{ "id": 74104, "name": "Sharon WHITAKER v. STATE of Arkansas", "name_abbreviation": "Whitaker v. State", "decision_date": "2002-04-04", "docket_number": "CR 01-1044", "first_page": "90", "last_page": "99", "citations": [ { "type": "official", "cite": "348 Ark. 90" }, { "type": "parallel", "cite": "71 S.W.3d 567" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "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": "752 N.E.2d 684", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "434 Mass. 732", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 1080021 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/mass/434/0732-01" ] }, { "cite": "2000 WL 1473851", "category": "reporters:specialty_west", "reporter": "WL", "year": 2001, "opinion_index": 0 }, { "cite": "512 U.S. 452", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 39831 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "459" } ], "opinion_index": 0, "case_paths": [ "/us/512/0452-01" ] }, { "cite": "274 Ark. 134", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1755062 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/274/0134-01" ] }, { "cite": "295 Ark. 72", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1893788 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/295/0072-01" ] }, { "cite": "451 U.S. 477", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6187603 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/us/451/0477-01" ] }, { "cite": "475 U.S. 625", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6206467 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/us/475/0625-01" ] }, { "cite": "322 Ark. 613", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1447536 ], "weight": 2, "year": 1995, "pin_cites": [ { "parenthetical": "citing Michigan v. Jackson, 475 U.S. 625 (1986); Edwards v. Arizona, 451 U.S. 477 (1981); Bussard v. State, 295 Ark. 72, 747 S.W.2d 71 (1988); Coble v. State, 274 Ark. 134, 624 S.W.2d 421 (1981s)" }, { "parenthetical": "citing Michigan v. Jackson, 475 U.S. 625 (1986); Edwards v. Arizona, 451 U.S. 477 (1981); Bussard v. State, 295 Ark. 72, 747 S.W.2d 71 (1988); Coble v. State, 274 Ark. 134, 624 S.W.2d 421 (1981s)" } ], "opinion_index": 0, "case_paths": [ "/ark/322/0613-01" ] }, { "cite": "329 Ark. 473", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 236170 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/329/0473-01" ] }, { "cite": "322 Ark. 483", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1447507 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/322/0483-01" ] }, { "cite": "344 Ark. 682", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 210113 ], "weight": 2, "year": 2001, "opinion_index": 0, "case_paths": [ "/ark/344/0682-01" ] }, { "cite": "346 Ark. 33", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1111320 ], "weight": 2, "year": 2001, "opinion_index": 0, "case_paths": [ "/ark/346/0033-01" ] }, { "cite": "289 Ark. 130", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1875452 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "133" }, { "page": "814" } ], "opinion_index": 0, "case_paths": [ "/ark/289/0130-01" ] }, { "cite": "423 U.S. 96", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6175104 ], "weight": 4, "year": 1975, "pin_cites": [ { "page": "103" }, { "page": "102" } ], "opinion_index": 0, "case_paths": [ "/us/423/0096-01" ] }, { "cite": "334 Ark. 190", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1655531 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/334/0190-01" ] }, { "cite": "343 Ark. 181", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 226528 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark/343/0181-01" ] }, { "cite": "345 Ark. 63", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 939046 ], "weight": 2, "year": 2001, "opinion_index": 0, "case_paths": [ "/ark/345/0063-01" ] }, { "cite": "324 Ark. 158", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 9158922 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/324/0158-01" ] }, { "cite": "326 Ark. 210", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 12021600 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/326/0210-01" ] }, { "cite": "330 Ark. 8", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 298586 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/330/0008-01" ] }, { "cite": "330 Ark. 66", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 298605 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/330/0066-01" ] } ], "analysis": { "cardinality": 815, "char_count": 15236, "ocr_confidence": 0.737, "pagerank": { "raw": 2.256496166366017e-07, "percentile": 0.7821498473463124 }, "sha256": "36d8a09a2ebdda9f4c5f2c43252c8418bf0eafa6afb8eaa4d80b1ec9423f2447", "simhash": "1:373d892c126ec1b6", "word_count": 2587 }, "last_updated": "2023-07-14T18:20:10.754650+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Sharon WHITAKER v. STATE of Arkansas" ], "opinions": [ { "text": "Robert L. Brown, Justice.\nThe appellant, Sharon Whitaker. aPDeals from a judgment of conviction for manslaughter and a sentence of ten years. She raises two points on appeal: (1) the trial court erred in permitting the jury to take the videotape of a custodial statement made to the Mena Chief of . Police into the jury room as part of its deliberations; and (2) the trial court erred in failing to suppress that statement. We reverse on the second point and remand for further proceedings.