{ "id": 6138656, "name": "Randy LEACH v. STATE of Arkansas", "name_abbreviation": "Leach v. State", "decision_date": "1992-05-13", "docket_number": "CA CR 91-169", "first_page": "117", "last_page": "131", "citations": [ { "type": "official", "cite": "38 Ark. App. 117" }, { "type": "parallel", "cite": "831 S.W.2d 615" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "276 Ark. 469", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1751480 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/ark/276/0469-01" ] }, { "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": "15 Ark. App. 393", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6143375 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/ark-app/15/0393-01" ] }, { "cite": "25 Ark. App. 157", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139162 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark-app/25/0157-01" ] }, { "cite": "30 Ark. App. 82", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137643 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark-app/30/0082-01" ] }, { "cite": "278 Ark. 325", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1748350 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/ark/278/0325-01" ] }, { "cite": "300 Ark. 35", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1886742 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/300/0035-01" ] }, { "cite": "287 Ark. 158", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1876611 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/ark/287/0158-01" ] }, { "cite": "476 U.S. 683", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12764 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/us/476/0683-01" ] }, { "cite": "99 S.Ct. 619", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1972, "opinion_index": 0 }, { "cite": "404 U.S. 477", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6174724 ], "weight": 2, "year": 1972, "opinion_index": 0, "case_paths": [ "/us/404/0477-01" ] }, { "cite": "253 Ark. 676", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1627333 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/ark/253/0676-01" ] }, { "cite": "254 Ark. 904", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1624030 ], "weight": 2, "year": 1973, "opinion_index": 0, "case_paths": [ "/ark/254/0904-01" ] }, { "cite": "285 Ark. 294", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1877731 ], "weight": 4, "year": 1985, "pin_cites": [ { "page": "295" }, { "page": "421" } ], "opinion_index": 0, "case_paths": [ "/ark/285/0294-01" ] }, { "cite": "275 Ark. 264", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1753650 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/ark/275/0264-01" ] }, { "cite": "469 U.S. 980", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12037154, 12037092, 12037222, 12036810, 12036458, 12036858, 12036689, 12036595, 12036404, 12036917, 12036726, 12037015, 12036506, 12036635, 12036959 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/us/469/0980-14", "/us/469/0980-13", "/us/469/0980-15", "/us/469/0980-08", "/us/469/0980-02", "/us/469/0980-09", "/us/469/0980-06", "/us/469/0980-04", "/us/469/0980-01", "/us/469/0980-10", "/us/469/0980-07", "/us/469/0980-12", "/us/469/0980-03", "/us/469/0980-05", "/us/469/0980-11" ] }, { "cite": "281 Ark. 91", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1742352 ], "weight": 4, "year": 1983, "opinion_index": 0, "case_paths": [ "/ark/281/0091-01" ] }, { "cite": "384 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046400 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/us/384/0436-01" ] }, { "cite": "306 Ark. 443", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1900959 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/306/0443-01" ] }, { "cite": "305 Ark. 112", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1916754 ], "weight": 4, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/305/0112-01" ] }, { "cite": "834 F.2d 1382", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10551989 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "1385" } ], "opinion_index": 0, "case_paths": [ "/f2d/834/1382-01" ] }, { "cite": "927 F.2d 999", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1797418 ], "year": 1991, "pin_cites": [ { "page": "1002" } ], "opinion_index": 0, "case_paths": [ "/f2d/927/0999-01" ] }, { "cite": "405 U.S. 1069", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11787235, 11786886, 11786572, 11786509, 11786606, 11787165, 11786448, 11787341, 11786355, 11787063, 11787416, 11786811, 11786972, 11786653 