{ "id": 1900955, "name": "Nathaniel MITCHELL v. STATE of Arkansas", "name_abbreviation": "Mitchell v. State", "decision_date": "1991-09-23", "docket_number": "CR 91-44", "first_page": "464", "last_page": "474", "citations": [ { "type": "official", "cite": "306 Ark. 464" }, { "type": "parallel", "cite": "816 S.W.2d 566" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "290 Ark. 556", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1873777 ], "weight": 7, "year": 1986, "pin_cites": [ { "page": "558" }, { "page": "906" } ], "opinion_index": 0, "case_paths": [ "/ark/290/0556-01" ] }, { "cite": "287 Ark. 102", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1876577 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/ark/287/0102-01" ] }, { "cite": "286 Ark. 430", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8721866 ], "weight": 3, "year": 1985, "opinion_index": 0, "case_paths": [ "/ark/286/0430-01" ] }, { "cite": "275 Ark. 12", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1753675 ], "weight": 3, "year": 1982, "opinion_index": 0, "case_paths": [ "/ark/275/0012-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-10-101", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "pin_cites": [ { "parenthetical": "a" } ], "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 16-85-407", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "opinion_index": 0 }, { "cite": "299 Ark. 482", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1888366 ], "weight": 5, "year": 1989, "pin_cites": [ { "page": "489" }, { "page": "429" } ], "opinion_index": 0, "case_paths": [ "/ark/299/0482-01" ] }, { "cite": "475 U.S. 412", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204292 ], "weight": 8, "year": 1986, "pin_cites": [ { "page": "421" }, { "page": "421" }, { "page": "421" }, { "page": "422" }, { "page": "423" }, { "page": "421" } ], "opinion_index": 0, "case_paths": [ "/us/475/0412-01" ] }, { "cite": "479 U.S. 564", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6221261 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/us/479/0564-01" ] }, { "cite": "298 Ark. 611", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1889940 ], "weight": 10, "year": 1989, "pin_cites": [ { "page": "613" }, { "page": "126" }, { "page": "613" }, { "page": "126" }, { "page": "613-14" } ], "opinion_index": 0, "case_paths": [ "/ark/298/0611-01" ] }, { "cite": "384 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046400 ], "weight": 3, "year": 1966, "pin_cites": [ { "page": "444" } ], "opinion_index": 0, "case_paths": [ "/us/384/0436-01" ] }, { "cite": "475 U.S. 412", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204292 ], "year": 1986, "pin_cites": [ { "page": "432" } ], "opinion_index": 1, "case_paths": [ "/us/475/0412-01" ] } ], "analysis": { "cardinality": 786, "char_count": 16811, "ocr_confidence": 0.876, "pagerank": { "raw": 2.4777198859885453e-07, "percentile": 0.8072026593056197 }, "sha256": "3a12036f663846504bbe409f02083c0a73896799b549e637427f1fbcfbff5c7f", "simhash": "1:0b2cdc135104572c", "word_count": 2676 }, "last_updated": "2023-07-14T15:19:57.276738+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Glaze and Brown, JJ., concur.", "Glaze, J., joins." ], "parties": [ "Nathaniel MITCHELL v. STATE of Arkansas" ], "opinions": [ { "text": "Donald L. Corbin, Justice.\nA Jefferson County jury tried and convicted appellant, Nathaniel Mitchell, of two counts of first-degree murder and one count of attempted capital felony murder. The jury sentenced appellant to forty years imprisonment for each of the murder convictions, and thirty years imprisonment for the attempted capital felony murder count. Appellant asserts four grounds for reversal of his conviction. We affirm on each of the four grounds.\nI.\nCUSTODIAL STATEMENT\nAppellant\u2019s primary allegation of error is that the trial court erred in denying his pre-trial motion to suppress his custodial confession. He presents two theories in support of his suppression argument; First, he argues that the failure of the Jefferson County Sheriffs Department to inform appellant that he had legal representation or to follow counsel\u2019s instructions regarding appellant\u2019s interrogation invalidated appellant\u2019s confession. Second, appellant argues that the trial court erred in disregarding his testimony at the suppression hearing that the police denied his request to use a telephone to arrange for legal representation. We disagree with both of appellant\u2019s arguments.\nOn August 25, 1989, police discovered the bodies of two gunshot victims, Charles Goodloe and Henry Harris, at the Altheimer Recreation Club in Jefferson County. Later that morning, police received information that appellant had killed Goodloe and Harris, and wounded another victim, E.L. Surratt, during a shooting incident the previous evening. Based on this information, the police arrested appellant at his residence in Stuttgart shortly after 4:00 a.m.