author: Annabelle Clinton Imber, Justice.

text:
    Joe Louis DANSBY v. STATE of Arkansas
    CR 97-1415
    1 S.W.3d 403
    Supreme Court of Arkansas
    Opinion delivered October 7, 1999
    [Petition for rehearing denied November 11, 1999.]

      Brambíett & Pratt, by: Eugene D. Bramblett, for appellant.

      Mark Pryor, Att’y Gen., by: Sandy Moll, Ass’t Att’y Gen., for appellee.
   Annabelle Clinton Imber, Justice.

Mr. Joe Louis Dansby was convicted of two counts of capital murder in the deaths of a young Nevada County couple and the jury imposed the death penalty. Accordingly, our jurisdiction is authorized pursuant to Ark. S. Ct. R. 1-2(a)(2) (1999). Mr. Dansby raises six assignments of error on appeal. We find no merit in any of the points raised, and we affirm the judgment of conviction.

On a Saturday afternoon in May, 1992, Malissa Clark and her boyfriend, Jeffrey Lewis, left her residence to go riding on a four-wheeler. Early the next morning, Ms. Clark’s parents discovered that she had not returned home. Law enforcement authorities immediately began to search for the couple. By noon that day they had found a pair of pink panties, a pair of gym shorts stained with blood, some weight lifting gloves, a part of a gun rack, and several expended .22 shell casings in a rural area off of Potlatch Road in Nevada County. This area was designated as Crime Scene 1. Later that same day, the bodies of Mr. Lewis and Ms. Clark were found several miles away from Crime Scene 1 in another rural area off of County Road 422. This area was designated as Crime Scene 2. Mr. Lewis’s body was in the bed of his pickup truck along with his four-wheeler. Ms. Clark’s naked body was lying in the road. Paint found on a stump at the first crime scene matched the paint on Mr. Lewis’s damaged pickup.

Both victims had multiple gunshot wounds inflicted by a .22 rifle, and both ultimately died from gunshot wounds delivered to the head at close range. The Medical Examiner at the State Crime Laboratory recovered .22 bullet fragments from their bodies and also took blood, hair, and vaginal samples. Evidence from the second crime scene indicated that at least one of the victims had been shot inside the truck and that both victims had been placed in the bed of the truck at some point. Several expended .22 shell casings were also recovered at Crime Scene 2. No fingerprints were recovered from either scene. Ms. Clark’s clothing and an amplifier from inside Mr. Lewis’s truck were also never recovered.

During the course of the homicide investigation, Mr. Joe Louis Dansby became a suspect. On August 27, 1993, he consented to a-search of an area surrounding his home by Arkansas State Police Investigators Lt. Finis Duvall and Sgt. Jack Ursery. However the search for .22 shell casings produced no results. On October 19, 1993, Sheriff Abb Morman and Deputies Wayne Kisselburg and Heb Sorrells went to Mr. Dansby’s home to retrieve him for purposes of obtaining blood and handwriting samples pursuant to a seizure warrant signed by a circuit judge. While at Mr. Dansby’s residence, Sheriff Morman located and recovered four expended .22 shell casings, one from the back porch and three more from the surrounding yard. The officers finally located Mr. Dansby nearby at his brother’s home as they were leaving the residence. Mr. Dansby was shown a copy of the warrant, and then accompanied the officers to Dr. Young’s office where the blood sample was to be taken.

Lt. Duvall met the officers and Mr. Dansby at Dr. Young’s office. Ms. Janice Nolan, an LPN, drew blood from Mr. Dansby and filled three tubes. According to Ms. Nolan, she initialed and dated each tube before placing them into a plastic bag. Then she sealed the bag with tape, initialed the tape herself, and then had Mr. Dansby initial the tape. Finally, she gave the bag to Lt. Duvall, who delivered it the next morning to the State Crime Laboratory. Although Lt. Duvall thought that Ms. Nolan had only given him two tubes of blood in the plastic bag, and so indicated on the evidence submission form that accompanied the blood sample to the laboratory, Mr. Kermit Channel, a serologist with the State Crime Laboratory, testified that he received a sealed plastic bag on October 20, 1993, that contained three tubes of blood, two bearing the date of October 19, 1993, and one bearing the date of October 9, 1993. According to Mr. Channel, the initials of Ms. Nolan and Mr. Dansby were displayed on the seal of the bag and all three tubes bore Ms. Nolan’s initials. She confirmed that those initials were in her handwriting and that she had probably made a mistake when writing the date on the tube of blood dated October 9, 1993. Mr. Channel prepared swatches from the tube bearing the October 9, 1993 date and sent them to the FBI Crime Laboratory for DNA testing. By report dated June 17, 1995, the FBI DNA Analysis Unit found that Mr. Dansby’s blood matched the semen taken from the victim. Swatches were also sent to Cellmark Diagnostics, a private laboratory, which also declared Mr. Dansby to be a match. At trial, Mr. Dansby objected to the introduction into evidence of the DNA test results on grounds that the State failed to establish a proper chain of custody. The trial court overruled that objection and admitted the DNA test results into evidence.

The trial court also denied Mr. Dansby’s motion to suppress the introduction into evidence of the .22 expended shell casings found by Sheriff Morman at Mr. Dansby’s home. According to a receipt from Sgt. Ursery, those four .22 shell casings were delivered by Sheriff Morman to Sgt. Ursery on October 19, 1993. At the suppression hearing, Sheriff Morman and Deputy Kisselburg testified that a report about the discovery was placed in the case file. Those shell casings were eventually submitted to the State Crime Laboratory on February 8, 1994. Before Mr. Berwin Monroe, Chief Firearms and Toolmarks Examiner at the State Crime Laboratory, examined and tested the four .22 shell casings, they were forwarded along with other evidence to the Bureau of Alcohol and Firearms Forensic Science Laboratory and to the FBI Laboratory in 1994 and 1995. In May 1996, the four shell casings were finally returned to the State Crime Laboratory, at which time Mr. Monroe completed his examination and concluded that one of the four shell casings found at Mr. Dansby’s home matched the shell casings found at Crime Scenes 1 and 2.

Mr. Dansby was charged in Nevada County on July 13, 1995 with two counts of capital murder. On July 11, 1996, the trial court granted Mr. Dansby’s request that venue be changed from Nevada County to Miller County. Seven months later, on February 18, 1997, after he retained new counsel, Mr. Dansby filed a motion to withdraw the earlier request for a change of venue, asserting that he now wanted to be tried in Nevada County where the crimes were committed. The trial court denied Mr. Dansby’s motion.

Mr. Dansby’s trial began in Miller County on April 7, 1997, with an extensive voir dire of the jury by the trial judge. Voir dire by the attorneys was primarily focused on how the members of the jury panel felt about the death penalty. Mr. Christopher Conner was the first African-American drawn for consideration as a juror. After the State used one of its peremptory challenges to excuse Mr. Conner, Mr. Dansby posed a Batson challenge to the State’s strike. The State responded that Mr. Conner’s views on the death penalty indicated that he would not seriously consider it as a sentencing option. The trial court then overruled Mr. Dansby’s Batson objection.

During the trial, the State called Mr. Jackie Wayne Cooper, a habitual offender with seven prior convictions, to testify as a witness during its cas e-in-chief. Mr. Cooper testified that Mr. Dansby had told him about the murders when they were both incarcerated in the Nevada County jail. According to Mr. Cooper, Mr. Dansby confessed to committing the murders and told him certain details about the crime. Mr. Dansby took the stand in his own defense and denied making a confession to Mr. Cooper. Prior to his cross-examination by the State, the trial court ruled that Mr. Dansby had waived his spousal privilege because a third party had testified that Mr. Dansby made a confession to him. The State then proceeded to cross-examine Mr. Dansby about his statements to his wife, whereupon he denied ever making a confession to her. Mr. Dansby’s wife, Betty Dansby, was then called as a rebuttal witness for the State. The trial court reiterated its prior ruling that the husband-wife privilege had been waived and permitted Mrs. Dansby to testify that Mr. Dansby told her that he killed the kids, threw the gun in the gravel pit, and that, if she loved him, she wouldn’t tell anyone.

During its cross-examination of Mr. Dansby, the State also sought to introduce certain “pornographic” magazines seized at his former home. The trial court held an in camera hearing on the admissibility of this evidence. In that hearing, the State asked Mr. Dansby whether the magazines in fact belonged to him, to which he responded, “If it’s something that is gonna hurt me, my answer is no.” The State then moved for permission to question Mr. Dansby in front of the jury about this response. While the trial court agreed with the defense that the pornographic magazines were not admissible, it nonetheless ruled that Mr. Dansby’s response reflected on his credibility and was a proper subject of cross-examination. The jury then heard Mr. Dansby acknowledge his previous statement.

Following a lengthy trial that concluded on April 24, 1997, the jury found Mr. Dansby guilty of two counts of capital murder and sentenced him to death on both counts. Mr. Dansby now appeals that conviction and raises six points for reversal: (1) the trial court erred in denying his motion to withdraw the request for a change of venue; (2) the trial court erred in overruling his Batson challenge; (3) the trial court erred in denying his motion to suppress the introduction of four spent .22 shell casings; (4) the trial court erred in admitting into evidence the DNA test results; (5) the trial court erred in ruling that Mr. Dansby had waived the husband-wife privilege; and (6) the trial court erred in allowing the State to cross-examine Mr. Dansby about statements that he made during an in camera hearing:

Venue

For his first point on appeal, Mr. Dansby asserts that the trial court erred in denying his motion to withdraw a previous request for change of venue. He asserts that he was not asking the court to change the venue of the trial back to Nevada County. Rather, he characterizes the motion as merely an attempt to withdraw his previous request that venue be changed to a county other than Nevada County. In a related argument, he contends that the trial court’s denial of the motion violates his constitutional right to trial in the county in which the crime was committed. Both arguments are without merit.

Article 2, Section 10, of the Arkansas Constitution states:

In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by impartial jury of the county in which the crime shall have been committed; provided that the venue may be changed to any other county of the judicial district in which the indictment is found, upon the application of the accused, in such manner as now is, or may be, prescribed by law.