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/us/405/1069-12", "/us/405/1069-08", "/us/405/1069-04", "/us/405/1069-03", "/us/405/1069-05", "/us/405/1069-11", "/us/405/1069-02", "/us/405/1069-13", "/us/405/1069-01", "/us/405/1069-10", "/us/405/1069-14", "/us/405/1069-07", "/us/405/1069-09", "/us/405/1069-06" ] }, { "cite": "720 F.2d 548", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1903879 ], "year": 1983, "pin_cites": [ { "page": "556" } ], "opinion_index": 0, "case_paths": [ "/f2d/720/0548-01" ] }, { "cite": "7 Ark. App. 151", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138913 ], "weight": 4, "year": 1983, "pin_cites": [ { "page": "155" }, { "page": "699" } ], "opinion_index": 0, "case_paths": [ "/ark-app/7/0151-01" ] }, { "cite": "591 F.2d 513", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 521536 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "520", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/f2d/591/0513-01" ] }, { "cite": "30 Ark. App. 196", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140657 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark-app/30/0196-01" ] }, { "cite": "35 Ark. App. 148", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6649156 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark-app/35/0148-01" ] }, { "cite": "29 Ark. App. 61", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137211 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark-app/29/0061-01" ] }, { "cite": "284 Ark. 247", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1878611 ], "weight": 4, "year": 1984, "opinion_index": 0, "case_paths": [ "/ark/284/0247-01" ] } ], "analysis": { "cardinality": 1165, "char_count": 24737, "ocr_confidence": 0.892, "pagerank": { "raw": 1.8822729378321363e-07, "percentile": 0.7278387658894399 }, "sha256": "71e8267f06c0b1916f4a234aac0a83a482dca380844bbad185b2dc741d39f4ca", "simhash": "1:5f9e801a00765750", "word_count": 4127 }, "last_updated": "2023-07-14T19:57:25.403717+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Danielson and Mayfield, JJ., agree." ], "parties": [ "Randy LEACH v. STATE of Arkansas" ], "opinions": [ { "text": "John E. Jennings, Judge.\nAppellant, Randy D. Leach, was convicted of conspiracy to commit aggravated robbery and received a six year sentence and a $5,000.00 fine. Leach raises eighteen points on appeal, two of which require reversal. Pursuant to Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984), before we reverse and remand because of trial error we must consider whether the evidence is sufficient to sustain the conviction. Of the other issues raised we address only those which are likely to arise again on retrial.\nSome background is in order. On November 7, 1988, Conway Police Officer Ray Noblitt was killed when he investigated what appeared to be a theft of a flatbed trailer in progress. An investigation and manhunt resulted a few days later in the arrest of Kenneth Ray Clements, a felon, in connection with the murder. Pursuant to the investigation, police interviewed Denise Clements, wife of Kenneth, and her sister, Julie Nathe. Investigators then interviewed Conway Police Officer R.L. \u201cDickie\u201d McMillen and later Leach, who was also a Conway police officer. Within a week of the murder both McMillen and Leach had been placed under arrest on suspicion of conspiracy to commit theft of property. A grand jury was impaneled to investigate the death of Noblitt. The grand jury handed down indictments charging Kenneth Clements with capital felony murder and multiple counts of theft of property, conspiracy to commit burglary, conspiracy to commit aggravated robbery, and several other criminal charges; Dickie McMillen with being an accomplice to capital felony murder, two counts of conspiracy to commit aggravated robbery, conspiracy to commit theft of property, and two counts of conspiracy to commit burglary; and Leach with conspiracy to commit aggravated robbery and conspiracy to commit burglary. Both McMillen and Leach subsequently resigned from the police force. In the case at bar, Leach was convicted of conspiring with Kenneth Clements and Dickie McMillen to commit aggravated robbery of a courier for Wal-Mart when the courier was to deliver night deposits to a bank.\n1. SUFFICIENCY OF THE EVIDENCE\nLeach first argues that the evidence was insufficient to sustain his conviction for conspiracy to commit armed robbery. When the sufficiency of the evidence is challenged on appeal of a criminal conviction, we review the evidence, including any evidence which may have been erroneously admitted, in the light most favorable to the State and affirm if there is substantial evidence to support the verdict. