{ "id": 1453672, "name": "Sherman NOBLE v. STATE of Arkansas", "name_abbreviation": "Noble v. State", "decision_date": "1995-02-13", "docket_number": "CR 94-572", "first_page": "407", "last_page": "420", "citations": [ { "type": "official", "cite": "319 Ark. 407" }, { "type": "parallel", "cite": "892 S.W.2d 477" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "289 Ark. 130", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1875452 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ark/289/0130-01" ] }, { "cite": "112 S. Ct. 161", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1991, "opinion_index": 0 }, { "cite": "924 F.2d 813", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10544587 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/f2d/924/0813-01" ] }, { "cite": "778 F.2d 380", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1526961 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/f2d/778/0380-01" ] }, { "cite": "835 F.2d 92", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10543594 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/f2d/835/0092-01" ] }, { "cite": "479 U.S. 989", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6494659, 6495432, 6494280, 6495080, 6495245, 6494990, 6495597, 6494449, 6495506, 6494205, 6494775, 6494552, 6494138, 6494363, 6494877, 6495327 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/us/479/0989-07", "/us/479/0989-14", "/us/479/0989-03", "/us/479/0989-11", "/us/479/0989-12", "/us/479/0989-10", "/us/479/0989-16", "/us/479/0989-05", "/us/479/0989-15", "/us/479/0989-02", "/us/479/0989-08", "/us/479/0989-06", "/us/479/0989-01", "/us/479/0989-04", "/us/479/0989-09", "/us/479/0989-13" ] }, { "cite": "796 F.2d 598", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1620188 ], "weight": 3, "year": 1986, "opinion_index": 0, "case_paths": [ "/f2d/796/0598-01" ] }, { "cite": "430 U.S. 387", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12124816 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/us/430/0387-01" ] }, { "cite": "440 U.S. 911", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6208641, 6208901, 6208391, 6207692, 6207918, 6209872, 6209138, 6207327, 6209627, 6209372, 6208159 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/us/440/0911-06", "/us/440/0911-07", "/us/440/0911-05", "/us/440/0911-02", "/us/440/0911-03", "/us/440/0911-11", "/us/440/0911-08", "/us/440/0911-01", "/us/440/0911-10", "/us/440/0911-09", "/us/440/0911-04" ] }, { "cite": "263 Ark. 739", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1672601 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/ark/263/0739-01" ] }, { "cite": "288 Ark. 118", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8717844 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ark/288/0118-01" ] }, { "cite": "317 Ark. 555", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1443730 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/317/0555-01" ] }, { "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": "311 Ark. 398", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1897012 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/311/0398-01" ] }, { "cite": "309 Ark. 235", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1906066 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/309/0235-01" ] }, { "cite": "475 U.S. 412", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204292 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/us/475/0412-01" ] }, { "cite": "305 Ark. 112", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1916754 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/305/0112-01" ] }, { "cite": "284 Ark. 478", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1878679 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/ark/284/0478-01" ] }, { "cite": "315 Ark. 504", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1910495 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/315/0504-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-89-107", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "pin_cites": [ { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "384 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046400 ], "year": 1966, "pin_cites": [ { "page": "467" } ], "opinion_index": 0, "case_paths": [ "/us/384/0436-01" ] }, { "cite": "303 Ark. 1", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1882760 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/303/0001-01" ] }, { "cite": "305 Ark. 180", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1916831 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/305/0180-01" ] }, { "cite": "287 Ark. 124", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1876582 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/ark/287/0124-01" ] }, { "cite": "318 Ark. 25", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1455952 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/318/0025-01" ] }, { "cite": "294 Ark. 379", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1895803 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/294/0379-01" ] }, { "cite": "469 U.S. 387", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11959535 