(Emphasis added.) According to the plain language of this constitutional provision, a defendant’s constitutional right to be tried in the county where the crime was committed is qualified by the defendant’s right to apply for a change of venue “in such a manner as now is, or may be, prescribed by law.” Ark. Const. Art. 2, § 10. Thus, Article 2, section 10, of the Arkansas Constitution contemplates that the manner by which venue may be changed will be determined by legislative enactment. To that end, the legislature has enacted Ark. Code Ann. § 16-88-203 (1987), which states that “[o]nly one change of venue shall be granted in any criminal case or prosecution.”

We have held that this section is not unconstitutional on its face. Swindler v. State, 267 Ark. 418, 592 S.W.2d 91 (1979). We have further noted that the decision of whether or not to grant a change of venue, even a second one, is one that rests within the trial court’s discretion. Ronning v. State, 295 Ark. 228, 748 S.W.2d 633 (1988); Perry v. State, 279 Ark. 357, 642 S.W.2d 865 (1982). Both Ronning and Perry state that it is not an abuse of discretion for the trial court to refuse a defendant’s request for a second change of venue. Ronning, supra; Perry, supra.

At a pretrial hearing held on December 11, 1995, in the Circuit Court of Nevada County, the State indicated it would not oppose a change of venue in light of the amount of pretrial publicity that this case had generated in Nevada County. At a pretrial hearing on January 8, 1996, Mr. Dansby advised the court that he wanted to be tried in Nevada County. However, at another pretrial hearing held on July 11, 1996, Mr. Dansby’s counsel informed the court that Mr. Dansby wanted to have venue transferred to another county. When this request was made, the following exchange took place:

Mr. Hale (Counselfor Defendant): But, we would make a verbal motion and just following up on what Mr. Haltom said and I’ve talked to Mr. Dansby again this morning and that’s correct at this time, we would make a motion to transfer venue, and I will follow up with a written motion, Judge, but this just came about yesterday or day before when I visited with Joe over at the county jail, and he asked me if I would make a motion to transfer venue. And now, I’m formally making that motion for the court to consider ....
The Court: Mr. Dansby, I just, you’re present, of course, here, and you’ve heard the statements of your attorney, Mr. Hale. Is, do you now concur that may, you have conferred with your attorney, do you concur with him that a change of venue may be in your best interest?
Mr. Joe Louis Dansby: Yes.
* # *
The State: . . . We’d hate to order a change of venue to Miller County and about, or some other county, and about the time we go to trial, he decides he wants it back in Nevada County. But, if that’s what he wants and if the State stipulates to a change of venue, we think the record needs to be clear that the next time he changes his mind, we may oppose it. We want him just as we wanted him bound with his decision to try it in Nevada County back on January of ’96, if he’s changed his mind and wants a change of venue now and the State agrees to that, we want him to know that he’s bound by that, and he can’t just keep changing his mind and because Joe decides he wants another county, do it. It’s a matter that the State does not have to agree to and the Court does not grant, but apparently, he’s got the opinion that just whatever Joe wants, Joe gets. And I think the record needs to be clear that that’s not true. But, if he agrees to a change of venue to another county and the Court orders it, the fact that he subsequently changes his mind and maybe wants to come back to Nevada County doesn’t mean that that will happen.

After hearing responses from both sides, and no opposition from the State, the trial court transferred venue from Nevada County to Miller County on July 11, 1996.

Nevertheless, on February 18, 1997, after Mr. Dansby retained new counsel, he moved to withdraw his earlier request for change of venue. In support of this motion, he argued that no real steps had been taken to change venue to Miller County, other than an entry on the court’s docket, noting that the record still remained in Nevada County as did all the witnesses and evidence. The trial court, however, pointed out that arrangements had already been undertaken to schedule the trial in Miller County, and that Mr. Dansby had been warned in July 1996 when he requested a change of venue to Miller County that another request for change of venue back to Nevada County might not be granted. The trial court also observed that no real justification had been presented for transferring the trial back to Nevada County, and that such a transfer would result in further unnecessary delays. For these reasons, the trial court denied Mr. Dansby’s motion.

In Ford v. Wilson, 327 Ark. 243, 939 S.W.2d 258 (1997), we faced a similar situation when we denied Mr. Ford’s petition for a writ of prohibition to prohibit the circuit court from trying him in Mississippi County. In Ford., the crime occurred in Crittenden County, but was transferred to Mississippi County upon Mr. Ford’s motion for a change of venue. After Mr. Ford’s conviction was vacated by a federal district court, Mr. Ford contended that venue should be fixed in Crittenden County, where the information against him was filed. He argued, as Mr. Dansby does, that Ark. Const, art. 2, § 10, entitled him to a trial in the county where the crime was committed. We held that, regardless of the vacation of sentence by the federal district court, Mr. Ford remained exacdy as he was “immediately before trial commenced in Mississippi County in 1981.” Ford, supra. Because Mr. Ford had already been granted one change of venue to Mississippi County, we held that the trial court did not abuse its discretion in denying Mr. Ford’s request to have venue transferred back to Crittenden County. Ford, supra.

Mr. Dansby suggests that Ford, supra, is distinguishable from this case because his request to return venue to the county where the crime was committed was made before there was a trial and before there was a conviction. This distinction, however, ignores the focus of our holding in Ford. It is where venue stands immediately prior to trial that is controlling. In Mr. Ford’s case, venue was in Mississippi County immediately before trial in 1991. In this case, venue was in Miller County immediately before trial in 1997.

Mr. Dansby, however, seeks to ignore the trial court’s July 11, 1996 ruling that transferred venue to Miller County, by insisting that the only step taken to change venue was a docket entry. He submits, therefore, that his motion was not a request to change venue again, but rather that it was a request to withdraw his earlier motion for change of venue. This argument is not supported by the record of what transpired at the July 11, 1996 hearing. On that date, the trial court moved the jury trial to Miller County, and, as reflected in the colloquy quoted above, both the trial court and the State endeavored to make sure that Mr. Dansby understood the significance of such a transfer. When Mr. Dansby’s motion to withdraw was heard by the trial court at a hearing on March 19, 1997, the trial court had already coordinated the docket with three other judges in order to secure a courtroom on the scheduled trial date of April 7, 1997, and the State had already subpoenaed its witnesses to appear on that date in Miller County.

Under these circumstances, it is clear that the trial court complied with Article 2, § 10, of the Arkansas Constitution and Ark. Code Ann. § 16-88-203 (1987), when it acted upon Mr. Dansby’s first request for a change of venue in July 1996 and transferred venue to Miller County. Although Mr. Dansby labeled his second motion as a motion to withdraw the earlier request for a change of venue, it was actually nothing more than a request for a second change of venue, and therefore was discretionary with the trial judge. See Ford, supra; Ronning, supra; Perry, supra. Furthermore, we cannot say that the trial court abused its discretion when it denied Mr. Dansby’s request for a second change of venue.

Batson Challenge

Mr. Dansby’s second point for reversal asserts that the trial court erred in overruling his Batson challenge to the State’s exercise of one of its peremptory strikes on Mr. Christopher Conner, the first African-American drawn for consideration as a juror. Mr. Dansby contends that the basis for the State’s challenge, Mr. Conner’s opposition to the death penalty, was not race-neutral. This argument is without merit.

We will reverse a trial court’s ruling on a Batson challenge only when its findings are clearly against the preponderance of the evidence. See Williams v. State, 338 Ark. 97, 991 S.W.2d 565 (1999); Green v. State, 330 Ark. 458, 956 S.W.2d 849 (1997). In making Batson rulings, we accord a measure of deference to the trial court in light of its superior position to make such determinations due to its unique opportunity to observe the parties and determine their credibility. Williams, supra; Sanford v. State, 331 Ark. 334, 962 S.W.2d 335 (1998). Unless discriminatory intent appears in the prosecutor’s explanation, the reason given will be considered race-neutral. Williams, supra. We have previously held that the State could use a peremptory challenge to strike a juror who was morally opposed to the death penalty. See Green, supra; Sanford, supra.

The jury panel here was composed of sixty-four venire persons, with twelve members of the venire being African-American. Mr. Christopher Conner was the first African-American questioned during voir dire and the only African-American peremptorily challenged by the State. Mr. Conner’s answers to questions by the trial court, the State, and the defense, indicated a moral opposition to the death penalty. He stated that he was “opposed to putting someone to death for any crime,” and added that under no circumstances did he believe in capital punishment or the death penalty. While Mr. Conner ultimately conceded that he could follow the judge’s instructions on the law and consider the death penalty if so instructed, he also admitted upon re-examination by the State that he could not vote to impose the death penalty on another individual. The State then moved to strike Mr. Conner. Defense counsel raised a Batson challenge and argued that Mr. Conner was being excluded by virtue of his race. The State responded that it was striking Mr. Conner because of his inability to consider or impose the death penalty even under direct instruction by the trial court.

The trial court initially ruled that no systematic pattern of discrimination had been demonstrated, but that it would continue to look for such a pattern. While the trial court refused to disallow the State’s peremptory strike at that time, it instructed Mr. Conner to remain under summons as a juror until jury selection was completed. The trial court reiterated its willingness to reconsider the issue if a pattern were to develop later. Two African-Americans were ultimately seated on the jury. We have previously observed that this is persuasive evidence of a lack of racial bias during jury selection. See Sanford v. State, 331 Ark. 334, 962 S.W.2d 335 (1998). Additionally, the State peremptorily struck a white female from the venire on the same basis that it struck Mr. Conners — an inability to consider the death penalty. The trial court ultimately allowed the challenge, concluding that the State’s race-neutral explanation for striking Mr. Conner was not a pretext for purposeful discrimination.

Mr. Dansby maintains, however, that striking an African-American juror from the venire on the basis of that juror’s views on the death penalty is equivalent to a violation of the United States Supreme Court’s ruling in Batson v. Kentucky, 476 U.S. 79 (1986), because most African-Americans oppose the death penalty due to its unequal application. He also asks us to reconsider our holdings in Green and Sanford, arguing that the effect of these decisions is to justify a racially based peremptory strike. We have previously considered and rejected similar arguments of generalized death penalty views among the African-American population. See Danzie v. State, 326 Ark. 34, 930 S.W.2d 310 (1996). Mr. Dansby has provided neither the trial court nor this court with any evidence or data in support of this factual assertion. The United States Supreme Court has noted:

“Death Qualification,” unlike the wholesale exclusion of blacks, women, or Mexican-Americans from jury service, is carefully designed to serve the State’s concededly legitimate interest in obtaining a single jury that can properly and impartially apply the law to the facts of the case at both the guilt and sentencing phases of a capital trial.”