\nIn March 2000, Bill and Sharon Whitaker had been married for about twenty years. They lived in Mena, and they had one child, Matthew, who was nineteen years old at that time. Sharon also had two children from a previous marriage. The couple owned two businesses together, Rich Mountain Aviation and Rich Mountain Aircraft Parts. Bill was the president of both companies, and Sharon served as the companies\u2019 office manager.\nTheir marriage was tumultuous, according to several witnesses who testified at trial, including the Whitakers\u2019 son Matthew. Bill had multiple extramarital affairs and was, at times, mentally and physically abusive to his wife and son. Sharon left Bill several times, only to return to him following his promises to recommit himself to the marriage. In January 2000, Sharon learned that her husband had been having another affair, this time with a woman he had known since high school. Sharon decided that she wanted a divorce. The two coexisted uneasily for the next month and a half.\nOn the afternoon of March 15, 2000, Sharon was at home, packing her husband\u2019s clothes into a trailer for purposes of the divorce. Bill was on his way back to Mena from Missouri. He reached the Rich Mountain office at about 3:30 p.m. When he got to his office, his secretary, Carolyn Lindy, updated him on business matters. He told Lindy that he would be at the office well into the evening.\nSharon had also been in touch with Lindy and wanted Lindy to notify her when her husband returned to the office. According to her trial testimony, Sharon was frightened about their next encounter, because she wanted a divorce and wanted her husband to move out of their home. She told Lindy that she wanted her to call her when Lindy left the office. When Lindy did leave the office around 5:45 p.m., she called Sharon and told her that she was leaving. She also told her that Bill was going to stay at the office to continue working.\nSharon left her home and went to the office. The facts concerning what happened when she got to the office were sharply disputed at trial. Sharon contended that she wanted to speak with her husband about the divorce and his moving out. She testified at her trial that there was a struggle in the Rich Mountain Aviation office and that when Bill pushed her down, she grabbed a pistol on a nearby table and shot him in self-defense. The State countered that Sharon went to the office with the intent to kill her \u2022 husband and that the shooting was not an act of self-defense.\nWhat is undisputed is that Sharon called 911 at 5:57 p.m. and told the dispatcher that someone had been shot. She requested police and ambulance units. Officer Tim Milham of the Mena Police Department responded to the call. He found Sharon sitting outside the office building, crying. She told Officer Milham that there was someone inside the building who had been shot. Inside the building, he and other responding officers found Bill Whitaker barely alive, with five gunshot wounds to his legs and lower torso. Emergency medical technicians arrived at the scene, and Bill was taken to the hospital where he died from his wounds.\nThe police officers arrested Sharon and took her to the Mena Police Station. At about 6:30 that evening, she was interrogated by Mena Police Chief Russell Nichols. The interrogation was videotaped. She had already been Mirandized once, but Chief Nichols informed her again of her Miranda rights and then asked her to tell him what had happened. She initially responded \u201cno,\u201d but after Chief Nichols asked again, she began discussing her marriage. She continued to answer questions for fifteen minutes, at which time she asked for an attorney. Chief Nichols stopped the interrogation.\nThe State charged Sharon with first-degree murder. Subsequently, she moved to suppress her videotaped statement and asserted that Chief Nichols had violated her Fifth Amendment right to remain silent when he continued questioning her after she had first answered \u201cno\u201d to his initial inquiry. The trial court denied her motion to suppress.\nA jury trial was held over four days. When they retired, the jurors took Sharon\u2019s videotaped statement to Chief Nichols back to the jury room with them. No objection was made to this by defense counsel. In closing argument, the prosecutor had encouraged the jury to watch the videotape during its deliberations. The jury returned a verdict, convicting Sharon of manslaughter, and she was sentenced to ten years\u2019 imprisonment.\nSharon asserts that Chief Nichols obtained her videotaped statement in violation of her Fifth Amendment right to remain silent and not incriminate herself. Thus, she argues, it was error for the trial court to admit the videotape into evidence over her motion to suppress. The State argues, in response, that Whitaker did not unequivocally invoke her right to remain silent and that in the absence of an unequivocal invocation, Chief Nichols was well within his authority to continue questioning her.