\nThe police informed appellant of his Miranda rights at the time of his arrest. At approximately 7:00 a.m., the police again informed appellant of his Miranda rights. Following the second recitation of the Miranda rights, the police conducted a four hour interrogation session with appellant. At the\u2019conclusion of the interrogation, appellant gave police a signed confession admitting his involvement in the shootings.\nWhile appellant was in custody, his family had retained counsel for appellant. During appellant\u2019s interrogation, counsel repeatedly telephoned the sheriffs department attempting to gain information about appellant\u2019s case. The police never told appellant of counsel\u2019s efforts. When counsel failed to contact appellant, counsel instructed the police to cease questioning of appellant. The police ignored counsel\u2019s instructions, and appellant did not speak to counsel until after appellant confessed to the crime. Appellant argues that the conduct of the police during the interrogation process violated his rights under Miranda v. Arizona, 384 U.S. 436 (1966), by denying him access to an attorney. We disagree.\nA suspect\u2019s waiver of his Fifth Amendment rights is valid only if it is made \u201cvoluntarily, knowingly and intelligently.\u201d Miranda, supra, 384 U.S. at 444. The inquiry into the validity of a waiver has two distinct dimensions. Burin v. State, 298 Ark. 611, 770 S.W.2d 125 (1989) citing Colorado v. Spring, 479 U.S. 564 (1987) and Moran v. Burbine, 475 U.S. 412, 421 (1986). First, the waiver must be \u201cvoluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.\u201d Moran, 475 U.S. at 421; Burin, 298 Ark. at 613, 770 S.W.2d at 126. Second, \u201cthe waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.\u201d Moran, 475 U.S. at 421; Burin, 298 Ark. at 613, 770 S.W.2d at 126.\nAppellant does not explicitly challenge either prong of the waiver inquiry. Instead, he argues that the trial court should have suppressed his confession because the conduct of the police denied counsel access to appellant. We disagree based on the Supreme Court\u2019s decision in Moran, supra.\nIn Moran, the Supreme Court held that the failure of the police to follow counsel\u2019s instructions or to inform the suspect of counsel\u2019s efforts to reach him does not affect the validity of an otherwise proper waiver. Events occurring without a suspect\u2019s knowledge do not implicate the validity of a waiver because such events \u201ccan have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right.\u201d Id. at 422.\nWe have followed Morans interpretation of the waiver requirements. See Burin, supra, In the instant case, appellant did not know of counsel\u2019s efforts on his behalf. Consequently, we find that the police treatment of counsel is irrelevant to the validity of appellant\u2019s waiver.\nAppellant attempts to distinguish the instant case from Moran by alleging that the Jefferson County police conspired to deny him access to counsel. We also find this distinction irrelevant to the validity of appellant\u2019s waiver. We agree with the Supreme Court\u2019s assessment of police culpability in Moran:\n[W]hether intentional or inadvertent, the state of mind of the police is irrelevant to the question of the intelligence and voluntariness of respondent\u2019s election to abandon his rights. Although highly inappropriate, even deliberate deception of an attorney could not possibly affect a suspect\u2019s decision to waive his Miranda rights unless he were at least aware of the incident.\nMoran, supra, 475 U.S. at 423.\nAt the suppression hearing, the trial court found that appellant understood his rights and voluntarily waived them. Only if the \u201c \u2018totality of the circumstances surrounding the interrogation\u2019 reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.\u201d Burin, 298 Ark. at 613-14, 770 S.W.2d at 126 quoting Moran, 475 U.S. at 421. We independently examine the totality of the circumstances to determine whether the trial court\u2019s ruling was clearly erroneous. Branscomb v. State, 299 Ark. 482, 774 S.W.2d 426 (1989); Burin, supra.\nAppellant argues that the trial court should have suppressed his confession on the basis of his testimony at the suppression hearing. At the suppression hearing, appellant testified that the police denied his request to use a telephone to arrange for legal representation. He further testified that the police ignored his request to cease questioning. However, the testimonies of several police officers contradicted appellant\u2019s assertions. They testified that appellant never asked them to cease the interrogation or indicated that he wished to consult an attorney. The police also testified that appellant indicated he understood his rights and waived them.\nThe credibility of witnesses who testify at a suppression hearing concerning the circumstances surrounding the defendant\u2019s in-custodial statement is for the trial judge to determine. Branscomb, supra, 299 Ark. at 489,774 S.W.2d at 429. Based on our independent review of the totality of the circumstances we cannot say that the determination is clearly erroneous.\nAccordingly, we affirm the trial court\u2019s decision allowing the state to introduce appellant\u2019s confession into evidence.\nII.