Clark v. State

Donald Lloyd CLARK v. STATE of Arkansas

CR 96-839                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered May 12, 1997


1.   Criminal procedure -- custodial confessions presumed
     involuntary -- burden is on State to show statement
     voluntarily made. -- All custodial confessions are presumed to
     be involuntary; the burden is upon the State to show that the
     statement was voluntarily made; a statement induced by a false
     promise of reward or leniency is not a voluntary statement.

2.   Criminal procedure -- no evidence appellant's confession
     obtained in exchange for false promise -- waiver of rights
     signed by appellant specifically provided that no promises had
     been made. -- There was no evidence that appellant's
     confession was obtained in exchange for a false promise where
     it did not appear that any county law enforcement officer made
     any promises to appellant that, if he would cooperate,
     appellant would get a ten-year sentence for the crimes
     committed in that county; the record revealed that when
     appellant gave a written statement the day after his arrest,
     he signed a waiver-of- rights form which specifically provided
     no promises were offered to induce him to make a statement;
     from a careful review of the evidence, the State breached no
     promise.

3.   Motions -- motion to suppress -- trial court did not err in
     denying. -- Even if it could be said that disputed testimony
     existed on the promise-of-leniency issue, officers clearly
     testified that they offered no reward to appellant at any
     time; the trial judge was entitled to believe this evidence;
     appellant, upon his arrest, was fully advised of his rights,
     was not detained or questioned for any prolonged length of
     time before giving his statement, was not subjected to mental
     or physical punishment; was forty-two years old, had attended
     college for four years, and was no stranger to the criminal
     justice system, having been previously convicted of two
     felonies; in view of this evidence, the supreme court could
     not say the trial court erred in denying appellant's
     suppression motion.

4.   Jury -- course and conduct of voir dire primarily within
     judge's discretion -- no reversal absent abuse of discretion.
     -- The course and conduct of voir dire examination of the
     venire persons is primarily within the trial judge's
     discretion, and the supreme court will not reverse absent an
     abuse of that discretion. 

5.   Jury -- appellant not charged with nor did State's proof have
     any connection with drugs -- no abuse of discretion in trial
     court's denial of appellant's proposed questioning on voir
     dire as irrelevant. -- Appellant's assertion that, because he
     suffered from drug addition, he should have been permitted to
     voir dire the jurors concerning their experiences with friends
     or family members who used drugs, was without merit where
     appellant was not charged with drug offenses, nor did officers
     find any drugs on appellant at the time of his arrest; drugs
     had nothing to do with the State's proof regarding the
     burglary and theft charges; neither did appellant raise drugs
     as an affirmative defense which might have made his
     questioning of jurors relevant; based upon the record before
     it, the supreme court concluded that the trial court did not
     abuse its discretion in denying appellant's proposed
     questioning on voir dire as being irrelevant.

5.   Criminal law -- sentencing -- trial court properly instructed
     jury on law applicable to parole, meritorious good time, and
     transfer -- irrelevant testimony ordered by appellant properly
     excluded. -- Appellant's argument that the trial court abused
     its discretion in precluding him, during the sentencing phase,
     from testifying to what it is like in the penitentiary and
     arguing how prison life works and how difficult it is to be a
     class-one prisoner was without merit; the trial court properly
     instructed the jury on the law applicable to parole,
     meritorious good time, and transfer as required by Ark. Code
     Ann.  16-97-103(1); appellant never proffered any additional
     law on the subject; his suggestions had nothing to do with the
     sentencing law as it applies to parole, meritorious good time,
     or transfer, but instead left the jury to speculate as to the
     relevance of appellant's description of prison life; the trial
     judge did not err in excluding the testimony and argument
     offered by appellant, since the relevancy of such matters was
     never shown.

