{ "id": 6139112, "name": "Lisa Holbird DEES v. STATE of Arkansas", "name_abbreviation": "Dees v. State", "decision_date": "1990-02-07", "docket_number": "CA CR 89-79", "first_page": "124", "last_page": "131", "citations": [ { "type": "official", "cite": "30 Ark. App. 124" }, { "type": "parallel", "cite": "783 S.W.2d 372" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "278 Ark. 261", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1748371 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/ark/278/0261-01" ] }, { "cite": "422 U.S. 590", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9639 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/us/422/0590-01" ] }, { "cite": "294 Ark. 639", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1895719 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/294/0639-01" ] }, { "cite": "297 Ark. 478", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1891371 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/297/0478-01" ] }, { "cite": "283 Ark. 327", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1879977 ], "weight": 3, "year": 1984, "pin_cites": [ { "page": "331" } ], "opinion_index": 0, "case_paths": [ "/ark/283/0327-01" ] }, { "cite": "368 N.E.2d 870", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "68 Ill. 2d 158", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5809407 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-2d/68/0158-01" ] }, { "cite": "372 N.E.2d 1324", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "53 Ohio St. 2d 135", "category": "reporters:state", "reporter": "Ohio St. 2d", "case_ids": [ 1800665 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/ohio-st-2d/53/0135-01" ] }, { "cite": "414 So.2d 366", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9542850 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/so2d/414/0366-01" ] }, { "cite": "672 P.2d 599", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 1485899 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/kan/234/0414-01" ] }, { "cite": "454 N.E.2d 845", "category": "reporters:state_regional", "reporter": "N.E.2d", "case_ids": [ 11049372 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/ne2d/454/0845-01" ] }, { "cite": "447 F.2d 735", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 808516 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/f2d/447/0735-01" ] }, { "cite": "396 U.S. 102", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11328791 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/us/396/0102-01" ] }, { "cite": "446 U.S. 544", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6185389 ], "weight": 3, "year": 1980, "pin_cites": [ { "page": "555" } ], "opinion_index": 0, "case_paths": [ "/us/446/0544-01" ] } ], "analysis": { "cardinality": 589, "char_count": 11095, "ocr_confidence": 0.913, "pagerank": { "raw": 1.305441788676267e-07, "percentile": 0.6231185679165079 }, "sha256": "0f97e2759e7909c90180cef3da80dcdf2f974ddf792ceb5293a8fb12c00a143e", "simhash": "1:37bcdf8d4997d0e7", "word_count": 1865 }, "last_updated": "2023-07-14T17:22:12.310921+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Corbin, C.J., and Cracraft, J., agree." ], "parties": [ "Lisa Holbird DEES v. STATE of Arkansas" ], "opinions": [ { "text": "Melvin Mayfield, Judge.\nAppellant was convicted of robbery and sentenced to five years in the Arkansas Department of Correction. On appeal, she argues that (1) the trial court erred in refusing to suppress statements she made to police while in custody, and (2) the court erred in denying her motion for continuance for time to obtain the presence of an out-of-state witness. We affirm.\nThe evidence shows that on March 21, 1988, Fort Smith police officers were called to appellant\u2019s house where a shooting had taken place. Appellant\u2019s mother and a police officer had been shot. Officer Clay Thomas asked appellant, who was a witness to the incident, to accompany him to the police station to make a statement about the shooting. At that point appellant was not a suspect in the shooting incident or any other crime and she was not under arrest; she was merely a witness to the shooting. Appellant was, however, informed of her Miranda rights and she signed the waiver form.\nAlthough the time sequence surrounding appellant\u2019s interrogation is somewhat unclear, Officer Thomas began taking a tape recorded statement from the appellant at approximately 1:00 p.m. While Thomas was questioning appellant about the shooting, he received information from other detectives that appellant\u2019s sister, Penny, who was also being interviewed, had implicated the entire family in a number of recent robberies. Thomas then questioned appellant about the robberies, but she denied any knowledge of them. About 3:00 p.m., Officer Thomas took appellant to her home to get her six-year-old daughter. They did not find her there, so they went to the child\u2019s school; however, the juvenile authorities had already picked up the child in anticipation that no one else would do it, and the appellant was later informed that this had occurred.