Lockhart v. McCree, 476 U.S. 162, 175-76 (1986). Thus, even if Mr. Dansby’s factual suppositions were accurate, we would nonetheless affirm the trial court’s ruling on the basis that the State has a legitimate interest in seating only those jurors who can follow the provisions of the law, including the imposition of the death penalty. See, e.g., Danzie, supra. We therefore affirm on this point.

Motion to Suppress Expended .22 Cartridge Casings

Mr. Dansby’s third point on appeal is that the trial court erred in denying his motion to suppress the introduction of the four expended .22 cartridge casings found by Sheriff Morman at his home because no written report was made of the seizure as required by Ark. R. Crim. P. 15.4. We affirm on this point as well.

Rule 15.4 of the Arkansas Rules of Criminal Procedure states:

(a) In all cases of seizure other than pursuant to a search warrant, the officer making the seizure shall, as soon thereafter as reasonably possible, report in writing the fact and circumstances of the seizure, with a list of things to the court before which the defendant will be brought for first appearance, or, if no arrest is made to a court having jurisdiction to entertain proceedings respecting the offense disclosed by the seizure.
(b) A copy of the list shall be given to the defendant or his counsel and the list shall be given such public notice as may be directed by a court of competent jurisdiction.

While we have never interpreted the substantive requirements of Rule 15.4, it is clear that we must analyze it in conjunction with our rules regarding the suppression of evidence. When reviewing a denial of a motion to suppress, this court must make an independent determination based upon the totality of the circumstances. Green v. State, 334 Ark. 484, 978 S.W.2d 300 (1998); Thompson v. State, 333 Ark. 92, 966 S.W.2d 901 (1998). We reverse only if the trial court’s ruling was clearly against the preponderance of the evidence. Green, supra; Thompson, supra. In making this determination, we view the evidence in the light most favorable to the State. Green, supra; Thompson, supra.

Pursuant to Rule 16.2(e) of the Arkansas Rules of Criminal Procedure, a motion to suppress evidence based on a rule violation will “be granted only if the court finds that the violation upon which it is based was substantial.” Rule 16.2(e) also enumerates the circumstances that a court must consider in determining whether a violation is substantial:

(i) the importance of the particular interest violated;
(ii) the extent of deviation from lawful conduct;
(iii) the extent to which the violation was willful;
(iv) the extent to which privacy was invaded;
(v) the extent to which the exclusion will tend to prevent violations of these rules;
(vi) whether, but for the violation, such evidence would have been discovered;
(vii) the extent to which the violation prejudiced the moving party’s ability to support his motion, or to defend himself in the proceedings in which such evidence is sought to be offered in evidence against him.

Consequently, a rule violation will warrant the suppression of evidence only when the trial court, after considering the factors set forth in Rule 16.2(e), finds that the violation was substantial. In McFarland v. State, 284 Ark. 533, 684 S.W.2d 233 (1985), we held that the failure to return a warrant to the issuing judicial officer as required by Ark. R. Crim. P. 13.4 was not a substantial violation sufficient to warrant suppression of the evidence where the failure was not willful and the appellants had shown no prejudice.

In this case, the testimony revealed the following: Deputy Kisselburg, Deputy Sorrells and Sheriff Morman all went to Mr. Dansby’s residence on October 19, 1993 in order to obtain blood and handwriting samples pursuant to a seizure warrant. Once they arrived at the residence, Deputy Kisselburg went to the front door while Deputy Sorrells and Sheriff Morman went around to the back door and commenced knocking. Sheriff Morman and Deputy Sorrells both testified that the sheriff noticed a .22 shell casing lodged between two bricks at the back entrance. Sheriff Morman and the other officers then began looking around Mr. Dansby’s residence for other shell casings while they waited for Mr. Dansby to return. Within twenty to thirty minutes of their arrival, Sheriff Morman discovered three more .22 shell casings in the back yard no more than twenty feet from where the first casing was found. None of the other officers found any shells. Although Deputy Sorrells witnessed the sheriff retrieve the first .22 shell casing from between the bricks at Mr. Dansby’s back door, neither of the deputies witnessed the sheriff’s discovery of the other three shell casings.

Sheriff Morman then gave the shell casings to Deputy Kisselburg, who transferred them to a .35 mm film canister. The container was then sealed with evidence tape and Sheriff Morman delivered it to Sgt. Ursery, who issued an evidence receipt dated October 19, 1993. According to Sheriff Morman, the sealed film canister was submitted to the State Crime Laboratory on February 8, 1994.

At the hearing on Mr. Dansby’s motion to suppress the shell casings, Sheriff Morman and Deputy Kisselburg testified that a report about the discovery of the shells on October 19, 1993, was filed in the law enforcement file. Sheriff Morman was subsequently interviewed on June 7, 1996, by State Police Investigator Lt. Mike Fletcher about the circumstances of the seizure on October 19, 1993, and that interview was transcribed. Although the report mentioned by Sheriff Morman and Deputy Kisselburg was never produced, their testimony about its existence went unrebutted. The State maintained an open-file policy throughout the discovery process, and the defense was made aware that these shells, discovered at Mr. Dansby’s home on October 19, 1993, were part of the State’s evidence.

In light of these circumstances, we conclude that there has not been a substantial violation of Rule 15.4 warranting suppression of the shells. There was consistent testimony by three law enforcement officials detailing the facts and circumstances of the search. There is a receipt documenting the transfer of the evidence from Sheriff Morman to the State Police Investigator that corroborates the date of the seizure and lists the items that were found. Finally, there was testimony that a report was filed in the law enforcement file. The trial court observed that the filing of the report in the law enforcement file was reasonable where no charges had been filed, no arrest had been made, and there was no case file where the court clerk could file such a report. Furthermore, the materials in the law enforcement file became available to the defense through the State’s open file policy. Based on this record, we cannot say that Sheriff Morman willfully failed to report the fact and circumstances of the seizure to the court “as soon thereafter as reasonable possible,” as required by Rule 15.4.

Mr. Dansby also cites an inability to follow the “torturous” path of the shell casings as a circumstance indicating prejudice. However, the path that the shell casings followed after they left Sheriff Morman’s possession does not bear upon the Rule 15.4 issue. The purpose of Rule 15.4 is to give the trial court notice of a warrantless seizure within a reasonable time after the seizure. Whereas, the path of evidence after seizure is governed by the establishment of a proper chain of custody. In any event, the path of the shell casings, which has been described earlier in this opinion, is traceable simply through the numerous reports from the various testing facilities and law enforcement agencies, and those reports were made available to Mr. Dansby during the course of discovery. Accordingly, we cannot say that Mr. Dansby has shown prejudice resulting from Sheriff Morman’s failure to comply with Rule 15.4.

Based upon the totality of the circumstances, we conclude that the trial court’s ruling was not against the preponderance of the evidence. We, therefore, affirm the trial court’s ruling that the failure to report the seizure to the court as required by Ark. R. Crim. P. 15.4 was not a substantial violation sufficient to warrant suppression of the evidence.

Motion To Suppress DNA Test Results

Mr. Dansby next argues that the trial court erred in overruling his objection to the introduction of the DNA test results on grounds that the State faded to establish a proper chain of custody for his blood samples. We have consistently agreed that the purpose of establishing a chain of custody is to prevent the introduction of evidence that is not authentic or that has been tampered with. White, supra; Harris, supra. However, while the trial court must be satisfied that, in reasonable probability, the evidence has not been tampered with, it is not necessary that the State eliminate every possibility of tampering. White, supra; Phills v. State, 301 Ark. 265, 783 S.W.2d 348 (1990); Lee, supra.

Proof of the chain of custody for interchangeable items like blood must be more conclusive than for other items of evidence. White, supra; Chrisco v. State, 328 Ark. 388, 943 S.W.2d 582 (1997). However, the mere possibility of access to blood, where there is no evidence of tampering, is not enough to render test results from that blood inadmissable. Lee v. State, 326 Ark. 229, 931 S.W.2d 433 (1996); Turner v. State, 258 Ark. 425, 527 S.W.2d 580 (1975).

Mr. Dansby was taken to Dr. Young’s office on October 19, 1993, where his blood was drawn by LPN Janice Nolan. Although Lt. Duvall testified that he thought Ms. Nolan only gave him two tubes of blood and so indicated on the evidence submission sheet that accompanied the blood sample to the laboratory, he acknowledged that he never actually counted the tubes and that he was going more on how many tubes he had been instructed to collect. On the other hand, Ms. Nolan testified unequivocally that she drew three tubes of blood from Mr. Dansby on October 19, 1993. She further testified that she dated and initialed each tube and placed the tubes in a plastic bag. She then sealed the bag with tape, initialed the tape herself, and then had Mr. Dansby initial the tape. Lt. Duvall delivered the bag to the State Crime Laboratory the next morning. The circumstances of Ms. Nolan’s testimony are corroborated by the testimony of Mr. Channel at the State Crime Laboratory, who stated that he received a sealed bag on October 20, 1993, and that the seal bore the initials of both Ms. Nolan and Mr. Dansby. Mr. Channel also testified that the bag contained three tubes of blood with Mr. Dansby’s name on each one of them and that all three tubes bore Ms. Nolan’s initials. Mr. Channel testified that neither the bag nor the seal showed any evidence of tampering.

As noted above, we must evaluate the trial court’s denial of Mr. Dansby’s motion to suppress under the totality of the circumstances, and view the evidence in a light most favorable to the State. Green, supra. Any inconsistencies in the testimony are for the trier of fact to resolve. Freeman v. State, 331 Ark. 130, 959 S.W.2d 400 (1998). Evaluating the testimony under those principles, any inconsistency in the evidence as to the number of tubes collected was logically and credibly resolved by the State’s witnesses.

Similarly, an erroneous date on the third tube of blood was also resolved by Ms. Nolan’s testimony. Ms. Nolan acknowledged on the witness stand that the October 9, 1993 date on the third tube of blood must have been her mistake. She explained that she must have omitted a “1” when dating the third tube. Her explanation is made more convincing by her testimony that, after going back and checking her records, she discovered that October 9, 1993, was a Saturday. She testified that she was not working on that date because Dr. Young’s office was not open on Saturdays, so it would have been impossible for her or anyone in Dr. Young’s office to have drawn blood on that date. Yet, the third tube of blood bore her handwritten initials. Inconsistencies in testimony are for the trier of fact to resolve. Freeman v. State, 331 Ark. 130, 959 S.W.2d 400 (1998). In view of the testimony of Ms. Nolan and Mr. Channel indicating that three tubes of blood were drawn from Mr. Dansby on October 19, 1993, and the complete lack of evidence in the record reflecting any actual tampering or contamination of the samples, or any significant gap in the chain of custody, we cannot say that the trial court abused its discretion in admitting the results of the DNA testing.