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984); Williams v. State, 29 Ark. App. 61, 781 S.W.2d 37 (1989). Substantial evidence is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other without requiring one to resort to speculation or conjecture. Ward v. State, 35 Ark. App. 148, 816 S.W.2d 173 (1991). The fact that evidence is circumstantial does not render it insubstantial as the law makes no distinction between direct evidence of a fact and circumstances from which it may be inferred. Ryan v. State, 30 Ark. App. 196, 786 S.W.2d 835 (1990).\nAt trial, Lieutenant Doug Williams of the Arkansas State Police testified that in November of 1988 he was involved in an investigation of the Conway Police Department. In the course of that investigation he interviewed Leach, and a transcription of that interview was prepared. Sergeant J.R. Howard of the Arkansas State Police testified that he was present at the taking of Leach\u2019s statement. Howard read into the record the transcription of Leach\u2019s statement. Leach\u2019s statement described his relationship and contacts with Dickie McMillen and Kenneth Ray Clements.\nIn this statement, Leach said that McMillen and Clements picked him up one afternoon to ride over to the house of one Nolan in order to look at some hunting dogs. During that ride there was a discussion of farm equipment, and Leach was led to believe that Clements had stolen a tractor. He stated that, on another occasion, he and McMillen had discussed the possibility of robbing a Wal-Mart courier. McMillen and Clements were to work it out so that on an evening when Leach was escorting the courier to the bank, Clements would \u201cjust come up and snatch the money and run.\u201d Leach was to \u201cstall along and make it look good.\u201d He further stated:\nShots were talked about. I told them I didn\u2019t want anybody shooting at me. Uh, I can\u2019t remember anything was said about me firing a shot. Talked about, you know, if I took off after them or something, you know, run at them, run into one of those teller machines or something, damage my car so I couldn\u2019t pursue him.\nDenise Clements, Kenneth Clements\u2019s wife, testified with regard to the planned robbery of the Wal-Mart courier that \u201cKenneth was supposed to follow the courier truck and pull it over at some point or at the bank, rob the bank, and, uh, was to get away with the money and split it with the two other police officers.\u201d It is clear that the basis for this testimony was statements made by her husband to her. She said that Clements told her that he had followed the courier to find the route and time. She stated that Clements never left the house without a gun, \u201cno matter what he did.\u201d She testified that she was present at one meeting between Clements and McMillen where she sat in Clements\u2019s truck while he rode around with McMillen in McMil-len\u2019s truck. She said that McMillen often called, and that he used an alias of \u201cFrank.\u201d She testified that McMillen sold Clements a truck, that McMillen visited the house, and that Clements and McMillen had known each other for years.\nLeach argues that there was no evidence that the men conspired to commit armed robbery, or that he or the co-conspirators agreed or planned that they would be armed with a deadly weapon or would represent by words or conduct that they were so armed. From appellant\u2019s statement and the testimony of Denise Clements, we believe there was substantial evidence from which the jury could find Leach guilty of conspiracy to commit armed robbery.\n2. THE \u201cIN FURTHERANCE OF\u201d REQUIREMENT\nAppellant argues that the trial court erred in allowing statements attributed to Kenneth Clements to be admitted through the testimony of Denise Clements. The statements were admitted under Ark. R. Evid. 801(d) (2)(v) which provides that a statement is not hearsay if the statement is offered against a party and is a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy. Appellant argues, as he did below, that there was no evidence to indicate that any of the statements made by Kenneth Clements to his wife Denise were made \u201cin furtherance of the conspiracy,\u201d and thus the statements do not fall within the Rule. The witness herself characterized her husband as a liar, but added that \u201cwhen it came to boasting and bragging about things he had and was planning on doing, he was also very good at that.