6.   Appeal & error -- appellant failed to timely object to
     introduction of previous judgment -- issue waived on appeal. -
     - Appellant's contention that, during the penalty phase, the
     trial court erred in admitting into evidence a twenty-one-
     year-old prior conviction, was without merit where the record
     reflected that appellant had no objection to his twenty-one-
     year-old judgment when it was admitted into evidence;
     appellant's failure to timely object was a waiver of this
     issue on appeal. 


     Appeal from Clark Chancery Court; W. H. "Dub" Arnold, Judge;
affirmed.
     Baxter, Wallace & Jensen, by:  Ray Baxter, for appellant,
     Winston Bryant, Att'y Gen., by:  J. Brent Standridge, Asst.
Att'y Gen., for appellee.

     Tom Glaze, Justice.
     On May 2, 1995, the appellant, Donald Lloyd Clark, was
arrested for some burglaries and thefts committed in Dallas County. 
At the time of his arrest, Clark expressed relief to law
enforcement officers at being caught because he was suffering from
an addiction to crystal methamphetamine.  He claimed his addiction
cost him $300 a day, and he committed crimes to underwrite those
costs.  After his arrest, law enforcement authorities from three or
four other counties met in Dallas County to determine whether Clark
had any information concerning burglaries committed in their
surrounding counties.  At this time, Dallas County Sheriff Donnie
Ford told Clark that, if he would cooperate, Ford would recommend
that Clark serve only ten years' imprisonment to be served
concurrently for all the crimes he had committed.  Clark
subsequently cooperated with the various authorities, and in some
instances, accompanied them to drug dealers' houses where the
officers located stolen guns and other stolen property.
     On appeal, Clark argues that he had been given the impression
that the prosecuting attorneys of all the counties, where crimes
were committed, would follow the recommendations of law enforcement
officials and that he was "almost" told he would not need to hire
a lawyer because "it was just going to fall into place."  Clark
claims that, in reliance upon the "promise of leniency," he
cooperated extensively with authorities in six counties, including
Clark County.  However, the Clark County prosecutor refused to 
agree to Dallas County Sheriff Ford's ten-year concurrent
recommendation, but instead the prosecutor sought to impose the
maximum sentence for each of four felony offenses committed in
Clark County.  Consequently, Clark defended against the Clark
County charges, and filed a motion to suppress his confession in
that proceeding.  The Clark County Circuit Court denied Clark's
motion, and the matter went to trial.  Clark was tried on two
charges of burglary and two charges of theft of property, and he
was convicted and given the maximum sentence for each charge to run
consecutively -- a total of forty years.  
     Clark appeals his convictions, and argues the trial court
erred (1) in refusing to exclude his confessions and denying his
request to enforce the promise of leniency offered him by law
enforcement authorities, (2) in rejecting his request to voir dire
the jury regarding the subject of drug use, (3) in denying his
attorney the opportunity to elicit evidence or to give argument
during the sentencing phase of the trial regarding prison life and
the workings of parole and meritorious good time, and (4) in
permitting the State to introduce a conviction Clark sustained
twenty-one years ago.
     In considering Clark's initial suppression argument, we do so
in light of the rule all custodial confessions are presumed to be
involuntary and the burden is upon the State to show the statement
was voluntarily made.  Durham v. State, 320 Ark. 689, 899 S.W.2d 470 (1995).  Additionally, we are also guided by the rule that a
statement induced by a false promise of reward or leniency is not
a voluntary statement.  Hamm v. State, 296 Ark. 385, 757 S.W.2d 932
(1988).  From our careful review of the record in light of these
principles, we conclude there is no evidence that Clark's
confession was obtained in exchange for a false promise.  See
Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996); see also
Elwood v. State, 297 Ark. 101, 759 S.W.2d 553 (1988).
     Initially, we point out that nowhere does it appear in the
record that any Clark County law enforcement officer, and in
particular Sheriff Troy Tucker, promised Clark that, if he would
cooperate, Clark would get a ten-year sentence for the crimes
committed in Clark County.  Sheriff Tucker clearly denied having
made promises of any kind.  Indeed, Clark admitted he had already
