{ "id": 1900959, "name": "Michael Montez PORCHIA v. STATE of Arkansas", "name_abbreviation": "Porchia v. State", "decision_date": "1991-09-23", "docket_number": "CR 91-63", "first_page": "443", "last_page": "447", "citations": [ { "type": "official", "cite": "306 Ark. 443" }, { "type": "parallel", "cite": "815 S.W.2d 926" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "575 S.W.2d 155", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1668944, 1668834 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ark/264/0791-01", "/ark/264/0789-01" ] }, { "cite": "264 Ark. 789", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1668834 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ark/264/0789-01" ] }, { "cite": "300 Ark. 122", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1886791 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/300/0122-01" ] }, { "cite": "303 Ark. 637", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1882807 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/303/0637-01" ] }, { "cite": "303 Ark. 233", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1882703 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/303/0233-01" ] }, { "cite": "Ark. Code Ann. \u00a7\u00a7 5-10-104", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "pin_cites": [ { "page": "(a)(3) and (4)" } ], "opinion_index": 0 }, { "cite": "295 Ark. 276", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1893809 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/295/0276-01" ] }, { "cite": "286 Ark. 247", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8719549 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/ark/286/0247-01" ] }, { "cite": "733 S.W.2d 827", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1989, "opinion_index": 0 }, { "cite": "299 Ark. 474", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1888384 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/299/0474-01" ] } ], "analysis": { "cardinality": 441, "char_count": 6877, "ocr_confidence": 0.869, "pagerank": { "raw": 4.610484075962307e-07, "percentile": 0.9261974346766935 }, "sha256": "8bcd89946fc1a3a0288681323a85df6e66cbce5370b26cc997d4ba09bf952187", "simhash": "1:363e40015e073bf6", "word_count": 1136 }, "last_updated": "2023-07-14T15:19:57.276738+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Michael Montez PORCHIA v. STATE of Arkansas" ], "opinions": [ { "text": "Steele Hays, Justice.\nOn the evening of April 26, 1990, Art\u2019s Liquor Store on Asher Avenue, Little Rock, was robbed. Two clerks were murdered. Appellant, Michael Porchia, was one of five persons charged with capital murder and aggravated robbery. Appellant moved to sever his trial from the co-defendants and the motion was granted. Appellant also moved to suppress a custodial statement. Following an omnibus hearing the motion to suppress was denied and the state waived the death penalty.\nAppellant was tried by a jury on December 4, 1990, and convicted of aggravated robbery, theft of property and two counts of second degree murder. The court found appellant to be a habitual offender and the jury then sentenced appellant to twenty-five years on each count of second degree murder, forty-five years for the aggravated robbery and seventeen years for the theft of property.\nAppellant now brings this appeal, making two arguments for reversal; first, that the trial court erred in denying his motion to suppress the custodial statement in which he implicated himself and his co-defendants, and, second, in refusing to instruct on a lesser included offense.\nI\nAt the suppression hearing, appellant testified he did not make the statement to police, that he could not have given any statement voluntarily or knowingly due to heavy drinking prior to the time he spoke with the police, nor did he waive his Miranda rights. On appeal appellant argues that under the facts in his case, the trial court erred in denying suppression. There is no merit to appellant\u2019s contention.\nCustodial statements are presumed to be involuntary and the state has the burden of proving otherwise. This court makes an independent review of the totality of the circumstances and will reverse only if the trial court\u2019s finding is clearly against the preponderance of the evidence. Shaw v. State, 299 Ark. 474, 733 S.W.2d 827 (1989). The credibility of the witnesses who testify to the circumstances surrounding the defendant\u2019s custodial statement is for the trial court to determine. Smith v. State, 286 Ark. 247, 691 S.W.2d 154 (1985).\nThe factors to consider for both the voluntariness of the waiver and the statement are essentially the same. They include: age, education and intelligence of the accused, length of detention, repeated or prolonged questioning, the use of mental or physical punishment and the advice or lack of advice of constitutional rights. Shaw v. State, supra.