\u201d Appellant argues that there is no proof that Kenneth Clements\u2019s boasting and bragging to his wife in any way furthered the objective of the conspiracy to rob the WalMart courier. He relies on United States v. Eubanks, 591 F.2d 513 (9th Cir. 1979), applying Fed. R. Evid. 801(d)(2)(E), which is identical to the Arkanas rule. In Eubanks, Baca, the common-law wife of the deceased conspirator Gonzales, was allowed to testify to statements made by Gonzales about his involvement in a conspiracy to distribute heroin. The Ninth Circuit Court of Appeals reversed, finding that not all statements made by co-conspirators can be considered to have been made in furtherance of the conspiracy. The Court said:\nIn contrast, most of the statements made by Gonzales to Baca that incriminated appellants cannot reasonably be considered to have been in furtherance of the conspiracy. Gonzales and Baca had been living together in a common-law marriage relationship. Gonzales often discussed his activities with Baca, who did not participate in the alleged conspiracy until long after its inception. Baca testified that Gonzales told her that he was going to Tucson to obtain narcotics from Yanez. There is no evidence that Gonzales\u2019 statement was a declaration in furtherance of the conspiracy. Gonzales was not seeking to induce Baca to join the conspiracy and his statement did not assist the conspirators in achieving their objective. Gonzales\u2019 \u201cstatement was, at best, nothing more than [a] causal admission of culpability to someone he had individually decided to trust.\u201d\nSimilarly, when Gonzales informed Baca about the persons to whom he had spoken over the telephone, he was not making a declaration in furtherance of the conspiracy. Instead, he was merely informing his common-law wife about his activities. . . .\nAfter Baca began travelling to Tucson with Gonzales and assisted him with the arrangements for obtaining heroin, she assumed a role in the alleged conspiracy. Yet Baca\u2019s participation in the conspiracy did not convert Gonzales\u2019 statements to her into declarations in furtherance of the conspiracy. Most of Gonzales\u2019 statements to Baca that were included in her testimony did nothing to advance the aims of the alleged conspiracy.\n591 F.2d at 520 (citations omitted). The significance and necessity of the \u201cin furtherance\u201d requirement were examined by this court in Williams v. State, 7 Ark. App. 151, 645 S.W.2d 697 (1983), where it was noted that the reason for the \u201cin furtherance\u201d requirement was \u201cthe desire to strike a balance between the need to admit statements of coconspirators and the need to protect the accused against idle chatter of criminal partners.\u201d See also United States v. Layton, 720 F.2d 548 at 556 (9th Cir. 1983), cert. denied, 405 U.S. 1069 (1984); United States v. Johnson, 927 F.2d 999 at 1002 (7th Cir. 1991). We said, \u201c[T]he requirement is clear \u2014 although whether a statement meets the. requirement may not be.\u201d Williams, 7 Ark. App. at 155, 645 S.W.2d at 699.\nThe facts in United States v. Wood, 834 F.2d 1382 (8th Cir. 1987), were similar to those in Eubanks. Wood and Stanton were alleged co-conspirators and the District Court had permitted Stanton\u2019s wife, Mary, to testify that Stanton had told her that he was working for Wood by putting radios in boats used for drug smuggling. The Court said:\nWhether the statement was made in furtherance of the conspiracy is a close question. Mary Stanton testified that her husband told her that he was working for Wood installing radio equipment in boats \u201cused for marijuana.\u201d Although the statement refers to drugs, it doesn\u2019t appear that Michael Stanton was seeking to induce his wife to join the conspiracy. There is no evidence that Stanton\u2019s statement prompted action in furtherance of the conspiracy by either participant in the conversation. Stanton\u2019s statement did not identify the role of one conspirator to another, because Mary Stanton was not involved in the conspiracy. A more credible, albeit pedestrian, interpretation is that he was merely informing his wife about his activities. We hold that the statement was not in furtherance of the conspiracy, and therefore did not qualify for admission under Fed.R.Evid. 801(d)(2)(E).\n834 F.2d at 1385.\nAt trial, the State argued that Kenneth Clements\u2019s statements to his wife were in furtherance of the conspiracy because the statements were \u201cfor the purpose of covering his tracks.