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/us/469/0387-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 4, "year": 1984, "pin_cites": [ { "page": "687" }, { "page": "690" }, { "page": "691-2" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "862 S.W.2d 234", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1912816, 1912793 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/314/0240-01", "/ark/314/0241-01" ] }, { "cite": "314 Ark. 240", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1912816 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/314/0240-01" ] } ], "analysis": { "cardinality": 1108, "char_count": 24229, "ocr_confidence": 0.879, "pagerank": { "raw": 2.60867006409048e-07, "percentile": 0.8202279360688596 }, "sha256": "1e2c2d95ac85ec54bad2ab6699e1e8f79c248ea124fccdb5d3915f8a31529805", "simhash": "1:f364a972f937ffdb", "word_count": 4038 }, "last_updated": "2023-07-14T15:29:57.133828+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Sherman NOBLE v. STATE of Arkansas" ], "opinions": [ { "text": "Jack Holt, Jr., Chief Justice.\nThe present appeal is from a denial of post-conviction relief pursuant to Ark. R. Crim. R 37.1 in a case previously entertained on appeal and dismissed by this court in Noble v. State, 314 Ark. 240, 862 S.W.2d 234 (1993). In that appeal, we held that the appellant, Sherman Noble, who had entered a conditional guilty plea to a capital-felony murder charge, had failed to adhere to the requirements of Ark. R. Crim. P. 24.3(b) regarding both the consent of the trial court and the prosecutor and the reservation in writing of his right to appeal.\nIn the present Rule 37 appeal, Noble contends that, contrary to the circuit court\u2019s finding, he received ineffective assistance of counsel at the trial level and On appeal as a result of the trial counsel\u2019s failure to preserve a written memorial of the right to pursue a conditional appeal under Ark. R. Crim. P. 24.3(b). More particularly, he asserts that, while the circuit court was correct in finding that he had established cause to complain under the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984), the court erred in finding that he had not shown prejudice due to counsel\u2019s wrongdoing. We disagree and affirm the judgment of the trial court.\nFacts\nIt was unnecessary to set forth the facts in our opinion in Noble\u2019s initial appeal. However, in order fully to comprehend the scope of this review, we must now examine the circumstances and proceedings leading to Noble\u2019s claim.\nOn March 21, 1992, Sherman Noble, a Little Rock resident, and two companions attempted to steal a BMW automobile from Tresia Jester, who was parked by a pay telephone at a service station in Pine Bluff. As Ms. Jester tried to leave in the car, Noble fired a sawed-off shotgun and killed her. Afterward, Noble left the other two men and returned to Little Rock.\nThe Pine Bluff Police Department received information about Noble\u2019s identity and location in Little Rock. On April 11, 1992, three Pine Bluff officers joined law enforcement authorities in Little Rock and one of the murder suspects, already in custody, for surveillance of a house where Noble was believed to be residing. As Noble left the house with another suspect in a pick-up truck, the third suspect positively identified him for the police. The officers followed the truck to a parking lot nearby, where both of the occupants were taken into custody. Each of the three suspects was placed in a separate facility, and a Pine Bluff police car transported Noble to Pine Bluff. Meanwhile, officers obtained a statement from one of the other suspects that incriminated Noble.\nAfter arriving at the Pine Bluff Police Department, Noble was questioned at some length. At first, he denied having been in Pine Bluff on the night of March 21, 1992. Subsequently, he gave a statement at 5:06 p.m., indicating that he had been present at the time of the shooting but had not fired the fatal shot. Instead, he said, \u201cthe gun went off.\u201d The statement was transcribed by Detective Sergeant James Bacon and signed by Noble.\nDissatisfied with his response, the officers sought to obtain another statement and transported Noble to the local Arkansas State Police Headquarters for a polygraph examination. There, he was interviewed by Investigator John Howell, a polygraph examiner. The polygraph examination, however, was never administered. Instead, after a conversation with Investigator Howell, Noble asked for a piece of paper and wrote a statement admitting that, when he and his friends spotted Ms. Jester\u2019s car:\nI jump out car drunk with a gun that was not suppose to have any bullets in it he [\u201cVeno,\u201d a companion] went to one side and I went to the other the woman got scared and tried to pull off but the tip of the gun was in the window and she pull off that jerk the gun because all at same time she was letting her window up and fired and that\u2019s how it happen and I\u2019m sorry today that happen but also ready to do almost any thing or punishment given.