\nWhen reviewing a trial court\u2019s decision on a motion to suppress, this Court makes an independent determination based on the totality of the circumstances and will reverse if the trial court\u2019s decision was clearly against the preponderance of the evidence. Burris v. State, 330 Ark. 66, 954 S.W.2d 209 (1997); Wofford v. State, 330 Ark. 8, 952 S.W.2d 646 (1997); Norman v. State, 326 Ark. 210, 931 S.W.2d 96 (1996); Bohanan v. State, 324 Ark. 158, 919 S.W.2d 198 (1996). This court will only reverse a trial court\u2019s ruling on a motion to suppress if the ruling was clearly erroneous. Lacy v. State, 345 Ark. 63, 44 S.W.3d 296 (2001); Barcenas v. State, 343 Ark. 181, 33 S.W.3d 136 (2000).\nA statement made while an accused is in custody is presumptively involuntary, and the burden is on the State to prove, by a preponderance of the evidence, that a custodial statement was given voluntarily and was knowingly and intelligently made. Lacy v. State, supra; Smith v. State, 334 Ark. 190, 974 S.W.2d 427 (1998). A defendant may cut off questioning at any time by unequivocally invoking his right to remain silent. Michigan v. Mosley, 423 U.S. 96 (1975). When the right to remain silent is invoked, it must be \u201cscrupulously honored.\u201d Mosley, 384 U.S. at 479; Miranda, 423 U.S. at 103; Hatley v. State, 289 Ark. 130, 133, 709 S.W.2d 812, 814 (1986). Our Criminal Rules follow in this mold and provide that a police officer shall not question an arrested person if that person indicates \u201cin any manner\u201d that he does not wish to be questioned. Ark. R. Crim. P. 4.5.\nA defendant may also waive an invocation of her right to silence. Bunch v. State, 346 Ark. 33, 57 S.W.3d 124 (2001). Specifically, answering questions following a statement that attempts to invoke the right to remain silent may waive that right by implication. Jones v. State, 344 Ark. 682, 42 S.W.3d 536 (2001); Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995); Standridge v. State, 329 Ark. 473, 951 S.W.2d 299 (1997). The accused may change her mind and decide to talk to law enforcement officials. Willett v. State, 322 Ark. 613, 911 S.W.2d 937 (1995) (citing Michigan v. Jackson, 475 U.S. 625 (1986); Edwards v. Arizona, 451 U.S. 477 (1981); Bussard v. State, 295 Ark. 72, 747 S.W.2d 71 (1988); Coble v. State, 274 Ark. 134, 624 S.W.2d 421 (1981s)).\nWhitaker contends that she unequivocally invoked her right to remain silent at the outset of the videotaped statement. The record contains the following transcription of the interview:\nChief Nichols: Now, having these [Miranda] rights in mind, like I said, I don\u2019t know even what happened. Do you want to tell me what\u2019s going on?\nSharon: No.\nChief Nichols: And, what we\u2019re doing?\nSharon: No.\nChief Nichols: Okay.\nSharon: No. No. No. No.\nChief Nichols: Well, what\u2019s \u2014 what happened out there?\nSharon: Huh-uh. [negative response]\nChief Nichols: Have you been involved in a fight?\nSharon: Well, I can tell you this. My husband decided that he wanted to marry his high school sweetheart and \u2014 and I\u2019ve just found out she\u2019s filed for a divorce and they were going to get married. And we\u2019ve been married for a long time. We have a 19 year old son that just went in the navy and he\u2019s doing really good. And we\u2019ve just started a business and \u2014\nChief Nichols: Why do people do stuff like that?\nHowever, the tape itself reveals a different sequence of questioning. Whitaker and Nichols were speaking simultaneously at several points. Sharon\u2019s six statements of \u201cno\u201d were continuous and were interspersed within Nichols\u2019s questions. While Sharon was repeating her statement of \u201cno,\u201d she was bent over and shaking her head. The following is a more accurate transcription of the interchange. Sharon\u2019s initial \u201cno\u201d is contained within brackets.\nChief Nichols: Now, having these rights in mind, like I said, I don\u2019t know even what happened. Do you want to tell me what\u2019s going on [no] and what we\u2019re doing?\nSharon: No. No. No. No. No.\nChief Nichols: Well, what\u2019s \u2014 what happened out there?\nSharon: Huh uh.\nChief Nichols: Have you been involved in a fight?\nSharon: Well, I can tell you this. My husband decided that he wanted to marry his high school sweetheart and \u2014\u2022 and I\u2019ve just found out she\u2019s filed for a divorce and they were going to get married. . . .\nAt this time, Sharon continued to answer questions and did so for about fifteen minutes. She never directly admitted shooting Bill; however, she said to Chief Nichols: \u201cPut me way away\u201d and repeatedly said that she did not want to live. She also discussed her marital problems at length. She added: \u201cI\u2019m scared to know what I did.\u201d When asked later by the police chief whether she was involved in a shooting, she answered: \u201cHuh, uh, I don\u2019t want to talk about it.\u201d When she eventually requested an attorney, Chief Nichols ceased the questioning immediately.