\nThis case resembles McDougald v. State, 295 Ark. 276, 748 S.W.2d 340 (1988), where the appellant had also claimed he did not voluntarily or knowingly waive his rights as he was under the influence of drugs and alcohol at the time. We cited previous cases where we have stated that the fact that a defendant may have been under the influence of drugs or alcohol at the time of his statement will not of itself invalidate his confession, but will only go to the weight accorded it. And, whether an accused had sufficient capacity to waive his constitutional rights or was too incapacitated due to drugs or alcohol to make an intelligent waiver has remained a question of fact to be resolved by the trial court. See McDougald v. State, supra.\nThe essence of appellant\u2019s proof, which included the testimony of a girlfriend and uncle of the appellant, was that appellant had consumed large quantities of alcohol and had smoked marijuana on the day he surrendered to police. Appellant\u2019s witnesses testified to his drinking that day and further stated that his speech was affected, he smelled of alcohol and needed help to stand up. Appellant testified he was intoxicated at the time he surrendered himself to police, that he was threatened with the death penalty by officers and that he never gave a statement to the police. He also denied being told he had a right to have an attorney present and denied the initials on the rights waiver form were his.\nThe state presented evidence from Detective Vince Mayer and Sergeant Carl Beadle. Both testified that appellant was advised of his Miranda rights, that he waived them and made a statement incriminating himself. Both stated that appellant did not smell of alcohol or otherwise exhibit signs of intoxication. Mayer testified that neither he nor Sergeant Beadle offered any promises or inducements to obtain a statement, nor did they coerce or threaten appellant in any way. He further stated that appellant signed the statement three times in his presence, and that in his opinion appellant made the statement voluntarily. Beadle testified that in his opinion, appellant understood his rights.\nAppellant told the officers he was seventeen years old, had attended school through the eleventh grade, and had a G.E.D. The officers testified that they did not see any sign that appellant had been drinking when he was advised of his rights and chose to give his statement.\nThe basic points of any contention in this case are matters of credibility which are left to the trial court. We cannot say under the totality of the circumstances that the findings were against the preponderance of the evidence.\nII\nAs his second point for reversal appellant argues the trial court erred in refusing to instruct the jury on a lesser included offense. Appellant contends the jury was instructed on capital felony murder, first degree felony murder and second degree murder as well as aggravated robbery, theft of property and accomplice liability. Appellant also requested two instructions on manslaughter based on Ark. Code Ann. \u00a7\u00a7 5-10-104(a)(3) and (4) (1987), but the court refused and appellant maintains this was error.\nWe decline to reach this question on the basis of Ark. Sup. Ct. R. 9. While appellant did abstract the two instructions he requested, none of the other instructions given were abstracted, and we have no way of knowing from the abstract what instructions were actually given. Obviously, when addressing a lesser included offense argument by appellant we must have the other instructions before us in order to make a proper review of the trial court\u2019s action.\nIt is fundamental that the record on appeal is confined to that which is abstracted. Harris v. State, 303 Ark. 233, 795 S.W.2d 55 (1990). A failure to abstract a critical document precludes the court from considering issues concerning it. Hudson v. State, 303 Ark. 637, 799 S.W.2d 529 (1991). Nor can the record be contradicted or supplemented by statements made in the briefs. Bice v. Hartford Acc. & Indem. Co., 300 Ark. 122, 777 S.W.2d 213 (1989); Bridger v. State, 264 Ark. 789, 575 S.W.2d 155 (1979).\nAffirmed.", "type": "majority", "author": "Steele Hays, Justice." } ], "attorneys": [ "Thomas J. O\u2019Hern, for appellant.", "Winston Bryant, Att\u2019y Gen., Catherine Templeton, Ass\u2019t Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Michael Montez PORCHIA v. STATE of Arkansas\nCR 91-63\n815 S.W.2d 926\nSupreme Court of Arkansas\nOpinion delivered September 23, 1991\n[Rehearing denied October 28, 1991.]\nThomas J. O\u2019Hern, for appellant.\nWinston Bryant, Att\u2019y Gen., Catherine Templeton, Ass\u2019t Att\u2019y Gen., for appellee." }, "file_name": "0443-01", "first_page_order": 495, "last_page_order": 499 }