\nAMENDED INFORMATION\nFor his second allegation of error, appellant argues that the trial court erred in allowing the state to amend its information three days prior to trial. On August 28, 1989, the state charged appellant with one count of premeditated and deliberated capital murder and one count of attempted capital murder. On August 17, 1990, three days prior to trial, the state amended the information to assert an additional count of capital murder. Appellant argues that the additional count violates the statutory prohibition of amendments changing the nature or degree of the crime charged. Ark. Code Ann. \u00a7 16-85-407 (1987). We disagree.\nThe legislature\u2019s 1989 revision of the homicide statutes authorized the state\u2019s assertion of the additional murder count. The premeditated and deliberated capital murder statute, Ark. Code Ann. \u00a7 5-10-101 (a) (4) (Supp. 1989), now provides:\n(a) A person commits capital murder if:\nWith the premeditated and deliberated purpose of causing the death of another person, he causes the death of any person[.]\nPrior to 1989, each premeditated and deliberated capital murder count required two victims. Ark. Code Ann. \u00a7 5-10-101 (1987).\nAppellant does not dispute the fact that the new statute was in effect on the date of the alleged murders. We have held that the state may amend an information to conform to the proof so long as the amendment does not change the nature or degree of the offense charged. Jones v. State, 275 Ark. 12, 627 S.W.2d 6 (1982). The mere fact that an amendment authorizes a more severe penalty does not change the nature or degree of the offense. Wilson v. State, 286 Ark. 430, 692 S.W.2d 620 (1985). As the state points out, the only effect of the amendment was to split the original single count of capital murder into two counts of capital murder under the new statutory definition of that offense. We consider this amendment to be a matter of form that does not change the nature of the offense charged.\nFurthermore, appellant failed to request a continuance when he was put on notice that the state planned to amend the information. We have previously held that we will not presume prejudice when an appellant fails to move for a continuance after he is put on notice that the state plans to amend an information. Harrisons v. State, 287 Ark. 102, 696 S.W.2d 501 (1985); Wilson, supra; Jones, supra. In this case, appellant knew of the state\u2019s plan to amend three days prior to trial. Since he did not move for a continuance, we find no prejudice in the trial court\u2019s allowance of the amendment.\nIII.\nCHARACTER WITNESSES\nAppellant\u2019s third allegation of error asserts that the trial court erred in excluding the testimony of six character witnesses for the defense. The trial court granted the state\u2019s motion to exclude the testimony because the defense failed to comply with the state\u2019s discovery request for the names and addresses of the defense witnesses that would testify at trial. We affirm.\nArk. R. Crim. P. 18.3 provides the applicable discovery rule in criminal cases:\nSubject to constitutional limitations, the prosecuting attorney shall, upon request, be informed as soon as practicable before trial of the nature of any defense which defense counsel intends to use at trial and the names and addresses of persons whom defense counsel intends to call as witnesses in support thereof.\nThe state filed its discovery request on August 30, 1989. On October 10, 1989, the trial court entered an order directing appellant to respond to the state\u2019s request within ten days prior to trial. Appellant failed to comply. He argues that the trial court erred in sanctioning him for his noncompliance because the substance of the witnesses\u2019 testimony would be limited to statements concerning appellant\u2019s truthfulness and veracity.\nRule 18.3 could not be clearer. We have held that the rule applies with equal force to testimony offered in support of a general denial defense and testimony offered to support an affirmative defense. Weaver v. State, 290 Ark. 556, 720 S.W.2d 905 (1986). Discovery in criminal cases, within constitutional limitations, must be a two way street. Id. at 558, 720 S.W.2d at 906. This interpretation promotes fairness by allowing both sides the opportunity to full pretrial preparation, preventing surprise at trial, and avoiding unnecessary delays during the trial. Id. In the instant case, the trial court found that appellant\u2019s failure to comply with the discovery order prejudiced the state. Without the names and addresses of appellant\u2019s witnesses, the state could not exercise its right to obtain information questioning the witnesses\u2019 credibility. We find that the trial court\u2019s exclusion of appellant\u2019s character witnesses was a proper sanction for appellant\u2019s blatant disregard of the discovery rule.