Husband-Wife Privilege

Mr. Dansby’s fifth point on appeal asserts that the trial court erred in finding that the husband-wife privilege had been waived and allowing his wife, Mrs. Betty Dansby, to testify against him. The State asserts that this privilege was effectively waived because a third party testified that Mr. Dansby communicated the privileged matter to him. We agree and affirm on this point also.

Rule 504 of the Arkansas Rules of Evidence provides that “[a]n accused in a criminal proceeding has a privilege to prevent his spouse from testifying as to any confidential communication between the accused and the spouse.” See also, Ark. Code Ann. § 16-41-101 (1987). However, Ark. R. Evid. 510 states:

A person upon whom these rules confer a privilege against disclosure waives the privilege if he or his predecessor while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the privileged matter. This rule does not apply if the disclosure itself was privileged.

Thus, if the same information protected by privilege is disclosed to a third person, the privilege is waived. See, e.g., Halfacre v. State, 292 Ark. 331, 731 S.W.2d 179 (1987).

In this case, the State called Mr. Dansby’s wife, Betty Dansby, to testify in its case-in-chief. Mr. Dansby asserted the husband-wife privilege and the trial court ruled prior to her testimony that the husband-wife privilege applied and warned Mrs. Dansby not to disclose any confidential communications between her and Mr. Dansby. She then testified only about what she had observed.

Later in its case-in-chief, the State presented the testimony of Mr. Jackie Cooper. According to Mr. Cooper, he and Mr. Dansby were both being held at the Nevada County jail when Mr. Dansby told him that he committed the murders. Specifically, Mr. Cooper testified that Mr. Dansby told him that he killed the two victims, killing the male victim first; that he raped the female victim; that he undressed the female victim after he killed her in order to prevent the discovery of hairs or fibers; that he attempted to wipe the female’s vaginal area clean after the rape; and that he killed one of the victims in a location different from the one where the bodies were found.

Mr. Dansby then took the stand in his own defense and denied that he told Mr. Cooper that he had killed the victims or that he had raped the female victim. Prior to cross-examination by the State, the trial court ruled that Mr. Dansby had waived the spousal privilege because a third party had testified that Mr. Dansby confessed to him about the murders. The State then was allowed to ask Mr. Dansby about the statements he made to his wife, whereupon Mr. Dansby denied ever telling his wife that he killed the victims. Mrs. Dansby was then called as a rebuttal witness for the State. She testified that Mr. Dansby told her that he killed the victims because a white man had killed his grandpa and nothing was done about it, that he threw the gun in a gravel pit, and that, if she loved him, she wouldn’t tell anyone what he had told her.

Mr. Dansby argues that the trial court should have decided that Mr. Cooper’s “highly disputed” testimony lacked credibility and ruled that Mr. Dansby had not waived the husband-wife privilege. To that end, Mr. Dansby points out that Mr. Cooper had been in the penitentiary on seven different occasions, all for violent crimes; that he and Mr. Dansby were not cell mates; that they had never met prior to their coincidental incarceration at the Nevada County jail; and that Mr. Cooper had previously told police that another inmate had confessed to the murders.

Mr. Dansby also suggests that the waiver of the husband-wife privilege should be limited to situations where the privileged matter is disclosed by the defendant to numerous people, either directly or by being overheard. We have previously upheld the waiver of the husband-wife privilege under such circumstances. Perry v. State, 280 Ark. 36, 655 S.W.2d 380(1983); Sumlin v. State, 273 Ark. 185, 617 S.W.2d 372 (1981). Finally, he suggests that the waiver should be limited to communications with a third party that are undisputed, because the defendant in Halfacre, supra, did not dispute the disclosure. Mr. Dansby thus proposes that his denial of the disclosure to Mr. Cooper should foreclose a waiver of the husband-wife privilege.

Unfortunately Mr. Dansby’s arguments are not supported by Rule 510 of the Arkansas Rules of Evidence which plainly states that the communication of any significant part of the privileged matter to someone other than the spouse waives the spousal privilege. The rule grants no exceptions or qualifications other than when the disclosure is itself privileged, such as a disclosure covered by lawyer-client privilege. Rule 510 does not state that the waiver depends upon the disclosure being heard by a number of people. Nor does the rule state that the waiver depends upon the third party’s testimony being undisputed. While we sympathize with Mr. Dansby on the quality of the State’s witness, the fact remains that the State introduced evidence that the privileged communication was disclosed to someone other than Mr. Dansby’s wife. In other words, the State introduced evidence that there had been a waiver of the privilege. Under such circumstances, it is solely within the province of the jury, not the trial court, to determine the credibility of that witness and the weight to be afforded that evidence. In that regard, Mr. Cooper was cross-examined extensively by Mr. Dansby’s counsel.

Mr. Dansby’s Admission

Mr. Dansby’s final point on appeal is that the trial court erred in allowing the State to cross-examine him about statements he made during an in camera hearing. He contends that the trial court allowed impeachment by extrinsic evidence on a collateral matter. The State asserts that the testimony was admissible because it reflected on Mr. Dansby’s credibility. We agree and affirm on this point.

In his final point, Mr. Dansby contests an evidentiary ruling by the trial court. A trial court is accorded wide discretion in evidentiary rulings, and will not be reversed on such rulings absent a manifest abuse of discretion. Skiver v. State, 336 Ark. 86, 983 S.W.2d 931 (1999); Miskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996).

During an in camera hearing concerning the admissibility of certain items left at Mr. Dansby’s home after he vacated the premises, the following exchange occurred:

Mr. Dansby: Could you rephrase the question please?
Mr. Rogers (For the State): Is any of these what’s been termed pornographic magazines yours?
Mr. Dansby: If it’s something that’s going to hurt me, I say no.
Mr. Rogers: Sir?
Mr. Dansby: If it’s something that’s going to be used to hurt me, I say no.
Mr. Rogers: You’re going to lie if you think it’s going to hurt you?
Mr. Dansby: Because it has nothing to do with whatever you are talking about. They were taken from some place property, shouldn’t have taken them from my property.

The State then announced its intention to cross-examine Mr. Dansby in front of the jury concerning his statements that he would lie if a truthful answer would hurt him. The trial court ruled that, although the pornographic magazines were not admissible under the Ark. R. Evid. 403 balancing test, the State could question Mr. Dansby about the above-quoted statement that he made during the in camera hearing because it was relevant to his credibility. The trial court further instructed the State to refrain from mentioning the pornographic magazines in its cross-examination. When the jury returned to the courtroom, Mr. Dansby testified as follows in response to the State’s questions:

Mr. Rogers (For the State): Okay, Mr. Dansby, during the break, I believe I asked you if you could identify some items?
Mr. Dansby: Yes.
Mr. Rogers: And did you recall making the response if it’s something that hurts me, I say no?
Mr. Dansby: Yes, I said that.
Mr. Rogers: And then you responded again, if it’s something that’s going to be used to hurt me, I say no.
Mr. Dansby: Yes, I said that.

A witness’s credibility is always an issue, subject to attack from any party. See Ark. R. Evid. 607. Mr. Dansby took the stand and thereby made his credibility an issue. He now argues that the State should not have been allowed to ask him about a statement he made in an in camera hearing while answering questions about a collateral matter, i.e., his possession of pornographic magazines in his home. We have previously held that a matter is not collateral if the cross-examining party would be entitled to prove the issue as a part of the case-in-chief, or if the evidence is relevant to show bias, knowledge, intent, or interest. Arthur v. Zearley, 337 Ark. 125, 992 S.W.2d 67 (1999); Pyle v. State, 314 Ark. 165, 862 S.W.2d 833 (1993). Mr. Dansby testified under oath that if he was asked about “something that’s going to be used to hurt me, I say no.” This admission that made no reference to the evidence excluded by the trial court (the pornographic magazines) was relevant to show Mr. Dansby’s bias. Mr. Dansby’s statement indicated a willingness to give false testimony if it would help his case. Such a propensity can only be characterized as a bias that is governed by the principle of utilitarianism — testimony that would benefit Mr. Dansby would prevail over the truth. Mr. Dansby’s admission during the in camera hearing was simply not a collateral matter. We, therefore, cannot say that the trial court’s evidentiary ruling was an abuse of discretion.

Ark. Sup. Ct. R. 4-3(h) Compliance

In accordance with Rule 4-3 (h), the record has been reviewed for adverse rulings objected to by Mr. Dansby but not argued on appeal, and no reversible errors were found.

Affirmed.

       A .22 Marlin rifle was recovered from the gravel pit shortly after Mrs. Dansby disclosed her husband’s confession to the deputy prosecuting attorney in January, 1994. Mr. Dansby’s son, Jackie Dansby, identified this particular rifle as belonging to his father, and Mr. Dansby himself admitted that he had his .22 rifle the day before the bodies were discovered at Crime Scene 2, although he claimed that someone had stolen the rifle from his automobile that same evening.

       Juror Mildred Sanders was later excused from service during the course of the trial pursuant to a note from her doctor.

       There was a reference to a report authored by Sheriff Morman in a motion filed by Mr. Dansby’s first attorney. The trial court acknowledged that it could not be sure that it was a reference to an actual report made by Sheriff Morman or a reference to the June 7, 1996 interview conducted by Lt. Fletcher. Nonetheless, the trial court appeared to view the reference as evidence that a report by Sheriff Morman in fact existed and was at some point reviewed by Mr. Dansby’s attorneys.


source: Caselaw Access Project

license: Public Domain

text:
    Roderick Leshun RANKIN v. STATE of Arkansas
    CR 99-97
    1 S.W.3d 14
    Supreme Court of Arkansas
    Opinion delivered October 7, 1999

      Cross, Kearney & McKissic, by: Gene E. McKissic, for appellant.

      Mark Pryor, Att’y Gen., by: Michael C. Angel, Ass’t Att’y Gen., for appellee.
   Annabelle Clinton Imber, Justice.