told Dallas County Sheriff Ford about the Clark County burglaries,
and therefore, there was little or nothing for Sheriff Tucker to
gain by offering Clark any promise.
     Clark largely relied on Sheriff Ford's advice at the time of
Clark's arrest that, if Clark would cooperate, Ford would recommend
ten years.  Sheriff Ford made such recommendations to all the
prosecutors, including the prosecutor for Clark County.  However,
Ford testified that he had advised Clark that Ford could only make
a recommendation to the prosecutor, but he could not force the
prosecutor to take the recommendation.  In further support of
Ford's version of what was said, the record reveals that when Clark
gave a written statement the day after his arrest, he signed a
waiver of rights form which specifically provided no promises were
offered to induce him to make a statement.  In sum, we must
conclude that, from our careful review of the evidence, the state
breached no promise.
     Before leaving this point, we add that, even if it could be
said that disputed testimony existed on the promise-of-leniency
issue, officers clearly testified that they offered no reward to
Clark at any time.  The trial judge was entitled to believe this
evidence.  Everett v. State, 316 Ark. 213, 871 S.W.2d 568 (1994). 
This is especially true considering the facts in this case.  For
example, Clark, upon his arrest, was fully advised of his rights,
was not detained or questioned for any prolonged length of time
before giving his statement, and was not subjected to mental or
physical punishment.  Clark is forty-two years old and has attended
college for four years.  Plus, he is no stranger to the criminal
justice system, having been previously convicted of two felonies. 
Again, in view of this evidence, we cannot say the trial court
erred in denying Clark's suppression motion.
     In Clark's second point, he asserts that, because he suffered
from drug addition, he should have been permitted to voir dire the
jurors concerning their experiences with friends or family members
who used drugs.  Clark cites no case directly in point, but refers
to Jeffries v. State, 255 Ark. 501, 501 S.W.2d 600 (1973), where,
during voir dire, the trial court dismissed a juror who volunteered
that he was more prejudiced than others in drug cases and believed
that, if a person was in possession of an illegal drug, that was
evidence of guilt.  On appeal, Jeffries further argued that, while
the juror was properly excused, the trial court erred in failing to
grant a mistrial.  This court rejected Jeffries' argument.  Even
so, Clark urges that the Jeffries decision indicates the trial
court acted appropriately in dismissing the juror for cause and
reflects adequate reason for the trial court in the present case to
at least allow Clark to have questioned prospective jurors
concerning their views on or experience with drugs. 
     Of course, Clark was not charged with drug offenses as was the
case with the defendant in Jeffries.  Nor did officers find any
drugs on Clark at the time of his arrest.  Aside from Clark's
efforts to inject the issue of drugs at trial through argument and
cross examination, drugs had nothing to do with the State's proof
regarding the burglary and theft charges.  Neither did Clark raise
drugs as an affirmative defense which might have made his
questioning of jurors relevant.  Cf. Davis v. State, 293 Ark. 472,
739 S.W.2d 150 (1987).  Arkansas law is well settled that the
course and conduct of voir dire examination of the veniremen is
primarily within the trial judge's discretion and this court will
not reverse absent an abuse of that discretion.  Hall v. State, 315
Ark. 385, 868 S.W.2d 453 (1994).  Based upon the record before us,
we believe the trial court did not abuse its discretion in denying
Clark's proposed questioning on voir dire as being irrelevant.
     In his third argument, Clark submits the trial court abused
its discretion in precluding him, during the sentencing phase, from
testifying to what it is like in the penitentiary and arguing how
prison life works and how difficult it is to be a class-one
prisoner -- a classification needed to obtain sentence reduction
and an early release.  In considering this point, we are guided by
Ark. Code Ann.  16-97-103(1) (Supp. 1995), which in pertinent part
provides that evidence relevant to sentencing by either the court
or a jury may include the law applicable to parole, meritorious
good time, or transfer.
     During the sentencing phase, Clark testified that 80% of the
people in the penitentiary were there because of drugs.  When asked
to tell the jury about what it is like to be in the penitentiary,