\nThe time recorded on the rights form was 8:16 p.m. on April 11, 1992.\nOn April 14, 1992, the State filed an information in Jefferson County Circuit Court charging Noble and his two companions with capital felony murder. Noble filed a motion on June 4, 1992, to suppress the in-custodial statements. The circuit court held an evidentiary hearing on August 18, 1992, in connection with the motion to suppress.\nAt the suppression hearing, Detective Lieutenant Mack Cook of the Pine Bluff Police Department testified that he read the \u201cStandard Rights Form\u201d to Noble at 5:06 p.m. on April 11, 1992, just before the first statement was transcribed by Sergeant Bacon. He explained to Noble why he was in custody and what the charges were. Lieutenant Cook participated in the questioning and noted that Noble never requested an attorney.\nAfter the completion of the initial interrogation, the officers asked Noble if he would be willing to go to State Police Headquarters for a polygraph examination. Noble stated that he would but that he wanted to phone his mother in Forrest City first. He was allowed to make the call and eat dinner, after which Lieutenant Cook\u2019s involvement with the process ended.\nDetective Rick Hill was present during the entire interview in Pine Bluff and confirmed Lieutenant Cook\u2019s testimony that Noble had not requested an attorney but said he would be willing to take a polygraph test after speaking with his mother. When the phone conversation ended, according to Detective Hill, Noble indicated that he was ready to continue the interview. Although Detective Hill accompanied Noble to State Police Headquarters, he was not present during the interview with Investigator Howell.\nDetective Sergeant James Bacon testified that the officers \u201cknew we were going to be given a false statement from the start when we talked to Mr. Noble.\u201d He stated that, prior to the taking of the first statement, he retrieved photographs of Ms. Jester and handed them to Lieutenant Cook, who showed them to Noble. During the interview, Sergeant Bacon said, Noble brought up the subject of the Christian faith. According to Sergeant Bacon, he told Noble that, in his own belief as a Christian, \u201cit did not matter who judged him on earth as long as he was right with the man upstairs.\u201d\nSergeant Bacon also noted that Noble never asked for an attorney and never sought to stop the interrogation. After the first statement was given, Sergeant Bacon said, Noble agreed to speak with State Police Investigator Howell, requesting only that he be allowed to speak with his mother before going. Sergeant Bacon then dialed the number.\nInvestigator John Howell of the Arkansas State Police, a polygraph examiner, testified that he met with Noble in the C.I.D. office at about 8:15 p.m. on April 11, 1992. He read the waiver of rights form to Noble, who signed the document after indicating that he did not want a lawyer and had not been subjected to promises, threats, pressure, or coercion.\nAt that point, Investigator Howell began discussing the polygraph examination with Noble. In a conversation lasting ten or fifteen minutes, he spoke to him about his Roman Catholic faith and the importance of telling the truth. Investigator Howell also emphasized that, with the aid of the test, \u201cI will know ... for a fact, whether or not . . . you fired the shot.\u201d After about ten or fifteen minutes of what Investigator Howell described as a \u201cvery casual\u201d conversation, Noble said, \u201cI want to tell you the truth.\u201d He then wrote his second, inculpatory statement.\nNoble\u2019s testimony at the hearing was at some variance with that of the police officers. Noble recounted that when the photographs of Ms. Jester were produced he stated, \u201cMan, you said I can stop my questions at any time,\u201d and \u201cI just stopped.\u201d He claimed that Sergeant Bacon began talking to him about his religious background and said, \u201cThe truth will get you out. The truth will set you free.\u201d\nThe officers, said Noble, alternately told him he was lying and declared that they believed him, saying they would \u201ctake you down to the polygraph tester to make sure you are telling the truth.\u201d Noble testified that the officers continued to press him on the need to submit to a polygraph examination. He asserted that the officers never advised him that he didn\u2019t have to take the test.\nAccording to Noble, he did not agree to take the polygraph examination after talking to his mother but instead indicated that he wanted to see what she thought about it, \u201cand then I\u2019ll come back and let you know.\u201d His mother admonished him to wait until she could come to Pine Bluff on the next day. When he got off the phone, Noble said, Sergeant Bacon \u201ccussed me out,\u201d saying, \u201cNo, you\u2019re bullshitting us. We let you use the phone and you are still bullshitting us. You told me you was going to take the polygraph test after you talked to your mother.\u201d Noble testified that he then told the detective, \u201cI ain\u2019t going to take the test. I\u2019m just going to wait until she get up here.