Roderick Leshun Rankin, the appellant, was sentenced to death in 1996 for the capital murders of Zena Reynolds, her mother Ernestine Halford, and her stepfather Nathaniel Halford. In his first appeal, Mr. Rankin raised six points of appeal. We concluded that most of his assignments of error were meritless or procedurally barred from review. Rankin v. State, 329 Ark. 379, 948 S.W.2d 397 (1997). However, we held that Mr. Rankin’s argument concerning the admission of his incriminating custodial statements was well taken because the record contained no account of a hearing or ruling on Mr. Rankin’s suppression motion. Id. We remanded the case, with instructions to the trial court to “conduct a hearing on the record for the limited purpose of determining whether Mr. Rankin’s statements were made after knowingly and intelligently waiving his right against self incrimination.” Id. As instructed, the trial court held the hearing on February 25, and March 2, 1998. Mr. Rankin’s motion to suppress the incriminating statements was eventually denied by the trial court on October 6, 1998. That ruling is the subject of this second appeal by Mr. Rankin.

The facts surrounding this case are laid out in detail in Rankin v. State, supra. The murders occurred in the early morning hours of December 27, 1994. Based on the statement of Mr. Rankin’s girlfriend, Sonyae Reynolds, who was hiding in a closet in the victims’ home during the attack, Mr. Rankin became the prime suspect in the murders. At approximately 8:00 a.m. that same day, Pine Bluff police officers went to the house where Mr. Rankin lived with his mother, Mrs. Elaine Rankin. With the consent of Mrs. Rankin, they conducted a search of the premises until she withdrew her consent. Mr. Rankin was placed under arrest and transported to the police sta\>n, where he was placed in a holding cell. At 10:43 a.m., Detecti- James Cooper read Mr. Rankin a form entitled “Rights Form and verbally advised him of the Miranda rights contained in thform. Mr. Rankin responded verbally that he understood his nfots and initialed each component of the form before signing his fil name at the bottom of the form. Detective Arless Hudgins also yitnessed the execution of the form. Mr. Rankin did not ask ay. questions about the form and appeared to be calm and quiet. Detective Cooper then began questioning Mr. Rankin about \e murders. Throughout the morning hours, Mr. Rankin deied any involvement in the murders. At approximately 12:00 n-ón, the questioning was suspended for a lunch break, during \hich time Mr. Rankin was provided with a hamburger and a drim. After a break of approximately twenty minutes, Detective Cocker resumed the questioning. He accused Mr. Rankin of lying ay| asked him if he needed some time alone to think about the situuion. Mr. Rankin indicated that he did want some time alone, bffore Detective Cooper left the interrogation room, someone slid ¿ note under the door stating that a gun, believed to be the murcfer weapon, had been found. Detective Cooper then left the roon, and conferred with Detective Terry Addison about showing the ■pm to Mr. Rankin. The two officers then entered the room and^howed the gun to Mr. Rankin, who responded, “You don’t hav? to show me that because I’m going to talk to you.” At 1:2\ p.m., Detective Cooper began recording Mr. Rankin’s confesión to the three murders. During the confession, Mr. Rankin ms upset and crying. The tape recording of the confession ended-it 1:27 p.m. He was then fingerprinted and photographed. At that time, he asked to see his mother and his request was granted.

Later that same day, around 4:15 p.m., Detective Cooper went to the Jefferson County jail to conduct a secoitd interview with Mr. Rankin. Detective Cooper followed the same procedure he had used earlier in the day to advise Mr. Rankin of his Miranda rights. After Mr. Rankin signed a second Rights Form, Detective Cooper began recording another statement at 4:18 p.m. However, Mr. Rankin terminated the second interview at 4:22 p.m. when he turned the tape recorder o and stated that he no longer wished to talk to Detective Coope-

At the motion-to-suppress hiring, Mr. Rankin argued that as a result of fatigue, youth, lachof education, mild retardation, and inability to understand the Ature of the questioning, he did not make a knowing and intelgent waiver of his constitutional right against self-incrimination He also argued that he did not voluntarily give the recorded ¿criminating statements. The trial court found that the State had* dearly met its burden of establishing both a knowing and intelgent waiver of rights as well as the voluntariness of [Mr. Ramin’s] confession” and denied Mr. Rankin’s motion to suppres- On appeal, Mr. Rankin asserts that his statements should haw been suppressed because they were involuntary and they wereAOt the product of a knowing and intelligent waiver. We disagne.

I. Voluntariness

For his firs'poimt on appeal, Mr. Rankin alleges that he did not voluntarily make the incriminating statements to the police. When determining whether a statement is voluntary, the issue on appeal is wiether the statement was the product of a free and deliberate ch>ice rather than intimidation, coercion, or deception. Britt v State, 334 Ark. 142, 974 S.W.2d 436 (1998). In malting this determination, we review the totality of the circumstances, and reverse the trial court only if its decision was clearly erroneous. Id. .Relevant factors to this determination are the age, education, and intelligence of the accused; the lack of advice as to his constitutional rights; the length of the detention; the repeated and prolonged nature of the questioning; and the use of mental or physical punishment. Id. Two other pertinent factors are the statements made by the interrogating officers and the vulnerability of the defendant. Conner v. State, 334 Ark. 457, 978 S.W.2d 300 (1998).

Mr. Rankin alleges that the police told him during the interrogation that his brother and mother were going to be held at the police station until he gave an incriminating statement, and that such threats caused him to give the incriminating state-merits. Both sides agree that Mr. Rankin’s brother, Mr. Rodney Rankin, was being held at the station on the same morning Mr. Rankin was being interrogated. Mr. Rankin’s mother also was present at the police station on the same day. However, Detective Cooper testified that he did not know that the mother was in the station until after the confession had been obtained. Detective Cooper also testified that he did not know that Mr. Rankin’s brother was at the station and being questioned by other officers at the same time he was interrogating Mr. Rankin. The credibility of witnesses who testify at a suppression hearing about the circumstances surrounding a defendant’s in-custody confession is for the trial judge to determine, and we defer to the superior position of the trial judge in matters of credibility. Wright v. State, 335 Ark. 395, 983 S.W.2d 397 (1998). Even if Mr. Rankin’s testimony were believed by the trial court, the police may use some psychological tactics and coercive statements in eliciting a custodial statement from the accused so long as the means employed are not calculated to procure an untrue statement, and the accused’s free will is not completely overborne. Conner v. State, supra. We have previously held that an officer’s threat to arrest the accused’s wife, although obviously intended to influence the accused, did not render the statement involuntary. Hood v. State, 329 Ark. 21, 947 S.W.2d 328 (1997). In this case, Mr. Rankin decided to give his confession right after Detectives Cooper and Addison showed him the murder weapon. Under these circumstances, we are unable to say that Mr. Rankin’s free will was completely overborne by any alleged threat to detain his mother and brother, or that such a threat procured an untrue statement.

Mr. Rankin also contends that his statements were rendered involuntary because he was held in custody for five hours without being advised of the nature of the charges against him and without being given the opportunity to make any phone calls before he gave his confession. In Wright v. State, supra, we determined that a custodial statement was voluntary when the total length of detention from the time of the arrest to the time of the confession was less than six hours. Likewise, Mr. Rankin was held for less than six hours before he confessed. There is no evidence that Mr. Rankin was mistreated or physically or mentally punished during his detention. Nor is there any evidence that the police made any promises in return for his confession. Finally, Detective Cooper testified that Mr. Rankin was advised that he was a murder suspect. Detective Cooper also did not recall Mr. Rankin ever asking to make a phone call. As previously stated, we defer to the trial court in matters of credibility. Wright v. State, supra. Based on this record, we cannot say that the length or nature of Mr. Rankin’s detention rendered his statements involuntary.

Mr. Rankin next calls our attention to his age, reading level, education, and intelligence. At the time of his confession, Mr. Rankin was nineteen years old. He had completed the eighth grade and read at a fourth-grade level. Dr. David Nanak, a psychological examiner, testified that he administered the Wescliler Adult Intelligence Scale—Revised examination to Mr. Rankin in February 1995. This examination measures a person’s IQ. Mr. Rankin scored a 66 on the full scale, with a verbal IQ of 69 and a performance IQ of 65. According to Dr. Nanak, Mr. Rankin’s IQ score of 66 placed him in the range of “mild mental retardation.” A second IQ test was administered in September 1995, which showed that Mr. Rankin had an IQ of 72. According to Dr. Nanak, this score put Mr. Rankin in the borderline classification range, whichTs not considered retarded. Dr. Nanak testified that the score of 72 was probably more accurate than the earlier score.

This court has frequently stated that age and mental capacity are factors that we consider, but, standing alone, they are not sufficient to suppress a confession. Britt v. State, supra (finding that a confession by a seventeen-year-old defendant with an IQ in the borderline range was voluntary); Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996) (finding that a defendant who was seventeen years old, possessed an IQ of 72, and read at the third-grade level voluntarily confessed). Additionally, the fact that the defendant is not a stranger to the criminal-justice system is a factor to be considered in determining whether a custodial statement was voluntarily made. Wright v. State, supra. There was evidence presented at the suppression hearing that Mr. Rankin had previously been arrested on charges of theft and breaking and entering. Thus, he had some degree of familiarity with the criminal-justice system. Based on the totality of the circumstances, we cannot say that the trial court clearly erred when it found that Mr. Rankin’s statements were voluntarily given.

II. Knowing and Intelligent Waiver

For his second point on appeal, Mr. Rankin alleges that he did not knowingly or intelligently waive his Miranda rights. When determining whether Mr. Rankin knowingly and intelligently waived his Miranda rights, the relevant inquiry is whether he waived his rights with full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Conner v. State, supra. In order to make this determination, we review the totality of the circumstances surrounding the waiver, including the age, experience, education, background, and intelligence of the defendant. Id. We will reverse the trial court’s ruling only if it was clearly erroneous. Id.