\u201d The State argued strenuously and repeatedly that the court had so ruled in the first McMillen trial and in the second McMillen trial and that it should so hold here. As the prosecutor argued:\nWe\u2019ve been through this twice before, and I ask the Court to hold in accordance with its previous ruling, which is someone who\u2019s involved in a conspiracy and has someone living with them and works with them, who answers the telephone and deals with people coming and going, must be aware of what that person is involved with; otherwise, the wife would trip that person up and put him flat on his back in jail. And, that\u2019s exactly why she had to be made aware of these things. It was in furtherance of the conspiracy.\nThe State makes essentially the same argument on appeal.\nThe facts in the case at bar cannot be successfully distinguished from those in Eubanks and Wood, and we find the reasoning of those decisions persuasive. We hold that the trial court\u2019s finding that statements made by Kenneth Clements to his wife Denise were \u201cin furtherance of a conspiracy\u201d was erroneous and that Denise Clements\u2019s testimony was therefore inadmissible as hearsay.\n3. ADMISSIBILITY OF APPELLANT\u2019S STATEMENTS\nAppellant argues that his statement was coerced by the prosecuting attorney\u2019s threat and should not have been admitted. Custodial statements are presumed to be involuntary, and the State has the burden of proving otherwise. A statement induced by fear or hope of reward is not voluntary. Sanders v. State, 305 Ark. 112, 805 S.W.2d 953 (1991). On appeal, we make an independent review of the totality of the circumstances, but will reverse only if the trial court\u2019s finding is clearly against a preponderance of the evidence. Porchia v. State, 306 Ark. 443, 815 S.W.2d 926 (1991).\nAppellant testified at the pretrial hearing regarding the circumstances of his giving a statement. The chief of police called appellant down to the station to talk to the state police investigators. Appellant described his contact with the prosecuting attorney as follows:\nA. Well, we sat down there and, uh, they said, \u201cWell, we need to ask you some questions. Before we do,\u201d said, uh, \u201cMr. Foster wants to tell you something,\u201d or wants to speak to you.\nQ. Okay. What did Mr. Foster tell you?\nA. Mr. Foster came in. He, uh, sat down there at Bobby\u2019s desk, and I believe he crossed his hands, and he said, uh, \u201cRandy,\u201d said, \u201cthis is the hardest thing I\u2019ve ever had to do.\u201d He said, \u201cI\u2019m going to charge you with capital felony murder or accessory to capital felony murder, if you don\u2019t give me a statement.\u201d\nQ. Did \u2014 was there anything said about the death penalty?\nA. Yes. He said, uh \u2014 he said, \u201cI\u2019m gonna\u2019charge you or \u2014 with accessory or accomplice to capital felony murder, and I\u2019m gonna\u2019 ask for the chair.\u201d I remember his saying, \u201cI\u2019m gonna\u2019 ask for the chair.\u201d\nQ. Why are you \u2014 why are you so \u2014 \u2022\nA. Because it scared me to death. I mean it\u2019s just \u2014 it\u2019s just like somebody says, well, I\u2019m fixing to blow your head off, you know.\nQ. Okay. Uh, what effect did Mr. Foster\u2019s statements have on you?\nA. Well, it was just \u2014 I don\u2019t know, I just was out of control. My \u2014 I just couldn\u2019t think of what \u2014 what was happening. I \u2014 all I could think of was my family, my job, just, you know, everything seemed to be \u2014 you know, it was going to be down the tube, you know. My\u2014\nQ. Did \u2014 I think I\u2019ve already asked you. Did you give Mr. Swesey and Mr. Williams and Mr. Howard a statement?\nA. Yes, I did.\nQ. Did you give them the statement as a result of what Mr. Foster had told you?\nA. Yes.\nAppellant\u2019s version of this exchange basically corroborated the earlier testimony of State Police Officer Howard, except for the statement attributed to the prosecutor about \u201casking for the chair.\u201d It is undisputed that Leach was advised of his rights under Miranda v. Arizona, 384 U.S. 436 (1966).\nIn examining the totality of the circumstances, the supreme court has said that the inquiry should be divided into two main components: the statement of the officer (in this case, the prosecutor) and the vulnerability of the defendant. See Sanders v. State, 305 Ark. 112, 805 S.W.2d 953 (1991); Williams v. State, 281 Ark. 91, 663 S.W.2d 700 (1983), cert. denied, 469 U.S. 980 (1984); Davis v. State, 275 Ark. 264, 630 S.W.2d 1 (1982).\nHere, the defendant was an experienced police officer. There was no contention that he was unable to understand his rights for any reason.