\u201d At that, Noble averred, Sergeant Bacon cursed at him again, though not in a loud voice, \u201cand I looked around the room and it was something like six or seven of them. I said, \u2018Man, forget it. I\u2019ll go on and take it.\u2019 \u201d\nWhen Investigator Howell interrogated him, Noble said, he placed great emphasis on his Catholic faith and the importance of telling the truth. Noble stated that Investigator Howell stressed that, once he was connected to the polygraph machine, he would \u201cknow for sure\u201d if he were telling the truth. As Investigator Howell continued to bring up \u201cthis religious thing\u201d and began talking about confessing sins to God, Noble was, by his own account, ready to write his statement.\nNoble admitted that he never requested to speak to an attorney. He acknowledged having had his rights read to him and having initialed the rights form. He stated that he had graduated from high school and had briefly attended college and business school. Noble admitted having been arrested twice, for possession and delivery of a controlled substance and burglary and theft of property.\nAfter hearing the testimony, the circuit court found that the custodial statements were given freely and voluntarily. A conditional guilty plea was entered on October 25, 1992, and Noble was sentenced to life imprisonment without parole. He attempted to pursue a direct appeal to this court under Ark. R. Crim. P. 24.3(b). However, as noted above, this court dismissed the matter in light of his failure to conform to the rule\u2019s requirements concerning the consent of the trial court and the prosecuting attorney and the written reservation of the right to appeal, leaving Noble\u2019s plea and sentence in place. Noble v. State, supra.\nSubsequently, Noble filed a post-conviction petition in the Jefferson County Circuit Court, seeking relief under Ark. R. Crim. R 37.1. On March 7, 1994, the circuit court entered an order denying the petition. Eight days later, on March 15, 1994, the court entered an amended order denying relief under the Strickland v. Washington two-pronged \u201ccause\u201d and \u201cprejudice\u201d test. The circuit court found that Noble had established cause, noting that the trial counsel\u2019s failure to observe the procedural requirements for preservation of the right of appeal \u201cfell below the standard of competence required, whether that is denominated as ineffective assistance of counsel at trial or on appeal.\u201d\nIn applying the appropriate standard for determining prejudice \u2014 whether there was a reasonable probability that Noble would have succeeded on the merits of his appeal had it been determined on the merits \u2014 the circuit court observed that \u201cTo make that finding would in essence require the Court to reverse its decision on the motion to suppress from which Defendant attempted to appeal.\u201d Noting that there was no further evidence to present, the circuit court declined to reverse its ruling denying the motion to suppress. From that decision, this appeal arises.\nRule 37.1\nFor reversal, Noble argues that the circuit court erred in denying the petition seeking post-conviction relief pursuant to Rule 37.1. He contends that he received ineffective assistance of counsel at both trial and appellate levels as a result of the trial counsel\u2019s failure to reserve in writing the right to pursue a conditional appeal under Ark. R. Crim. P. 24.3(b).\nA defendant in a criminal case is entitled to the effective assistance of counsel on direct appeal. Evitts v. Lucey, 469 U.S. 387 (1985). According to Noble, his former appellate counsel was ineffective as measured by the standards set forth by the United States Supreme Court in Strickland v. Washington. Those standards were explicitly adopted by this court in Dumond v. State, 294 Ark. 379, 743 S.W.2d 779 (1988).\nIn Strickland, the Supreme Court held that:\nA convicted defendant\u2019s claim that counsel\u2019s assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel\u2019s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the \u201ccounsel\u201d guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel\u2019s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.\n466 U.S. at 687.\nA court deciding an ineffectiveness claim must judge the reasonableness of the challenged conduct on the facts of the particular case within the context of the wide range of presumptively competent assistance. Id., at 690. But even professionally unreasonable errors by counsel do not warrant setting aside a conviction if the errors were not prejudicial to the defense and had no effect on the judgment. Id., at 691-2. It is necessary to show, in the second prong of the Strickland test, that, but for counsel\u2019s errors, the outcome of the criminal proceeding would have been different. Rowe v. State, 318 Ark. 25, 883 S.W.2d 804 (1994); Dumond v. State, supra.\nThe circuit court\u2019s finding that Noble had established the first prong of the Strickland test relating to the deficient performance of his attorney (or \u201ccause,\u201d as the circuit court phrased it) is not at issue in the present case. It is necessary, therefore, to address the second prong relating to prejudice.