Mr. Rankin again points to the fact that he was only nineteen years old at the time he confessed to the murders, he read on a fourth-grade level, his formal education ended at the eighth grade, and he scored somewhere between 66 and 72 on IQ tests. We have held many times that a low intelligence quotient, in and of itself, does not mean that a suspect is incapable of waiving his rights. Misskelley, supra; Oliver v. State, 322 Ark. 8, 907 S.W.2d 706 (1995). Oliver is particularly on point. There, we held that a fifteen-year-old who was in the seventh grade at the time of the confession and had a second-grade reading level, an IQ as low as 74, and a mental age of a twelve-year-old, was capable of comprehending his Miranda rights and of waiving those rights. Oliver, supra. Also, in Sanford v. State, 331 Ark. 334, 962 S.W.2d 335 (1998), we held that a sixteen-year-old defendant who was mildly retarded and had an IQ of 67 was capable of waiving his rights. Moreover, both Dr. Nanak and Dr. John Anderson, a forensic psychologist at the State Hospital, testified at the suppression hearing that Mr. Rankin had the cognitive ability to understand the statements and questions on the Rights Form.

Mr. Rankin further alleges that the police officers never read him his Miranda rights and that he executed the Rights Form without reading it himself. It is undisputed that Mr. Rankin initialed each component of the form and signed his full name at the bottom of the form in the presence of Detectives Cooper and Hudgins. Detective Cooper testified that he read the Rights Form to Mr. Rankin before he began the interrogation and gave Mr. Rankin the opportunity to read the form himself. Detective Cooper also testified that Mr. Rankin indicated verbally that he understood his rights. That testimony was corroborated by Detective Hudgins. Once again, when there is conflicting evidence, the issue becomes one of credibility to be determined by the trial court. Wright v. State, supra. The trial judge is not required to believe the testimony of any witness, especially that of the accused since he or she is the person most interested in the outcome of the proceedings. Id.

Finally, Mr. Rankin asserts on appeal that he did not knowingly waive his Miranda rights because the rights forms he signed were inadequate in that the word “waiver” did not appear anywhere on the forms. The rights forms that Mr. Rankin signed contained each right required by the Supreme Court in Miranda. Following the statement of each right, the forms contained the question: “Do you understand?” In response to each question, Mr. Rankin circled the word “yes” and wrote his initials on the forms. He also signed his full name at the bottom of the forms. In Weger v. State, 315 Ark. 555. 869 S.W.2d 688 (1994), we held that a rights form containing each of the elements set out in Miranda fully advised the defendant of his rights. Also, in Humphrey v. State, 327 Ark. 753, 940 S.W.2d 860 (1997), we held that a form with an express waiver provision is not a prerequisite to a finding of a knowing and intelligent waiver. The rights form is simply a factor to be considered as part of the totality of the circumstances in determining whether the waiver was knowing and intelligent. Id. During the second taped interview by Detective Cooper, Mr. Rankin reached over and shut the tape recorder off, stating that he no longer wished to talk to the police. This action by Mr. Rankin clearly indicated that he understood what his rights were, and he also knew how to invoke those rights.

B^d on the totality of the circumstances, we conclude that tht™! court did not err when it held that Mr. Rankin knowingly intelligently waived his rights.

III. Arkansas Supreme Court Rule 4-3 (h)

purant to Ark. Sup. Ct. R. 4-3(h), the record was reviewed for all rHgs adversely decided to Mr. Rankin but not argued on appeal, -d no reversible errors were found.

yyrmed.

       Mr. Rodney Rankin also lived at his mother’s house, and one of the victims, Zena Reynolds, was his girlfriend.


author: Ray Thornton, Justice.

text:
    Roger Allen HAMMON v. STATE of Arkansas
    CR 98-525
    2 S.W.3d 50
    Supreme Court of Arkansas
    Opinion delivered October 7, 1999

      Phyllis B. Worley, for appellant.

      Mark Pryor, Att’y Gen., by: Kelly S. Terry, Ass’t Att’y Gen., for appellee.
   Ray Thornton, Justice.

Appellant brings this appeal of his conviction for capital murder in the shooting death of Roger Cousins on May 29, 1998, urging that the trial court erred in admitting the victim’s dying declaration naming appellant as his assailant. We find no error and affirm appellant’s conviction and sentence of life imprisonment.

Roger Cousins was found on the edge of a highway outside Judsonia by Tommy Cole. Cousins had been shot four times in the back and called out to Cole as he drove by, “Please help me. I’ve been shot. I’m dying.” Cole stopped his car and called 911 and requested assistance. Cole then heard Cousins say that a “Roger Hammon” had “shot me all to pieces.” Upon the arrival of the police and being told that his wounds were life-threatening, Cousins replied, “I know,” and said twice more that “Roger Hammon shot me.”

According to testimony, Cousins and Hammon were together earlier in the evening in a car driven by Shirley Estes, Cousins’s girlfriend and Hammon’s cousin. Hammon took possession of the loaded gun that Estes carried under the driver’s seat, and asked that she stop the car. Hammon fired one shot inside the car; Estes and Cousins dove out of the vehicle and Hammon chased Cousins, firing shots at him. Estes drove away from the scene and Cousins was later found beside the road near the scene of the shooting. Cousins was transported to the hospital, where he later died.

The State filed capital murder charges against Hammon, waiving the death penalty in the absence of aggravating factors. At trial, the medical examiner testified that analysis of the victim’s urine revealed amphetamine, methamphetamine, amitryptyline, its metabolite noritriptyline, and cannabinoids. No drugs or alcohol were detected in the victim’s blood. According to the medical examiner, a subject is only considered to be under the influence of drugs or alcohol when these substances are found in the bloodstream; the presence of such substances in the urine only indicates prior use. According to the toxicologist, that use could have been as recently as six to eight hours prior to his death, but no longer than twenty-four hours previously. The witness offered a professional opinion that the victim did not have the substances in his body in a level that would seriously affect or intoxicate him.

Hammon was convicted of capital murder and sentenced to life imprisonment. From that verdict and sentence he brings this appeal, alleging a single point of error: that the trial court erred in allowing the testimony of Cole and two police officers of the victim’s dying declaration that Hammon shot him, because Cousins was incompetent and his statement unreliable based on the presence of drugs in his urine.

Pursuant to Ark. R. Evid. 802 (1999), hearsay is not admissible except as provided by law or by the rules of evidence. One exception to the hearsay rule is found in Ark. R. Evid. 804(b)(2), which provides that a statement made under the belief of impending death, commonly known as a dying declaration, is not excludable as hearsay if the declarant is unavailable as a witness. In order to qualify as a dying declaration under Ark. R. Evid. 804, the statement must have been made by a declarant while believing that his death was imminent, and it must concern the cause or circumstances of what he believed to be his impending death. Thompson v. State, 306 Ark. 193, 813 S.W.2d 249 (1991). The trial court determines whether a statement is admissible as a dying declaration, and this court will reverse that determination only if the trial court abused its discretion. Id. Dying declarations are deemed inherently trustworthy. The principal consideration upon which such statements are admitted is that one who realizes that death is inevitable in consequence of the injury inflicted speaks with solemnity and will not resort to fabrication in order to unjustly punish another. Pinson v. State, 210 Ark. 56, 194 S.W.2d 190 (1946).

Appellant makes no argument that the statements at issue do not meet those requirements of dying declarations; rather, appellant’s argument centers on his contention that the dying declaration should be admissible only if it is otherwise reliable. In support of his argument, appellant cites two cases where we held that a dying declaration is only admissible to the extent that the deceased could have testified had he been alive at the time of the trial, and such declaration should not contain matter which would be excluded if the declarant was a witness. See Riddle v. State, 210 Ark. 255, 196 S.W.2d 226 (1946); Jones v. State, 52 Ark. 345, 12 S.W. 704 (1889). Appellant urges that “competent” as used in those cases has the same meaning as “rehable,” and that the victim’s testimony in this case is unreliable because of the drug metabolites in his urine.

We disagree with appellant’s interpretation of the cited cases. Both cases concerned instances where the deceased victim was shot in the back, under circumstances where the victim could not possibly have seen his shooter. A mere expression of opinion by the dying person is not admissible as a dying declaration. Riddle v. State, 210 Ark. 255, 196 S.W.2d 226 (1946). In the cases cited above, the declarant’s statement was incompetent because of lack of personal knowledge under Ark. R. Evid. 602, not because it was not “reliable,” as appellant uses the term. If, upon any view of the evidence, it is possible for the declarant to know the truth of what he states, his declarations, being otherwise competent, should be received and considered by the jury in light of all the evidence. Riddle, supra. Competency, as referred to in Ark. R. Evid. 601, is not to be confused with reliability. Testimony by competent witnesses may be presented to the finder of fact. The jury then evaluates the evidence, considers the credibility of the witness, and arrives at its conclusion. The criteria for determining whether a witness is competent to testify are: (1) the ability to understand the obligation of an oath; (2) an understanding of consequences of false swearing; (3) the ability to receive and retain accurate impressions; and (4) the capacity to transmit a reasonable statement of what has been seen, felt, or heard. Logan v. State, 299 Ark. 266, 773 S.W.2d 413 (1989).

The testimony of the medical examiner was that drugs were present in the victim’s urine but not in his bloodstream. The absence of the drugs from Cousins’s blood indicated that they had already been metabolized and did not render Cousins intoxicated at the time of his death. According to the witness, one is “only intoxicated when alcohol or drugs are found in the blood. If they are found in any other body fluids, you’re not under the influence.” The testimony of the three persons who heard the declarations was that Cousins was coherent: he spoke clearly, made sense, was rational, and did not appear to be drunk. We have concluded that Cousins was competent and thus his dying declaration was admissible, and that the further question of credibility was for the jury to consider.

We have previously rejected the argument that appellant makes here. In Missouri Pacific Rd. Co., Thompson, Trustee v. Haigler, Admx., 203 Ark. 804, 158 S.W.2d 703 (1942), we held:

Another assignment relates to the dying declaration of Haigler. It is contended that it was inadmissible, not on the ground that it was not made under a sense of impending death, but because, it is contended, that he was “suffering from shock and under the influence of opiates to such an extent as to render him incapable of knowing what he was doing or saying or of making the statement at all in fact.” Such evidence is admissible under the conditions set out in 5201, Pope’s Digest. We dispose of this assignment against appellant on the ground that there was substantial evidence to show that he was conscious, and whether he was, or whether he made the statement testified to by his son-in-law, were questions of fact for the jury. The same rule under the above mentioned statute in criminal cases is applicable to civil cases, and, as we said in Goynes v. State, 184 Ark. 303, 42 S.W.2d 406, “whether the deceased was of sound mind when he made the statement was a question of the credibility rather than the admissibility of the declaration.”