\nThe trial court ruled that Sharon never unequivocally invoked her right to remain silent. In doing so he said:\nTo me, that [transcription] looked different than what I saw on the tape. Mr. McCombs [defense counsel], I don\u2019t see that it\u2019s that big a problem, it may very well be, but I\u2019m not as incensed with it as you are. I don\u2019t think I need to start setting examples. I don\u2019t know what the \u201cno, no, no, no\u201d meant. You interpreted it to mean that no, I don\u2019t want to talk to you. I don\u2019t know, so, I can\u2019t necessarily say that that\u2019s what it is. It may very well have been. I don\u2019t think the police are required to not say anything at all on a mere suspicion someone might supposedly not want to talk to them. I don\u2019t \u2014 I\u2019m inclined to deny the motion.\nWhen invoking a Miranda right, the accused must be unambiguous and unequivocal. Davis v. United States, 512 U.S. 452 (1994). For example, when invoking the right to counsel, the Court has said:\n[H]e must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. If the statement fails to meet the requisite level of clarity, Edwards does not require that the officers stop questioning the suspect.\nDavis, 512 U.S. at 459. This court has extended the Davis holding by reviewing the question of specificity when invoking the right to silence. Standridge v. State, supra; Bowen v. State, supra. For example, in Standridge, we held that a suspect\u2019s statement \u201cI ain\u2019t ready to talk\u201d was not unequivocal. Likewise, we held in Bowen that the statement that the accused wanted to \u201cthink about\u201d talking to police officers was not sufficiently definite.\nThe trial court, in its ruling, considered the series of \u201cno\u2019s\u201d to be subject to interpretation. But in reading the colloquy, we note that not only did Sharon respond in the negative at first about answering questions, but she also answered \u201cHuh-uh\u201d when asked \u201cWhat happened out there?\u201d When Chief Nichols pursued matters and asked, \u201cHave you been involved in a fight?,\u201d she answered, \u201cWell, I can tell you this . . .,\u201d as if to say she was willing only to talk about certain facets of what happened. Later on, she repeated that she did not \u201cwant to talk about it.\u201d Yet, Chief Nichols persisted in his questioning.\nAs already noted in this opinion, when a suspect invokes her right to silence, that invocation must be scrupulously honored. Michigan v. Mosley, supra; Miranda v. Arizona, supra; Hatley v. State, supra. We agree with the State that invoking silence must be unambiguous and unequivocal, but by the same token, the response \u201cno\u201d certainly connotes a desire not to speak. This is especially so when the \u201cno\u201d was followed by \u201cHuh-uh\u201d and then a limited, qualified response. It is true that Sharon was intensely emotional, but the pattern of her answers to the police chief tells this court that she did not want to talk about what happened. Moreover, \u201cno\u201d in common parlance is not an equivocal answer but one of acknowledged clarity and specificity. See State v. Weeks, 2000 WL 1473851 (Tenn. Crim. App., Oct. 2, 2001). In short, we hold that Sharon clearly articulated her right to be silent. See, e.g., Commonwealth v. Sicari, 434 Mass. 732, 752 N.E.2d 684 (2001).\nThe State argues that Sharon waived her Fifth Amendment rights by answering questions. But that argument avoids the fact that Chief Nichols never honored her desire not to talk. It is true that waiver has its place after a right to silence has been raised, but the interrogating officer must first cease questioning. Miranda v. Arizona, 384 U.S. 436 (1966). Otherwise, the right is meaningless. As the Court has said:\nTo permit the continuation of custodial interrogation after a momentary cessation would clearly frustrate the purposes of Miranda by allowing repeated rounds of questioning to undermine the will of the person being questioned.\nMichigan v. Mosley, 423 U.S. at 102.\nNor can we conclude that admission of Sharon\u2019s statement qualifies as harmless error. Her statement was inculpatory, even though she never confessed to killing Bill. Furthermore, she set out a motive for committing manslaughter and made statements such as \u201cI\u2019m scared to know what I did\u201d and \u201cput me way away.\u201d The prejudice from her statement is palpable.\nAccordingly, we hold that the trial court clearly erred in refusing to suppress Sharon\u2019s statement to Chief Nichols. Burris v. State, supra. We reverse the judgment of conviction and remand for further proceedings. Because the videotaped statement has been suppressed, the first issue is moot.\nReversed and remanded.", "type": "majority", "author": "Robert L. Brown, Justice." } ], "attorneys": [ "Page, Thrailkill, and McDaniel, P.A., by: Patrick McDaniel, for appellant.", "Mark Pryor, Att\u2019y Gen., by: Michael C. Angel, Ass\u2019t Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Sharon WHITAKER v. STATE of Arkansas\nCR 01-1044\n71 S.W.3d 567\nSupreme Court of Arkansas\nOpinion delivered April 4, 2002\nPage, Thrailkill, and McDaniel, P.A., by: Patrick McDaniel, for appellant.\nMark Pryor, Att\u2019y Gen., by: Michael C. Angel, Ass\u2019t Att\u2019y Gen., for appellee." }, "file_name": "0090-01", "first_page_order": 110, "last_page_order": 119 }