\nThis court must determine whether there is a reasonable probability that the outcome of the case would have been different but for counsel\u2019s error. See Pruett v. State, 287 Ark. 124, 697 S.W.2d 872 (1985). The critical issue, then, for purposes of this review, is whether it is reasonably probable that Noble\u2019s direct appeal would have been successful. In order to determine whether Noble would have prevailed on a direct appeal, we must consider whether the circuit court correctly concluded that the in-custody statements were freely and voluntarily given and properly denied Noble\u2019s motion to suppress the custodial confession.\nCustodial statements are presumed to be involuntary. Weaver v. State, 305 Ark. 180, 806 S.W.2d 615 (1991); Moore v. State, 303 Ark. 1, 791 S.W.2d 698 (1990). In Miranda v. Arizona, 384 U.S. 436, 467 (1966), the United States Supreme Court recognized that custodial interrogation inherently produces \u201ccompelling pressures which work to undermine the individual\u2019s will to resist and to compel him to speak where he would not otherwise do so freely.\u201d Hence, the Court in Miranda imposed a clear standard obliging police to apprise a suspect of the State\u2019s intention to use his statements to secure a conviction and, further, to inform him of his rights to remain silent and, if desired, to have counsel.\nThe State must prove to the trial court by a preponderance of the evidence that the defendant\u2019s custodial statement was voluntary. Ark. Code Ann. \u00a7 16-89-107(b) (1987). Moreover, the burden is on the State to show that the confession in question was made voluntarily, freely, and understandingly, without hope of reward or fear of punishment. Thomas v. State, 315 Ark. 504, 868 S.W.2d 483 (1994); Jackson v. State, 284 Ark. 478, 683 S.W.2d 606 (1985).\nIn determining whether a custodial statement is voluntary, this court undertakes an independent review of the totality of the circumstances and reverses only if the trial court\u2019s findings are clearly against the preponderance of the evidence. Thomas v. State, supra; Sanders v. State, 305 Ark. 112, 805 S.W.2d 953 (1991). Only if the totality of the circumstances reveals both an uncoerced choice made by the defendant to relinquish his right to remain silent and a full awareness of the nature of the right being abandoned and the consequences of the decision to abandon it may a court properly conclude that a defendant\u2019s Miranda rights have been waived. Moran v. Burbine, 475 U.S. 412 (1986); Mauppin v. State, 309 Ark. 235, 831 S.W.2d 104 (1992).\nThe totality of the circumstances is subdivided into two further components: the statement of the officer and the vulnerability of the defendant. Thomas v. State, supra; Sanders v. State, supra. Among the factors to be evaluated in considering the totality of the circumstances are the age of the accused, lack of education, low intelligence, lack of advice of constitutional rights, length of detention, repeated and prolonged questioning, and the use of physical punishment. Henderson v. State, 311 Ark. 398, 844 S.W.2d 360 (1993).\nIn reviewing the totality of the circumstances, we must refocus on the facts in detail and, in doing so, resolve all doubts in favor of individual rights and safeguards. Davis v. State, 275 Ark. 264, 630 S.W.2d 1 (1982). However, in reviewing a trial court\u2019s ruling on the suppression of custodial statements, we view the evidence in the light most favorable to the State. Moore v. State, supra. When testimony on the circumstances surrounding the taking of a custodial confession is conflicting, it is the trial court\u2019s province to weigh the evidence and resolve the credibility of the witnesses. Higgins v. State, 317 Ark. 555, 879 S.W.2d 424 (1994); Thomas v. State, supra; Orr v. State, 288 Ark. 118, 703 S.W.2d 438 (1986).\nTwo custodial statements are at issue in the present case. With respect to the first, transcribed at the Pine Bluff Police Department by Sergeant Bacon, Noble points out that the interrogating officers departed from normal policy by not taping the interview. He states in his brief that the police continued to interrogate him, even after he had given his first statement and had said that he wanted to stop. The officers acknowledged having been unconvinced by the initial statement and having persisted in questioning Noble because his account was at variance with those of his co-defendants. We have held that persistent questioning based upon the interrogator\u2019s assumption of the accused\u2019s guilt will not render a resulting confession involuntary, particularly when the accused\u2019s story is presumed to be untrue on the basis of statements given by other persons present at the time of the crime. Gardner v. State, 263 Ark. 739, 569 S.W.2d 74 (1978), cert. denied, 440 U.S. 911 (1979).