\nWe reject appellant\u2019s attempt to characterize his witnesses as rebuttal witnesses. He attempts this characterization in an effort to bring his witnesses within the narrow exception to Rule 18.3 that we recognized in Weaver, supra. We noted that genuine rebuttal witnesses need not be disclosed before trial because neither the defense nor the state necessarily knows in advance of the need for such rebuttal testimony. Id. In this case, appellant planned to use the witnesses in his case-in-chief. Since he knew in advance of the need for the witnesses\u2019 testimony, the trial court did not err in refusing to give appellant the benefit of the rebuttal witness exception to the discovery rule.\nIV.\nJURY INSTRUCTIONS\nFor his final allegation of error, appellant argues that the trial court erred in instructing the jury on the capital murder charge. The trial judge gave the jury the following instruction on the capital murder charge:\nIn count one, that with a premeditated and deliberate purpose of causing the death of Charles Goodloe; . . . Nathaniel Mitchell caused the death of Henry Harris.\nThe judge gave an identical instruction on the elements of capital murder with respect to the killing of Henry Harris.\nAppellant argues that in order to satisfy the elements of capital murder, the state must show that the defendant acted with \u201can intent to cause the death of A and in so acting, caused the death of B.\u201d We disagree based on the common sense construction of the applicable statute, section 5-10-101 (a)(4). The statutory phrase \u201canother person\u201d means a person other than the defendant himself. We find no error in the trial court\u2019s instruction on capital murder.\nAppellant also asserts that the trial court erred in instructing the jury on the definition of attempted premeditated and deliberated capital murder. Specifically, appellant argues that there was no evidence to support an attempt conviction. Appellant\u2019s argument is without merit. The victim of the attempted murder testified that appellant deliberately shot him through a car window. This testimony provided a basis in the evidence for the trial court\u2019s instruction on attempted capital murder. Accordingly, we affirm.\nGlaze and Brown, JJ., concur.", "type": "majority", "author": "Donald L. Corbin, Justice." }, { "text": "Robert L. Brown, Justice,\nconcurring. I concur with the majority opinion and find no violation of the appellant\u2019s constitutional rights under these facts. This case, nevertheless, raises a concern about the access of counsel to an accused in custody.\nStatements by an accused must, first, be knowingly and intelligently made and, second, be made voluntarily. The appellant signed a document in this case evidencing that he knew what he was doing in making the statement and was doing so voluntarily. No doubt, in many cases the accused will make a statement to the police because it is obvious the authorities have a strong case against him or he wants to rid himself of the burden of the crime or he desires to curry favor with investigating officers and, incidentally, to receive some consideration for his efforts at sentencing. Equally obvious is the fact that an accused who learns that an attorney has been retained and is trying to see him may well cease further disclosures to police detectives.\nAs the majority underscores, the emphasis must be placed on the accused and his voluntary and intelligent waiver. However, there is something vaguely chilling about an allegation that an accused was kept incommunicado from counsel for a period of time. Here, I hasten to add, the time was not extensive, since counsel did not make his first telephone call until 10:26 a.m., and the statement was signed minutes later at 10:51 a.m. Further, the facts are inconclusive about whether the department was purposefully delaying counsel contact.\nPolice officers are well within their rights in limiting access to the accused during certain times such as a sensitive point in interrogations and a line-up when counsel has been waived. Surely, law enforcement does not have to \u201cdrop everything\u201d when newly retained counsel calls. At some point, however, counsel must be given access, even though a waiver of counsel has been signed by the accused. That precise time limit is difficult to determine precisely, and the facts of each case must govern accessibility. Any hint, though, that detectives are rushing to finalize a statement while keeping counsel at bay should be avoided. Here, the limit on attorney access was not egregious enough to warrant an exclusion of the statement from evidence. As the U.S. Supreme Court warns, at some point it could be. See Moran v. Burbine, 475 U.S. 412, 432 (1986).\nGlaze, J., joins.", "type": "concurrence", "author": "Robert L. Brown, Justice," } ], "attorneys": [ "Green and Henry, by: J.W. Green, Jr., and Dennis R. Molock for appellant.", "Winston Bryant, Att\u2019y Gen., by: Clint Miller, Senior Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Nathaniel MITCHELL v. STATE of Arkansas\nCR 91-44\n816 S.W.2d 566\nSupreme Court of Arkansas\nOpinion delivered September 23, 1991\nGreen and Henry, by: J.W. Green, Jr., and Dennis R. Molock for appellant.\nWinston Bryant, Att\u2019y Gen., by: Clint Miller, Senior Asst. Att\u2019y Gen., for appellee." }, "file_name": "0464-01", "first_page_order": 516, "last_page_order": 526 }