Id. (emphasis added). See also Bramlett v. State, 184 Ark. 808, 43 S.W.2d 364 (1931)(stating that the question whether victim who made dying declaration was conscious of his language was for jury to resolve in deciding the weight to give to testimony); Gray v. State, 185 Ark. 515, 48 S.W.2d 224 (1932); Riddle v. State, 210 Ark. 255, 196 S.W.2d 226 (1946) (stating that jury decides weight and credibility of dying declarations).

For a second contention under this point of error, appellant urges that Cousins’s dying declaration should have been excluded pursuant to Ark. R. Evid. 403 (1999), which provides that “[ajlthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Id. Determining the relevancy of evidence and gauging its probative value against the danger of unfair prejudice under Rule 403 are matters within the trial court’s discretion, the exercise of which will not be reversed on appeal absent a manifest abuse of that discretion. McLennan, supra.

Appellant contends that this evidence was more prejudicial than probative because the State had other means of proving its case, i.e., the eyewitness testimony of Shirley Estes. This argument fails based on our previous holdings that the State is entitled to prove its case as conclusively as it can. Regaldo v. State, 331 Ark. 326, 961 S.W.2d 739 (1998). Appellant’s reliance upon Smith v. State, 19 Ark. App. 188, 718 S.W.2d 475(1986)(en banc), and Golden v. State, 10 Ark. App. 362, 664 S.W.2d 496 (1984), for the proposition that the probative value of evidence correlates inversely to the availability of other means of proving the issue for which the prejudicial evidence is offered, is misplaced. We recently limited the application of Smith and Golden to cases involving Ark. R. Evid. 404(b), involving evidence of other crimes and wrongs. See Henry v. State, 337 Ark. 310, 989 S.W.2d 894 (1999).

Because we find no error in the trial court’s admission of the victim’s dying declaration, that ruling is affirmed.

Rule 4-3 (h) Review

As required by Ark. Sup. Ct. R. 4-3(h), the record has been reviewed for other reversible error, and none has been found. Therefore, we affirm.

Affirmed.


author: Per Curiam. Robert L. Brown, Justice,

text:
    Shirley McCOY v. Nettie MOORE
    99-939
    1 S.W.3d 11
    Supreme Court of Arkansas
    Opinion delivered October 7, 1999

      Horace Walker, for appellant.
    No response.
   Per Curiam.

Appellant Shirley McCoy filed a motion for rule on the clerk, stating she thought she had thirty days to appeal from a February 23, 1999, order which denied her earlier motion to vacate the trial court’s December 28, 1998, order granting appellee Nettie Moore the guardianship of Ethola Maddox. We deny McCoy’s motion.

After the trial court entered its December 28 order, McCoy obtained counsel who filed a motion on January 5, 1999, to vacate the December order. The trial court failed to act on McCoy’s motion, resulting in the motion being deemed denied on February 4, 1999. McCoy apparently had problems with her attorney and at some point proceeded pro se. Although it had no power to do so, since thirty days had expired since McCoy filed her motion on January 5, the trial court entered an order on February 23, 1999, denying her motion to vacate. Thinking she had thirty days from the February 23, 1999, order from which to file an appeal, McCoy filed her notice of appeal on March 19, 1999. See Rule 4 of the Rules of Appellate Procedure—Civil (1999), and Rule 59 of the Rules of Civil Procedure (1999).

The dissenting opinion suggests Rule 4 does not apply because a motion to vacate is not a motion for new trial as is required under Rule 4(b). The dissent is wrong. In Jackson v. Arkansas Power & Light Co., 309 Ark. 572, 832 S.W.2d 224 (1992), Jackson moved to vacate the trial court’s judgment as being contrary to the law, public policy, and the evidence. The Jackson court held that, because Jackson’s motion to vacate was in the nature of a motion for new trial under Rule 59, it was required to be filed within ten days of judgment. Ark. R. Civ. P. 59(b). Jackson failed to do so, and the court held that his untimely filing of his motion to vacate failed to extend the time for filing his notice of appeal under Rule 4(b). Therefore, the court dismissed Jackson’s appeal. In the instant case, Shirley McCoy is similarly barred. Although McCoy filed her motion within the required ten days, her mistake was failing to comply with Rule 4(b)(1) by omitting to file her notice of appeal within the thirty-day period after February 4, when her motion was deemed denied.

The dissent also offers the novel argument that McCoy’s motion cannot be characterized as a motion for new trial because she was never made a party to this case. The law is settled that a person with a pecuniary interest affected by a trial court’s judgment has standing to pursue appellate review of that judgment or order, even though the person was never made a party to the case. See, e.g., In the Matter of Allen, 304 Ark. 222, 800 S.W.2d 715 (1990); In re $3,166,199, 337 Ark. 74, 987 S.W.2d 663 (1999). Here, McCoy entered her appearance in this case below, because she clearly possessed a pecuniary interest which was undoubtedly affected by the trial court’s December 28, 1998, order. However, once again, she simply failed to perfect a timely appeal. Accordingly, McCoy’s motion for rule on the clerk must be dismissed.

In sum, Rule 4(c) of the Appellate Procedure—Civil required McCoy to file a notice of appeal within thirty days after her motion to vacate was deemed denied. When she failed to do so, the trial court lost jurisdiction and our court, too, is deprived of jurisdiction for an appeal. See Arkansas State Highway Comm’n v. Ayres, 311 Ark. 212, 842 S.W.2d 853 (1992).

Brown, Imber, and Thornton, JJ., dissent.

Robert L. Brown, Justice,

dissenting. The majority concludes that this court cannot take jurisdiction of Shirley McCoy’s appeal, but its reason for doing so is that the deemed-denied provision of Rule 4(b) of the Rules of Appellate Procedure—Civil applies. I disagree and would not expand the deemed-denied principle in this case.

The majority gives no reason why Rule 4(b) applies to these facts, but it is clear that it does not. On December 28, 1998, the probate court entered its order appointing Nettie Moore as guardian of the person and estate of Ethola Maddox. In that order Shirley McCoy was ordered to transfer all of Ethola Maddox’s funds in her possession and certain real property to Nettie Moore as guardian and to notify the Social Security Administration of the new guardianship.

On January 5, 1999, Shirley McCoy filed her motion to vacate the guardianship order. In her motion, she stated that she was never a party in the guardianship matter:

7. That Shirley McCoy received no service of summons or notice of hearing and was excluded from the courtroom at the hearing of this matter by invocation of the Rule, and was in no way made a party to this matter in order and that the Court did not acquire or have jurisdiction sufficient to make a decision regarding her rights to the real or personal property in question.

She added that she was a necessary party and that her joinder was required. On February 23, 1999, the probate court entered its order which denied the motion to vacate the guardianship. On March 19, 1999, a notice of appeal was filed by Shirley McCoy.

Rule 4(b)(1) only applies to (1) a motion for JNOV under Rule 50(b); (2) a motion for additional findings of fact under Rule 52(b); and (3) a motion for a new trial under Rule 59. Without question, McCoy’s motion to vacate is not one for JNOV or for additional findings of fact. That leaves the issue of whether it is a motion for a new trial. Rule 59(a) of the Rules of Civil Procedure begins: “A new trial may be granted to all or any of the parties and on all or part of the claim on the application of the party aggrieved, for any of the following grounds materially affecting the substantial rights of such party. ...” McCoy was not a party to the guardianship proceeding and, according to her motion, was not joined as a party or permitted to participate in the hearing. Hence, she is not asking for a new trial as a party who was involved in the first proceeding. Because of this, Rule 59(a) and Appellate Rule 4(b) do not apply, and her notice of appeal was timely.

Not all postjudgment motions are Rule 4(b)(1) motions. See, e.g., Fuller v. State, 316 Ark. 341, 872 S.W.2d 54 (1994) (motion for reconsideration not a Rule 4(b)(1) motion which divested this court of jurisdiction). As already indicated, this court has limited the motions to three. Contrary to the assertion in the majority’s footnote, this court is obligated to raise matters of subject-matter jurisdiction on its own, even when the precise jurisdictional argument is not made by the appellant. See Weems v. Garth, 338 Ark. 437, 993 S.W.2d 926 (1999); Williams v. Hudson, 320 Ark. 635, 898 S.W.2d 465 (1995); Rossi v. Rossi, 319 Ark. 373, 892 S.W.2d 246 (1995).

The majority’s rebanee on In re $3,166,199, 337 Ark. 74, 987 S.W.2d 663 (1999); Jackson v. Arkansas Power & Light Co., 309 Ark. 572, 832 S.W.2d 224 (1992); and In Re the Matter of Allen, 304 Ark. 222, 800 S.W.2d 715 (1990), is misplaced. In Jackson, the appellant was the defendant at trial and, thus, clearly a party. Furthermore, his motion was couched in terms of a new trial motion. We correctly treated his motion as one under Ark. R. Civ. P. 59(a). The cases of In the Matter of Allen, supra, and In re $3,166,199, supra, are also readily distinguishable. Those two cases dealt with appeals and not Rule 59 motions for a new trial. To repeat, Rule 59 expressly states that a motion for new trial is filed by parties. McCoy was never made a party in this matter and, in fact, was not allowed to participate in the guardianship proceeding.

In my view, this opinion expands the deemed-denied principle beyond the confines and clear terms of Rule 4(b)(1). Accordingly, our Committee on Civil Practice should review our rule in light of this opinion and consider an amendment to the rule.

Because I would accept McCoy’s appeal, I respectfully dissent.

Imber and Thornton, JJ., join.


author: Donald L. Corbin, Justice.

text:
    Earnest M. CRIDDLE Jr. v. STATE of Arkansas
    CR 98-1157
    1 S.W.3d 436
    Supreme Court of Arkansas
    Opinion delivered October 14, 1999

      Raymond F. Galloway, Phillips County Public Defender, for appellant.

      Mark Pryor, Att’y Gen., by: O. Milton Fine II, Ass’t Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant Earnest M. Criddle Jr. appeals the judgment of the Phillips County Circuit Court convicting him of one count of aggravated robbery. This case was certified to us from the Arkansas Court of Appeals; hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1 -2(d). Appellant asserts three points on appeal: (1) The trial court erred in denying his motion to suppress statements made while he was in police custody in the state of Mississippi; (2) the trial court erred in denying his motion to suppress the confession he made to Arkansas authorities; and (3) the trial court erred in instructing the jury on meritorious good time. Finding no merit in Appellant’s arguments, we affirm the judgment of conviction.