\nNoble also claims that the appeals to his religious sympathies made in connection with both statements were coercive and prompted his confession. Sergeant Bacon had admonished him that \u201cin my belief as a Christian it is not who judges you on this earth, it is what the good Lord will judge at the end of your life, and that\u2019s the only person you have to be right with.\u201d Inspector Howell had told Noble that he was a Catholic and that it was important to tell the truth.\nThese appeals are characterized by Noble as \u201csignificantly evocative\u201d of the \u201cChristian burial\u201d speech disapproved by the United States Supreme Court in Brewer v. Williams, 430 U.S. 387 (1977). In that case, however, the accused had already invoked his right to counsel and terminated the interrogation, and the voluntariness of the confession was not at issue. In the present case, the remarks on religion occurred during two different interrogations in which Noble never requested counsel.\nThe police may use some psychological tactics in eliciting a custodial statement from an accused. See Miller v. Fenton, 796 F.2d 598 (3rd Cir. 1986), cert. denied sub nom. Miller v. Neubert, 479 U.S. 989 (1986). For example, the police may, without violating an accused\u2019s rights, attempt to play on his sympathies or explain to him that honesty is the best policy, provided that the accused\u2019s decision to make a custodial statement is voluntary in the sense that it is the product of the accused\u2019s exercise of his free will. Miller v. Fenton, supra. Appeals to an accused\u2019s religious sympathies do not automatically render a confession involuntary. See Welch v. Butler, 835 F.2d 92 (5th Cir. 1985); Stawicki v. Israel, 778 F.2d 380 (7th Cir. 1985).\nOn the basis of the evidence presented at the suppression hearing and the arguments set forth in his brief, it cannot be said that Noble was so singularly vulnerable to the broadly based religious appeals made by the police officers that his free will was completely overborne. Indeed, the extent of Noble\u2019s religious conviction is illuminated by his comment at the suppression hearing that \u201cI told [the police] I was a Baptist and believed in God and all.\u201d Although he claims that Investigator Howell urged him to confess all his sins, Investigator Howell\u2019s own testimony does not indicate that such an exhortation occurred. Any conflict in the testimony was for the circuit court to resolve. Thomas v. State, supra.\nNoble also asserts that the police engaged in coercive conduct by showing him photographs of the murder victim. Again, police officers are permitted to exert psychological pressure on an accused so long as they do not completely overbear his free will. See Miller v. Fenton, supra. Showing a murder suspect photographs of the murder victim is not inherently coercive police conduct, as indicated by the case of Derrick v. Peterson, 924 F.2d 813 (9th Cir. 1990), cert. denied, 112 S. Ct. 161 (1991). There, the Ninth Circuit Court of Appeals held that the police did not coerce a confession from the accused by showing him for identification purposes photographs of the corpses of his father and stepmother, whom he had killed with a shotgun. In the present case, the display of photographs of Ms. Jester did not exceed the bounds of non-coercive psychological tactics.\nA credibility question is at issue in Noble\u2019s assertion that the police officers denied him the right to remain silent in connection with the taking of the polygraph examination. We have held that, once an accused has invoked his right to remain silent, the police must scrupulously honor that right. Hatley v. State, 289 Ark. 130, 709 S.W.2d 812 (1986). The testimony, however, was in conflict, and it was for the circuit court to resolve the credibility of the witnesses. Thomas v. State, supra. As for Noble\u2019s contention that the \u201cmore damning statement\u201d was obtained through Investigator Howell\u2019s claims for the reliability of his polygraph equipment, we have held that telling an accused that he would not pass a polygraph examination if he did not tell the truth was not a threat. Gardner v. State, supra. In any event, the polygraph examination was never administered.\nFinally, Noble himself testified that he had attended college and business school and had previous experience with the criminal justice system, having been arrested on drug, burglarly, and theft charges and having had his Miranda rights read to him. In the present case, he had signed and initialed a Miranda form.\nThus, it cannot be said that Noble suffered prejudice or that the trial court committed reversible error in denying post-conviction relief.\nAffirmed.", "type": "majority", "author": "Jack Holt, Jr., Chief Justice." } ], "attorneys": [ "Jeff Rosenzweig, for appellant.", "Winston Bryant, Att\u2019y Gen., by: Clint Miller, Senior Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Sherman NOBLE v. STATE of Arkansas\nCR 94-572\n892 S.W.2d 477\nSupreme Court of Arkansas\nOpinion delivered February 13, 1995\nJeff Rosenzweig, for appellant.\nWinston Bryant, Att\u2019y Gen., by: Clint Miller, Senior Asst. Att\u2019y Gen., for appellee." }, "file_name": "0407-01", "first_page_order": 441, "last_page_order": 454 }