\nAfter they returned to the police station, the appellant admitted that her mother had committed several of the robberies and that appellant had driven the vehicle. This statement was typed, the appellant signed it, and she was arrested. The following day, appellant gave another signed statement which gave more details of the robberies.\nCounsel for appellant made a motion to suppress appellant\u2019s statements on the basis that they were illegally obtained. After a hearing, the trial court denied the motion. On appeal, it is argued that the court erred in refusing to suppress appellant\u2019s statements because they resulted from an unlawful seizure in violation of appellant\u2019s Fourth Amendment rights of the United States Constitution and violated Arkansas Rule of Criminal Procedure 2.3. Appellant contends she was seized from her home without being told that she did not have to accompany the officer to the\npolice station and that reading her the Miranda rights did not cure the seizure. Although the officer testified that appellant was not under arrest, appellant contends she was \u201cin custody\u201d as defined in United States v. Mendenhall, 446 U.S. 544 (1980). She points out that she has only a tenth-grade education; that she was very emotional after her mother was shot; that she was not told she was free to leave; that Officer Thomas never let her out of his sight; and that she was even accompanied to the toilet by a policewoman.\nIt is well established that one is not under arrest simply because he voluntarily accompanies police officers to the station for questioning. See Morales v. New York, 396 U.S. 102 (1969); United States v. Bailey, 447 F.2d 735 (5th Cir. 1971); Dillon v. State, 454 N.E.2d 845 (Ind. 1983); State v. Coy, 234 Kansas 414, 672 P.2d 599 (1983); State v. Thibodeaux, 414 So.2d 366 (La. 1982); State v. Barker, 53 Ohio St. 2d 135, 372 N.E.2d 1324 (1978); and People v. Wipfler, 68 Ill. 2d 158, 368 N.E.2d 870 (1977). See also Owens v. State, 283 Ark. 327, 675 S.W.2d 834 (1984), where the Arkansas Supreme Court said that one who voluntarily accompanies an officer cannot claim he was coerced. 283 Ark. at 331. A person has not been seized within the meaning of the Fourth Amendment until, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. United States v. Mendenhall, 446 U.S. 544 (1980). Mendenhall also said: \u201cOur conclusion that no seizure occurred is not affected by the fact that the respondent was not expressly told by the agents that she was free to decline to cooperate with their inquiry, for the voluntariness of her responses does not depend upon her having been so informed.\u201d Id. at 555.\nIn reviewing a trial judge\u2019s decision on a motion to suppress, the appellate court makes an independent determination based upon the totality of the circumstances but will reverse the trial court\u2019s ruling only if that ruling was clearly against the preponderance of the evidence. Cooper v. State, 297 Ark. 478, 763 S.W.2d 645 (1989); Campbell v. State, 294 Ark. 639, 746 S.W.2d 37 (1988).\nUnder the totality of the circumstances in the instant case, we cannot hold that appellant was illegally seized or that she was even in custody until after she made her incriminating statements. In his testimony, Officer Thomas made it clear that when he first came into contact with appellant, she was not under arrest or suspicion. He testified that she voluntarily accompanied him to the police station to make a statement as a witness to the shooting incident at her house. The record shows that before the officer took any statement from appellant he told her she was not a suspect in the shooting incident or any other crime and that she was not under arrest. The officer testified that at no time did he use force or coerce appellant in any way; that she was free to go at any time prior to her confession; that she was advised of her Miranda rights and voluntarily waived them; and that at no time did appellant ask to leave or request the presence of an attorney.\nThe appellant also contends that it is undisputed that there was a violation of Arkansas Criminal Procedure Rule 2.3. To place this rule in proper perspective, we need to first look at Rule 2.2. That rule provides that a law enforcement officer may request a person to respond to questions, to appear at a police station, or to comply with any other reasonable request but \u201cno law enforcement officer shall indicate that a person is legally obligated to furnish information or to otherwise cooperate if no such legal obligation exists.\u201d Rule 2.2 ends with this sentence: \u201cCompliance with the request for information or other cooperation hereunder shall not be regarded as involuntary or coerced solely on the ground that such a request was made by a law enforcement officer.