Facts and Procedural History

The record reflects that Appellant was arrested in Coahoma County, Mississippi, in connection with the aggravated robbery of a pharmacy in Flelena, Arkansas. He was extradited to Phillips County, Arkansas, to stand trial. Appellant declined his court-appointed counsel and instead retained Sam Whitfield Jr. to represent him. After learning that his codefendant had implicated him in three other armed robberies, Appellant, on the advice of his counsel, confessed to the crimes. Thereafter, he entered a plea of guilty to the three robberies and was sentenced to forty years in the Arkansas penitentiary. Appellant subsequently filed a petition with the United States District Court, Eastern District, Pine Bluff Division, for a writ of habeas corpus alleging that he was denied effective assistance of counsel. He alleged that Whitfield was acting under a conflict of interest while simultaneously representing him and his codefendant in connection with the robbery. Appellant further alleged that but for Whitfield’s erroneous advice, he would not have confessed to the robberies.

On April 16, 1997, the district court found that Appellant was deprived of his right to effective assistance of counsel. In turn, the district court ordered the State to reinstate the criminal proceedings against Appellant within ninety days. Specifically, the district court found that Sam Whitfield’s representation of Appellant and his codefendant at the time Appellant confessed created a conflict of interest. The district court also found that counsel’s advice to Appellant to confess to the three robberies was erroneous and fell below the constitutional standards for effective assistance of counsel. The State refiled its charges against Appellant and a new trial was scheduled.

Prior to trial, Appellant filed a motion to suppress the confession he gave in Arkansas on the ground that the district court found that he was denied effective assistance of counsel at the time he confessed. Appellant also objected to the introduction of statements he made while in police custody in Mississippi, arguing that they were the product of an invalid arrest. The trial court found that the Arkansas statement was voluntary and therefore should not be suppressed. The trial court also found that the arrest in Mississippi was valid, and thus, the Mississippi confession was also allowed into evidence.

Mississippi Arrest and Confession

For his first point on appeal, Appellant argues that his arrest in Mississippi was invalid because the police lacked probable cause to arrest him without a warrant. Fie further argues that the spontaneous, incriminating statements he made while in police custody in Mississippi should have been suppressed under the exclusionary rule as the fruit of an illegal arrest. The trial court found the arrest to be valid. This court has stated that all presumptions are favorable to the trial court’s ruling on the legality of an arrest and the burden of demonstrating error is on the appellant. Efurd v. State, 334 Ark. 596, 976 S.W.2d 928 (1998); Humphrey v. State, 327 Ark. 753, 940 S.W.2d 860 (1997). This court has previously held that Mississippi law applies in a situation where an Arkansas defendant was arrested in Mississippi, therefore, we apply Mississippi law to determine if the arrest of Appellant was valid. Jackson v. State, 241 Ark. 850, 410 S.W.2d 766 (1967). Mississippi Code Annotated § 99-3-7(1) (1989) governs when arrests may be made without warrants. This section provides in pertinent part:

An officer or private person may arrest any person without warrant, for an indictable offense committed, or a breach of the peace threatened or attempted in his presence; or when a person has committed a felony, though not in his presence; or when a felony has been committed, and he has reasonable ground to suspect and believe the person proposed to be arrested to have committed it[.]

Mississippi law provides that an arrest is valid if the arresting officer has probable cause to believe that a felony has been committed and probable cause to believe the suspect to be arrested committed the felony. Blue v. State, 674 So.2d 1184, 1202, reh’g denied, cert. denied, 117 S.Ct. 588 (Miss. 1996). Probable cause is less than evidence that would justify condemnation, but more than bare suspicion. Id. In Blue, the Supreme Court of Mississippi held that the existence of probable cause or reasonable grounds justifying a warrantless arrest is determined by factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.

In Norwood v. State, 258 So.2d 756 (Miss. 1972), the Mississippi Supreme Court held that a radio dispatch from the highway patrol describing the getaway vehicle used in a robbery supplied the arresting officer with probable cause to pursue the described automobile and to arrest its occupants. In the present matter, Appellant was arrested after fleeing the scene of the robbery in Helena. An Arkansas deputy sheriff contacted authorities in Mississippi and advised them that he was in pursuit of possible robbery suspects traveling in a white Firebird or Trans-Am at a high rate of speed. The sheriff advised of the car’s location and the direction it was traveling, specifically stating that the car was headed for the Mississippi Bridge. While traveling across the bridge, Appellant’s car passed a Mississippi sheriff s car. The Mississippi sheriff testified at trial that the car was traveling in excess of 100 miles per hour. He also testified that he notified other law enforcement agencies involved in the pursuit of the direction the car was traveling. This broadcast was heard by a Mississippi constable, who in turn proceeded toward the location of the suspects. The constable located the suspects after their car ran off the road. He detained them until sheriff s deputies arrived at the scene and placed them under arrest. Police found trash bags containing money, prescription drugs, rubber masks, and guns across from where the car left the road. Clearly, this information provided law enforcement officials with more than a bare suspicion that Appellant had committed a felony. Based on this evidence, we cannot say that the trial court erred in finding that the arrest was valid.

We note that Appellant does not allege that the statements made to Mississippi officials were involuntary or that police interrogated him without first advising him of his Miranda rights. In fact, Appellant was never questioned by Mississippi authorities, although he was advised of his Miranda rights. Appellant’s argument that the confession should be suppressed is based solely on his contention that the arrest was unlawful. Because we find that the arrest in Mississippi was indeed valid, we conclude that it was not error to admit the Mississippi confession. This court has stated that where the tree is not poisonous, neither is the fruit. Langford v. State, 332 Ark. 54, 962 S.W.2d 358 (1998).

Arkansas Confession

Appellant’s next point on appeal is that the trial court erred by denying his motion to suppress the confession he made while in police custody in Arkansas. Appellant argues that based on the district court’s finding of ineffective assistance of counsel, it was erroneous to allow the confession he gave while deprived of counsel to be introduced into evidence against him in his new trial. While we accept the district court’s ruling as tantamount to a ruling that the statement was inadmissible, we conclude that any error resulting from the admission of the statement amounts to mere harmless error.

We recognize that while some constitutional rights are so fundamental that their violation can never be deemed harmless error, others are subject to the harmless-error analysis. Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999) (quoting Chapman v. California, 386 U.S. 18 (1967)). To conclude that a constitutional error is harmless and does not mandate reversal, this court must conclude beyond a reasonable doubt that the error did not contribute to the verdict. Id.; see Schalski v. State, 322 Ark. 63, 907 S.W.2d 693 (1995); Allen v. State, 310 Ark. 384, 838 S.W.2d 346 (1992). Application of the Chapman analysis requires that we excise the confession and determine whether the remaining evidence shows beyond a reasonable doubt that the error did not contribute to the verdict. Even if the trial court had granted Appellant’s motion to suppress his Arkansas confession, there was ample evidence properly introduced at trial to sustain his conviction. This court has previously held that introduction of an involuntary statement was not prejudicial error when the same or similar evidence was otherwise properly admitted. Martin v. State, 328 Ark. 420, 944 S.W.2d 512, rev’d on other grounds, State v. Bell, 329 Ark. 422, 948 S.W.2d 557 (1997).

In the present matter, the State introduced not only Appellant’s Mississippi confession, but also the testimony of Appellant’s codefendant implicating him in the crime, as well as physical evidence recovered at the scene of Appellant’s arrest. While Mississippi authorities were booking Appellant, he made several spontaneous and incriminating statements. Appellant covered his face and stated: “I can’t believe we did this.” He then asked the booking officer what the sentence was in Arkansas for armed robbery. Appellant also commented, “Hell, we did it and we’ll have to live with it.” The officer, who had already advised Appellant of his Miranda rights, again advised him to remain quiet and talk to a lawyer. Ignoring this advice, Appellant continued to incriminate himself and told the officer that he had a drug problem and that was the reason that he had robbed the pharmacy. The officer made note of Appellant’s comments on the offense report which was introduced into evidence during the officer’s testimony at the trial.

Additionally, two pharmacy employees testified that there were two robbers, one armed with a sawed-off shotgun and the other armed with a handgun. They further testified that the robbers wore rubber presidential masks and demanded that a variety of controlled narcotics be placed in the white garbage bags they carried. The first officer to arrive at the scene testified that when he pulled up, one of the suspects was walking from across the road back to the car. Mississippi authorities discovered two white garbage bags containing a sawed-off shotgun, a .22 caliber handgun, two rubber presidential masks, and a variety of narcotics and other drugs in a ditch across from where Appellant’s car had run off the road. Also found in the trash bags were numerous checks made payable to the pharmacy. Finally, Appellant’s codefendant testified at trial that the pair had robbed the pharmacy, providing specific details that corroborated the other witnesses’ testimony. There was ample evidence, therefore, to sustain Appellant’s conviction even without the introduction of the Arkansas confession.

This court has consistently held that under the Chapman harmless error rule, when evidence of guilt is overwhelming, and the error slight, we can declare the error to be harmless. Baker v. State, 334 Ark. 330, 974 S.W.2d 474 (1998) (holding that introduction of testimony regarding the defendant’s state of mind was harmless error in light of other evidence introduced at trial); Hicks v. State, 327 Ark. 652, 941 S.W.2d 387 (1997) (holding that admission of additional drug paraphernalia was harmless error where there was overwhelming evidence to support the conviction); Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990) (holding that the trial court’s denial of defendant’s motion to suppress evidence was harmless error in light of other overwhelming evidence of guilt). Considering the ample evidence that was properly introduced against him, we hold that any error resulting from the introduction of Appellant’s statement was harmless, and we affirm the conviction.

Jury Instruction

Appellant’s final argument on appeal is that the trial court erred in instructing the jury on meritorious good time because it was confusing and misleading in the present case. Appellant requested that a non-model jury instruction be given to the jury, but he failed to include his proffer of that instruction in the abstract. This court has held that a proffered instruction must be included in the abstract in order for the appellate court to consider it on review. Hood v. State, 329 Ark. 21, 947 S.W.2d 328 (1997); Wallace v. State, 326 Ark. 376, 931 S.W.2d 113 (1996). We therefore do not consider the merits of this argument.

Affirmed.