ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION IV

LLOYD KEISTLER

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 03-40

September 24, 2003

APPEAL FROM THE JEFFERSON

COUNTY CIRCUIT COURT

[CR-2001-391-2]

HONORABLE RANDALL L.

WILLIAMS, SPECIAL CIRCUIT

JUDGE

AFFIRMED

John F. Stroud, Jr., Chief Judge

Appellant, Lloyd Keistler, was tried by a jury and found guilty of the offense of rape. The victim was a six-year-old boy. Appellant was sentenced to ten years in the Arkansas Department of Correction. His sole point of appeal is that the trial court erred in denying his motion to suppress because (1) Officer Lindsey failed to comply with the requirements of Rule 2.3 of the Arkansas Rules of Criminal Procedure, and (2) Lindsey made a false promise of leniency in order to obtain the Defendant's statement. We disagree and affirm.

We first address the State's contention that appellant is procedurally barred from making these arguments on appeal because he did not obtain a specific ruling on each of the arguments that he made in his motion to suppress and supporting brief. We disagree with the State's position. While it is true that the trial court's denial of appellant's motion was a general denial," each specific argument raised by appellant in his motion and brief was thereby denied as well. The issues are therefore preserved for our review.

At the suppression hearing, Bill Lindsey, a criminal investigator, testified that the victim's mother filed the initial report in this case on March 23, 2001, concerning the possible abuse of her six-year-old son by appellant. Lindsey stated that the case was assigned to him and that on April 6, 2001, he went to appellant's place of employment to talk to him. Appellant was not working that day, but Lindsey said that a fellow employee of appellant's told Lindsey where he was. Lindsey said that he went to the address that was given to him, and that he told appellant that he needed to talk to him about an investigation they were conducting. Lindsey testified that he asked appellant if he would mind coming down to Lindsey's office, and that he offered to take appellant and bring him back. He said that he told appellant that he did not have to talk to him, that he was not under arrest, that he was free to go about his business, that he did not have to come down to the office, but that he would appreciate it if appellant would talk to him. Lindsey stated that appellant asked him if it would be all right if he drove his own truck, and that Lindsey told him that would be fine. He stated that appellant followed him to the office.

Lindsey testified that he did not have any type of form that declared clearly in writing, "You don't have to be here." He stated that he told appellant what the investigation was about and that allegations had been made that he had molested the six-year-old boy. He said that he and appellant talked for an hour and a half between the time they arrived at the office and the time the taped interview began; the taped interview lasted approximately three minutes. Lindsey denied threatening appellant.

The transcript of the taped interview demonstrates that Lindsey said to appellant, "Mr. Keistler, you understand you're here voluntarily. That you have the right to leave at any time. This is a non-custodial interview. Do you understand that?" Appellant responded, "Yes, I do." Appellant then stated that he had gotten drunk and fondled the child on a couple of occasions.

Lindsey reported that appellant told him that he knew the child; that the child called him Uncle Lloyd; and that he took the child fishing and hunting. Lindsey said that appellant denied the allegations at first, and that appellant told him he had an alcohol problem. Lindsey stated that he did not make any promises to appellant with regard to what he would ask the prosecutor to do, but that he probably said something along the following lines to appellant:

I would do what I could for him. That I would talk to the prosecutors on his behalf if he cooperated with me. . . . I did end up going to the prosecutor . . . when the charges were filed, and I told him that Mr. Keistler cooperated with me.

Lindsey also testified that appellant never at any time during the interview indicated that he did not want to talk or that he wanted to leave.

John Holmes testified that appellant lives on property belonging to Holmes and his wife, Shirley, a co-worker of appellant. He said that on April 6, he and appellant were putting a roof on a work shop when Detective Lindsey pulled into the driveway. He stated that Lindsey told them that he was looking for Mr. Keistler, and that appellant identified himself. He said that Lindsey did not identify himself as an officer, that he was in an unmarked car, and that he was not in uniform.

Holmes testified that Lindsey said he needed to talk to appellant, and that when appellant asked him what about, Lindsey said they would discuss it later. Holmes reported that Lindsey said he needed appellant to come downtown with him; that appellant got off the roof; that he and Lindsey discussed how they were going to get down to the office; that Lindsey said he could ride with him, but that appellant said he wanted to take his own truck. Holmes said that based on the conversation, he was under the impression that Lindsey was pretty serious, that he needed appellant to come downtown right then, and that appellant was not given a choice to come later.

Appellant testified that on April 6, a white car pulled up to where he and Mr. Holmes were working on a roof, and that when the man in the car said he was looking for him, he got off the roof to talk to him. He said that the man told him he needed to talk to him and "wanted to know if I would go downtown with him," and that the man did not say what he wanted to talk about and did not identify himself. Appellant stated that he asked the man what it was about, and that the man said he would rather discuss it downtown. Appellant testified that the man said he would take him there and bring him home; that the man would not tell him what it was about; that he told the man he wanted to drive his own truck; and that the man told him that would be fine.

Appellant stated that he followed the man to the sheriff's office on Main Street; that he had never been interviewed by law enforcement before; that the man showed him to a room and asked him to sit down; that the man came back a few minutes later and closed the door behind him; and that he opened a folder and asked appellant if he knew the child in question. Appellant recalled that he acknowledged knowing the child, that the man made accusations, and that he denied them.