the State objected, stating such inquiry was outside the realm of
sentencing.  The trial court agreed.  And later, after the trial
judge instructed the jury concerning parole and meritorious good
time, defense counsel argued to the jury that the prosecutor "would
have us believe that it's an automatic one-sixth of the time," but
"That's not what the instruction says and that sure isn't how
prison life works."  Counsel further argued that a prisoner only
gets good time provided he or she is a class-one prisoner -- a
classification that is not easy to achieve.  The State objected to
Clark's testimony and defense counsel's argument, touching on
prison life and the difficulties in obtaining a sentence reduction. 
The trial court sustained the State's objections, noting the
legislature authorized the only option to be given a jury.
     In keeping with that law,  16-97-103(1), and the law
applicable to parole, meritorious good time or transfer, the trial
judge read the following instruction to the jury:
          In your deliberations on the sentence to be imposed,
     you may consider the possibility of the transfer of
     Donald Clark from the Department of Correction to the
     Department of Community Punishment.  After he serves one-
     third of any term of imprisonment to which you may
     sentence him, he will be eligible for transfer from the
     Department of Correction to the Department of Community
     Punishment.  If transfer is granted, he will be released
     from prison and placed under post-prison supervision. 
     The term of imprisonment may be reduced further, to one-
     sixth of any period you impose, if he earns the maximum
     amount of meritorious good time during his imprisonment.
          Meritorious good time is time-credit awarded for
     good behavior or for certain achievements while an inmate
     is confined in a Department of Correction or Community
     Punishment facility, or in a jail while awaiting transfer
     to one of those facilities.  It is awarded an inmate on
     a monthly basis so that he receives one day for every day
     served, not to exceed thirty days per month.  Accrual of
     meritorious good time does not reduce the length of a
     sentence but does decrease the time the defendant is
     required to be imprisoned before he becomes eligible for
     transfer to community supervision, under which the
     remainder of his sentence will be served.  
See AMCI 2d 9402 and 9403; see also Ark. Bd. Corr. & Comm.
Punishm't Reg. 826-7.9-VI(A)(1) and (2).     
     We first note that, while the trial court properly instructed
the jury on the law applicable to parole, meritorious good time,
and transfer as required by  16-97-103(1), Clark never proffered
any additional law on the subject.  Instead, he merely offered his
own view on what prison life was like -- a subject that appears
totally irrelevant concerning what sentence should be imposed.  And
if Clark intended to offer evidence that the law pertaining to
parole or meritorious good time was not, for some reason, being
followed by prison authorities, no such suggestion was evident by
counsel's question to Clark concerning what it is like to be in the
penitentiary.  In short, the trial court was left to speculate as
to what relevance Clark's description of prison life might have on
his sentencing by a jury.
     The same lack of relevance ensues from defense counsel's
argument to the jury concerning how difficult it is to be a class-
one prisoner, which is required to achieve sentence reduction. 
Again, such a suggestion has nothing to do with the sentencing law
as it applies to parole, meritorious good time, or transfer, but
instead seems merely to suggest that prisoners who misbehave cannot
avail themselves of these sentence-reduction regulations.  In sum,
we cannot say the trial judge erred in excluding the testimony and
argument offered by Clark, since the relevancy of such matters was
never shown.
     In his final argument, Clark contends that, during the penalty
phase, the trial court erred in admitting into evidence a twenty-
one-year-old prior conviction.  He claims the conviction was
irrelevant and inadmissible since it was more than ten years old. 
See A.R.E. Rule 609(b).  The record, however, reflects Clark had no
objection to Clark's twenty-one-year-old judgment when it was
admitted into evidence, most likely, because  16-97-103(2)
authorizes both felony and misdemeanor prior convictions during the
sentencing phase.  Thus, Clark's failure to timely object is a
waiver of this issue on appeal.  Smallwood v. State, 326 Ark. 813,
935 S.W.2d 530 (1996).
     Arnold, C.J., not participating.