\nNor does the nature of the statement by the prosecuting attorney require suppression. The circumstances of the case at bar are similar to those found in Tippitt v. State, 285 Ark. 294, 686 S.W.2d 420 (1985). There, Tippitt was a suspect in an aggravated robbery and attempted capital murder case. Two accomplices were charged with aggravated robbery and attempted capital murder. Investigating officers agreed not to charge Tippitt with attempted capital murder if he would give a statement. The court said:\nThe issue before us is whether the inculpatory custodial statement, given in exchange for a promise not to prosecute appellant for an additional crime, should have been suppressed. There is no dispute that the statement was given in exchange for the promise not to charge appellant with attempted capital murder. The Miranda warnings were given prior to the statement being made. Custodial statements are presumed involuntary and the state must overcome the presumption by a preponderance of the evidence. Statements given with hope of reward are not voluntary.\nUnder the facts and circumstances of this case, when considered in their totality, we think the trial court was correct in admitting the statement. The appellant struck a bargain, which was closely related to a plea bargain, and both sides kept their promises. Most likely the deal was a wise one for the appellant. In any event we can find no prejudicial error. [Citations omitted.]\nTippitt v. State, 285 Ark. at 295, 686 S.W.2d at 421; see also Williams v. State, 281 Ark. 91, 663 S.W.2d 700 (1983), cert. denied, 469 U.S. 980 (1984). We find no error in the court\u2019s denial of the motion to suppress the defendant\u2019s statement.\nAppellant also argues that it was error to allow Ollie Willborg, an investigator for the prosecuting attorney, to testify about comments made by appellant while he was awaiting bail and on another chance encounter at the courthouse. Appellant argues that the inculpatory nature of those statements compels the conclusion that, due to the coercive nature of the prosecutor\u2019s earlier statements, \u201cappellant did not possess sufficient mental freedom\u201d to confess or deny his participation in the crime. These statements were freely offered, and the circumstances do not display coercion any more than those surrounding the giving of the initial statement to the investigators.\n4. THE MOTION IN LIMINE\nAt trial the State moved in limine for an order prohibiting appellant from testifying about the prosecutor\u2019s offer to charge him with capital murder unless he gave a statement. The court granted the motion. This was error.\nIn Kagebein v. State, 254 Ark. 904, 496 S.W.2d 435 (1973), addressing a similar argument, the court said:\nThe purpose of our Denno hearing statute (Ark. Stats. 43-2105) is to prevent a jury from hearing a confession before the court determines that it has been voluntarily given. It is not intended to restrict evidence a jury may hear after a court determination of voluntariness has been made. The defendant still has the constitutional right to have his case heard on the merits by a jury, including the weight and credibility the jury might give to the voluntariness of the confession. Walker v. State, 253 Ark. 676, 488 S.W.2d 40 (1982); Lego v. Twomey, 404 U.S. 477, 30 L. Ed. 2d 618, 99 S.Ct. 619 (1972).\nAnd in Crane v. Kentucky, 476 U.S. 683 (1986), the United States Supreme Court stated:\nAs the Court noted in Jackson, because \u201cquestions of credibility, whether of a witness or of a confession, are for the jury,\u201d the requirement that the court make a pretrial voluntariness determination does not undercut the defendant\u2019s traditional prerogative to challenge the confession\u2019s reliability during the course of the trial.\nIndeed, stripped of the power to describe to the jury the circumstances that prompted his confession, the defendant is effectively disabled from answering the one question every rational juror needs answered: If the defendant is innocent, why did he previously admit his guilt?\n[ W]e have little trouble concluding on the facts of this case that the blanket exclusion of the proffered testimony about the circumstances of petitioner\u2019s confession deprived him of a fair trial. [Citations omitted.]\nThe record will not support the State\u2019s contention that appellant\u2019s counsel somehow invited the error.