Appellant said that he was not informed when he got to the office that he did not have to be there or that he had the right to leave any time he got ready. He said that no other officers came into the room; that he did not see any other officer while he was at the office; that Officer Lindsey talked to him for about forty-five minutes before he started recording; and that before the taping started, Lindsey "made statements to me and promises about what would happen if I cooperated with him and told him something about this matter." Appellant also stated that Lindsey told him, "We just want you to make a confession and if you do, you know, then all you're going to get, you know, is just a slap on the hand and probation . . . [that] he had a lot of pull with the prosecuting attorney."

Appellant stated that Lindsey asked him if he would be willing to make a statement on tape; that Lindsey left the room to get a recorder; that after he finished recording, Lindsey asked him to sign something and took his picture; and that he then left. Appellant stated that he felt obligated to be at the office.

Lindsey was recalled to testify. He denied telling appellant that he would only get a slap on the wrist if he gave a confession or statement. He stated that he did tell appellant that he would probably talk to the prosecutor and tell him that appellant cooperated and that it would be up to the prosecutor, judge, and jury to decide what occurred.

Our supreme court has clarified the appropriate standard of review in suppression cases:

Our standard is that we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court.

Davis v. State, 351 Ark. 406, 413, 94 S.W.3d 892, 896 (2003).

1) Rule 2.3

Rule 2.3 of the Arkansas Rules of Criminal Procedure provides:

If a law enforcement officer acting pursuant to this rule requests any person to come to or remain at a police station, prosecuting attorney's office or other similar place, he shall take such steps as are reasonable to make clear that there is no legal obligation to comply with such a request.

In Shields v. State, 348 Ark. 7, 11-14, 70 S.W.3d 392, 393-95 (2002) (citations omitted) (emphasis in original), our supreme court explained:

[I]n Bell, [329 Ark. 422, 948 S.W.2d 557 (1997)], this court announced its intention to no longer interpret Ark. R. Crim.P. 2.3 to require a verbal warning of freedom to leave as a "bright-line rule for determining whether a seizure of the person has occurred under the Fourth Amendment and whether a statement to police officers must be suppressed." . . . Rather, the court stated, "we will view a verbal admonition of freedom to leave as one factor to be considered in our analysis of the total circumstances surrounding compliance with Rule 2.3. In short, when interpreting Rule 2.3 in the future in deciding whether a seizure of a person has transpired, we will follow United States v. Mendenhall, 446 U.S. 544 (1980)." . . .

In the Mendenhall case, the Supreme Court held that the question of whether or not one's consent to accompany police officers is voluntary or is the product of duress or coercion, express or implied, is to be determined by the totality of all the circumstances, and is a matter which the government has the burden of proving. . . . The court wrote as follows:

We adhere to the view that a person is "seized" only when, by means of physical force or a show of authority, his freedom of movement is restrained. Only when such restraint is imposed is there any foundation whatever for invoking constitutional safeguards. The purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but "to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals." . . . As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person's liberty or privacy as would under the Constitution require some particularized and objective justification.

* * * *

We conclude that a person has been "seized" within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled. . . . In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.

. . . .

As noted above, Rule 2.3 does not require an explicit statement that one is not required to accompany the police; rather, the police only need to take such steps as are "reasonable to make clear that there is no legal obligation to comply" with the request to come to the police station.

Moreover, our courts have held that the subjective beliefs and opinions of other persons, including law enforcement officers, regarding whether a person is free to leave are irrelevant. Shields, supra.

Here, after reviewing the totality of the circumstances surrounding this incident, we find no error in the trial court's denial of appellant's motion to suppress on this basis. Detective Lindsey testified that he told appellant that he did not have to talk to him, that he was not under arrest, and that he did not have to come down to the office. Moreover, appellant himself testified that Lindsey asked him if he would come downtown, and that when he told Lindsey that he wanted to drive himself, Lindsey told him that would be fine. Finally, appellant also testified that no other officers came into the room during the interview and that he did not see any other officers while he was at the office.

2) False Promises

A statement induced by a false promise of reward or leniency is not a voluntary statement. Roberts v. State, ____ Ark. ____, 102 S.W.3d 482 (2003). In deciding whether there has been a misleading promise of reward or leniency, we view the totality of the circumstances and examine, first, the officer's statement and, second, the vulnerability of the defendant. Id. If we determine in the first step that the officer's statement is an unambiguous false promise of leniency, there is no need to proceed to the second step. Id. Any conflict in the testimony of different witnesses is for the trial court to resolve. Simpson v. State, 339 Ark. 467, 6 S.W.3d 104 (1999).

Here, after reviewing the totality of the circumstances, we find no error in the trial court's denial of appellant's motion to suppress on this basis either. First, for the reasons previously discussed, this was not a custodial statement. Moreover, even if it were, with respect to the statements that appellant alleges that Lindsey made, and which Lindsey denies making, the conflict in testimony was clearly a matter for the trial court to resolve. For example, appellant claimed that Lindsey told him if he would confess, he would only get a "slap on the wrist" and probation. Lindsey denied making such a statement. The trial court clearly found Lindsey's testimony to be more credible. That leaves us with the statements that Lindsey acknowledged making:

I would do what I could for him. That I would talk to the prosecutors on his behalf if he cooperated with me. . . . I did end up going to the prosecutor . . . when the charges were filed, and I told him that Mr. Keistler cooperated with me. . . . [A]nd I told [Keistler] it is up to the prosecutor, the judge, and the jury to decide what occurred.

In examining Lindsey's statements, we find no false or misleading promise of reward or leniency. Detective Lindsey told appellant that he would talk to the prosecutors on his behalf if appellant cooperated with him, and he did so.

Affirmed.

Bird and Vaught, JJ., agree.