a degree associated with a formal arrest. See State v. Spencer, 319 Ark. 454, 892 S.W.2d 484 (1995). It is undisputed that Deputies Carter and Hicks did not read appellant his Miranda rights. Upon his arrival to the secure area, Deputy Carter asked appellant his name. Appellant claims that as he was being moved from the radio room to the booking area, Deputy Carter made an additional comment to appellant, stating that Blytheville wanted him on a murder charge. It was immediately after that comment that appellant had a look of shock on his face and made the comment, "I done kilt the motherf***." Appellant maintains that the statement was not spontaneous, but rather elicited. He argues that the term "interrogation" under Miranda refers not only to questioning, but also to words or actions on the part of the police which the police should know are reasonably likely to elicit a response from the suspect. See Weber v. State, 326 Ark. 564, 933 S.W.2d 370 (1996).

It is well settled that a suspect's spontaneous statement, although made in police custody, is admissible against him. See Fairchild v. State, 349 Ark. 147, 76 S.W.3d 884 (2002). When a statement is spontaneous, it is irrelevant whether it was made before or after Miranda warnings have been given, and whether or not the defendant was in custody; the statement is admissible because it was not coerced in violation of the Fifth Amendment's privilege against self-incrimination. Id. In determining whether a defendant's custodial statement was spontaneous, the decisive factor is whether it was made in response to police interrogation, which includes not only express questions, but also any words or conduct by the police designed to elicit an incriminating response from the defendant. Id.

The State maintains that the incriminating statement in this case was admissible because it was spontaneous and not a product of police interrogation. The State concedes that police conduct other than direct questions may constitute an "interrogation" if designed to elicit incriminating information from a suspect, see Fairchild, supra, but maintains that the deputies' conduct in this particular case did not meet that criterion. Arkansas law requires an arresting officer to inform the arrested person of the cause of the arrest. Ark. R. Crim. P. 4.4 (2003). In this case, the deputies' limited communications with appellant were merely routine booking procedures rather than an interrogation. Under the totality-of-the-circumstances analysis and giving deference to the superior position of the trial judge regarding the credibility of the witnesses, we cannot say that the trial court's denial of appellant's motion to suppress was clearly against the preponderance of the evidence. Accordingly, we affirm on this point.

Affirmed.

Baker and Roaf, JJ., agree.