\n5. SEQUESTERED VOIR DIRE\nBefore trial, the court denied appellant\u2019s request for individual sequestered voir dire. Appellant argues that he was thereby inhibited from asking prospective jurors questions about their knowledge of related criminal litigation, and urges us to adopt \u00a7 3.4(a) of the Standards Relating to Fair Trial and Free Press promulgated by the American Bar Association Project on Standards for Criminal Justice. That section provides:\n(a) Method of examination. Whenever there is believed to be a significant possibility that individual talesmen will be ineligible to serve because of exposure to potentially prejudicial material, the examination of each juror with respect to his exposure shall take place outside the presence of other chosen and prospective jurors. An accurate record of this examination shall be kept, by court reporter or tape recording whenever possible. The questioning shall be conducted for the purpose of determining what the prospective juror has read and heard about the case and how his exposure has affected his attitude towards the trial, not to convince him that he would be derelict in his duty if he could not have cast aside any preconception he might have.\nAppellant concedes that the decision to grant or deny sequestered individual voir dire is left to the discretion of the trial court. Burnett v. State, 287 Ark. 158, 697 S.W.2d 95 (1985). He also concedes that reversal will not lie absent a showing of prejudice. See, e.g., Logan v. State, 300 Ark. 35, 776 S.W.2d 341 (1989). Because here, as in Logan, the record does not reflect the requisite prejudice, appellant urges us to adopt the ABA standard and overrule the supreme court\u2019s decisions in Logan; Heffernan v. State, 278 Ark. 325, 645 S.W.2d 666 (1983); and other supreme court cases stating the same principle. Despite appellant\u2019s contention to the contrary, we lack the authority to overrule decisions of the Arkansas Supreme Court. Huckabee v. State, 30 Ark. App. 82, 785 S.W.2d 223 (1990). It will be for the circuit court to decide whether, on retrial, sequestered voir dire is necessary.\n6. JURY INSTRUCTIONS\nAppellant also argues that it was error for the trial court to refuse to give a series of five requested jury instructions on conspiracy. These instructions were based on those given in other states and supported by language in some Arkansas cases, commentary to statutes, Corpus Juris Secundum, and a federal case. The trial court gave AMCI 707, the standard instruction on conspiracy, as well as appellant\u2019s requested instruction defining an \u201covert act.\u201d\nJust' because appellant\u2019s offered instructions contained correct statements of the law does not mean that it was error for the trial court to refuse to give them. Hardcastle v. State, 25 Ark. App. 157, 755 S.W.2d 228 (1988). It is not necessary to give a requested instruction if it is sufficiently covered by another instruction. Clark v. State, 15 Ark. App. 393, 695 S.W.2d 396 (1985). Non-model instructions are to be given only when the trial court finds that an AMCI instruction does not accurately state the law or is inapplicable. Campbell v. State, 294 Ark. 639, 746 S.W.2d 37 (1988). Because AMCI 707 accurately states the law and is applicable, the court did not err.\n7. CLOSING ARGUMENT\nOllie Willborg, the investigator employed by the prosecuting attorney\u2019s office, testified for the State. In closing argument the prosecutor said, \u201cI hope you looked into that man\u2019s [Willborg\u2019s] eyes. Y\u2019all don\u2019t know him like some of the rest of us do, but I hope that you looked into his eyes.\u201d Appellant objected on the basis that the prosecuting attorney was personally vouching for the credibility of the witness. We agree that the comment could be so construed. As such it was improper, see Harrison v. State, 276 Ark. 469, 637 S.W.2d 549 (1982), and should be avoided on retrial.\nOur conclusion is that the trial court erred in admitting the hearsay testimony of Denise Clements, and in prohibiting the appellant from testifying about the circumstances under which he gave his statement to the police. We remand the case to the circuit court for further proceedings in keeping with this opinion.\nReversed and remanded.\nDanielson and Mayfield, JJ., agree.", "type": "majority", "author": "John E. Jennings, Judge." } ], "attorneys": [ "Callis Childs, for appellant.", "Winston Bryant, Att\u2019y Gen., by: Sandy Moll, Asst. Att\u2019y Gen., for the appellee." ], "corrections": "", "head_matter": "Randy LEACH v. STATE of Arkansas\nCA CR 91-169\n831 S.W.2d 615\nCourt of Appeals of Arkansas Division I\nOpinion delivered May 13, 1992\n[Rehearing denied June 17, 1992.]\nCallis Childs, for appellant.\nWinston Bryant, Att\u2019y Gen., by: Sandy Moll, Asst. Att\u2019y Gen., for the appellee." }, "file_name": "0117-01", "first_page_order": 137, "last_page_order": 151 }