A.H. v. State of Arkansas

2022 Ark. App. 72

• Court: Court of Appeals of Arkansas
• Decided: February 16, 2022
• Status: Published

Opinion

Cite as 2022 Ark. App. 72 ARKANSAS COURT OF APPEALS DIVISION I No. CR-21-359

Opinion Delivered February 16, 2022 A.H. APPELLANT APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT V. [NOS. 23JV-20-201; 23JV-21-141]

STATE OF ARKANSAS HONORABLE TROY B. APPELLEE BRASWELL, JR., JUDGE

AFFIRMED

N. MARK KLAPPENBACH, Judge

The Faulkner County Circuit Court adjudicated juvenile AH delinquent for the

offense of terroristic threatening and committed him to the Division of Youth Services. On

appeal, AH argues that the circuit court erred in admitting testimony about statements he

made to a police officer. We affirm.

AH was on probation in May 2021 when the State filed a delinquency petition

alleging that he had committed the offense of first-degree terroristic threatening. Three

witnesses testified at the adjudication hearing. TH testified that when she and AH were

waiting at the bus stop, AH yelled to her fifteen-year-old brother, CO, that he was going to

pay their house a visit when he got off house arrest. According to TH, AH said that her

brother had “dissed” the “Bomb Squad,” which she said was “kind of a little gang.” Once they were on the bus, TH said that she and AH were arguing and that AH told her that “the

same way that Tracey held a gun to me, he would do the same thing to my brother.” TH

said that Tracey was joking when he held a gun to her head, but she did not know about AH

because he said it with a straight face.

ZT testified that she was friends with TH, and she heard TH and AH arguing on the

bus. ZT said that she heard AH say he was going to shoot up TH and CO’s house because

CO had disrespected the Bomb Squad. ZT testified that TH heard everything that she heard

on the bus.

Conway police officer Derrick Flowers testified that he was assigned as a school

resource officer at Conway High School. Officer Flowers said that he received a call to assist

in Mr. Franklin’s office, and when he arrived at the office, Mr. Franklin was visiting with

AH. After they finished visiting, Flowers said that he asked AH what happened. At this

point in Flowers’s testimony, AH’s counsel requested to voir dire him. During the voir dire,

Flowers testified that he thought AH had done something wrong, that he did not advise AH

of his Miranda rights by way of a juvenile-rights waiver, and that he did not attempt to contact

AH’s father. AH’s counsel then objected to Flowers’s testifying about his conversation with

AH, stating as follows:

[H]e thought that he was checking into some criminal activity. He did not present to my client a juvenile rights waiver or verbally advise him of his rights. And I believe under the statute that absent the written waiver that no testimony can come in.

In response to the State’s questioning, Flowers testified that AH was not in custody

when they spoke. The State then argued that Miranda did not apply. The court agreed that

2 Miranda would not apply because AH was not in custody, but the court wanted to review the

statute referred to by AH’s counsel. AH’s counsel stated that his objection was based on

Arkansas Code Annotated section 9-27-317(h)(1) (Repl. 2020), which provides that “all

waivers of the right to counsel, except those made in the presence of the court pursuant to

subsection (a) of this section, shall be in writing and signed by the juvenile.” Counsel argued

that the statute was “over and above Miranda.” The court took the motion under advisement.

The State’s direct examination of Officer Flowers then resumed. Flowers testified

that he talked to AH in Mr. Franklin’s office and that AH was not handcuffed. AH told

Flowers that he did not threaten anybody, but he had told CO that they could meet up

afterward.

After a brief recess, the court announced that it was denying the defense’s motion to

suppress AH’s statements to Flowers. The court found that the right to an attorney did not

attach during an investigative interview or conversation if the juvenile is not in custody, and

here, the testimony established that AH was not in custody. The court subsequently

adjudicated AH delinquent for the offense of terroristic threatening.

On appeal, AH argues that the circuit court erred in allowing Flowers to testify about

the statements he made because he was in custody and Flowers did not advise him of his

Miranda rights. The State argues that AH’s Miranda arguments were not preserved, and if

they were preserved, there was no custodial interrogation for Miranda purposes. Last, the

State argues that any error was harmless. We agree that even if the circuit court erred in

admitting the testimony, any error was harmless beyond a reasonable doubt.

3 The admission of statements obtained in violation of Miranda may constitute

harmless error when there remains overwhelming independent evidence as to the

defendant’s guilt. Morris v. State, 2016 Ark. App. 546, at 11, 506 S.W.3d 299, 306. To

conclude that a constitutional error is harmless and does not mandate a reversal, this court

must conclude beyond a reasonable doubt that the error did not contribute to the verdict.

Id. The admission of evidence may be considered harmless when there is overwhelming

evidence of guilt, and the error is slight. Id. In determining whether the error is slight, we

look to see if the defendant is prejudiced. Id.

AH argues that the admission of his statement that he told another boy “that they

could meet up afterward” was not harmless. Despite the court’s observation that AH’s

statements “seem to go in favor of the defense,” AH argues that the testimony supported the

State’s position that AH had talked to CO and confirmed TH’s testimony that AH said he

was going to pay her brother a visit. He further argues that TH and ZT gave conflicting

testimony about what was said on the bus.

The State argues that any error in admitting AH’s statements was harmless beyond a

reasonable doubt in light of the eyewitness testimony of the other two students on the bus

directly recounting AH’s threats to harm CO and to shoot up his house. AH was alleged to

have threatened to cause death or serious physical injury or substantial property damage to

another person with the purpose of terrorizing another person. See Ark. Code Ann. § 5-13-

301(a)(1)(A) (Supp. 2021). TH and ZT each testified as to threatening statements that AH

made while arguing with TH. TH testified that AH told her he would hold a gun to CO’s 4 head. ZT testified that AH threatened to shoot up TH and CO’s house. Accordingly, their

testimony provided overwhelming independent evidence as to AH’s guilt. We hold that the

evidence that AH acknowledged speaking to CO while denying making any threats did not

contribute to the court’s finding that AH made a terroristic threat during his argument with

TH. Accordingly, we affirm the adjudication.

Affirmed.

VAUGHT and BROWN, JJ., agree.

Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for appellant.

Leslie Rutledge, Att’y Gen., by: David L. Eanes, Jr., Ass’t Att’y Gen., for appellee.