\u201d Turning now to Rule 2.3, we note it provides that if an officer acting pursuant to \u201cthis rule\u201d requests a person to come to or remain at a police station, prosecuting attorney\u2019s office or other similar place, \u201che shall take such steps as are reasonable to make clear that there is no legal obligation to comply with such request.\u201d\nConsidering the language in Rules 2.2 and 2.3, we cannot agree with appellant that it is \u201cundisputed\u201d that Rule 2.3 was violated. In deciding whether Officer Thomas took \u201csuch steps\u201d as were \u201creasonable\u201d to make clear that there was no legal obligation for appellant to accompany him to the police station, we have to consider the officer\u2019s testimony that he told appellant that she was not a suspect in the shooting incident or any other crime and that she was not under arrest. As the brief for the state contends: \u201cRule 2.3 does not require the recitation of magic words.\u201d Taken in context with Rule 2.2, we think under all the circumstances in evidence here there was an issue of fact as to whether Officer Thomas took \u201csuch steps\u201d as were \u201creasonable\u201d to make it clear that appellant had no legal obligation to comply with the request that appellant go to the police station with the officer. Thus, we do not reverse the trial court on this point.\nAppellant has also argued that the totality of the circumstances surrounding her statements show they were not freely and voluntarily given and were taken in violation of her Fifth Amendment rights. Since the evidence will support a finding that the statements were, in fact, voluntarily given, it clearly appears that this argument assumes that appellant was illegally detained. This is an assumption to which we do not agree. As discussed above, the evidence supports a finding that appellant went to the police station voluntarily; that she was read the Miranda warning and it was only after Officer Thomas was advised of the statement made by appellant\u2019s sister that the questioning of appellant centered on the robberies; that at this time the officers had information amounting to probable cause to hold appellant; and, therefore, she was not illegally detained when she made the statements admitting her part in the crime for which she was convicted. Since appellant\u2019s suppression argument is based upon the contention that she was illegally detained, it is not necessary to discuss Brown v. Illinois, 422 U.S. 590 (1975), relied upon by appellant for the contention that her inculpatory statements were not admissible because they were tainted by police illegality.\nAppellant also argues that the court abused its discretion in denying her motion for a continuance to enable her to locate a missing out-of-state witness. Appellant argues that she subpoenaed a witness to one of the robberies who could have provided exculpatory evidence. Although the beginning of the trial was delayed for several hours while the court got in touch with an Oklahoma sheriff and attempted to get the witness to court, the witness could not be located and did not appear at trial.\nA motion for continuance is addressed to the sound discretion of the trial court. Its action will not be reversed absent a clear abuse of that discretion amounting to a denial of justice, and the burden is on the appellant to demonstrate such abuse. In considering whether the court\u2019s discretion has been abused in a particular case, the circumstances of the case must be examined with emphasis on the reasons presented to the judge at the time. Kellensworth v. State, 278 Ark. 261, 644 S.W.2d 933 (1983).\nThe record shows that diligent effort had been made by both defense counsel and the prosecution to locate this witness. Her husband had expressed \u201csome reluctance\u201d to being involved in the case, according to defense counsel, and there is no indication that extra time would have resulted in the production of the witness. Under the circumstances, we cannot say that the trial court abused its discretion in refusing the continuance. Moreover, we note that the statement of this witness was introduced into evidence without objection.\nAffirmed.\nCorbin, C.J., and Cracraft, J., agree.", "type": "majority", "author": "Melvin Mayfield, Judge." } ], "attorneys": [ "Douglas, Hewett and Shock, by: Charles M. Duell, for appellant.", "Steve Clark, Att\u2019y Gen., by: Tim Humphries, Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Lisa Holbird DEES v. STATE of Arkansas\nCA CR 89-79\n783 S.W.2d 372\nCourt of Appeals of Arkansas Division II\nOpinion delivered February 7, 1990\nDouglas, Hewett and Shock, by: Charles M. Duell, for appellant.\nSteve Clark, Att\u2019y Gen., by: Tim Humphries, Asst. Att\u2019y Gen., for appellee." }, "file_name": "0124-01", "first_page_order": 148, "last_page_order": 155 }