Mansel v. State

1991 OK CR 12, 805 P.2d 677, 1991 Okla. Crim. App. LEXIS 19, 1991 WL 7557

• Court: Court of Criminal Appeals of Oklahoma
• Decided: January 25, 1991
• Docket: F-87-320
• Status: Published

Opinions

ORDER

The Appellant, Walton Mansel a/k/a Jack Mansel, Walton Washington Mansel, was charged and convicted in the District Court of Comanche County, Case No. CRF-86-407, of Possession of a Controlled Dangerous Substance With Intent to Distribute, After Former Conviction of Two or More Felonies. Punishment was set in accordance with the jury’s recommendation at 101 years’ imprisonment.

On June 23, 1986, Walton Mansel was arrested on the charge of possession of a controlled dangerous substance with intent to distribute after former conviction of two or more felonies. At that time, Lawton Police Detective Dennis Harris, acting on behalf of the Lawton Police Department, agreed to forego the filing of said charge on the condition that Appellant assist the Department in further narcotics investigations and “if he provided us with the individual and the contraband that he said he could ...”

Detective Harris testified that the Appellant did provide him with information and that they were in contact numerous times up to a day or two before Appellant’s second arrest on August 10, 1986. Detective Harris further testified that to his knowledge, there was never any communication to the Appellant that the agreement was off.

John Whittington, a detective with the Lawton Police Department, testified that on August 10, 1986, the Appellant voluntarily came to the station at the request of the detective. He testified that Appellant was there “to be interviewed about a kidnapping and assault with a deadly weapon, simple assault and extortion” and “he also had possession of marijuana with intent.” It was while Appellant was in the conference room waiting to be interviewed on the aforementioned charges that Detective Whittington became aware that there was a warrant out for Appellant’s arrest on the charge (1) for which he was arrested on June 23, 1986, (2) which Detective Harris agreed not to file and (3) the conviction of which is the subject of this appeal.

The detective further testified that prior to interviewing the Appellant on the “August 10th” charges, he advised the Appellant of his rights. The Appellant at that time requested to speak with Detective Harris and was told that Dennis Harris did not want to talk to him. Thereupon, the Appellant requested an attorney and the interview was terminated.

The detective began walking Appellant up to the jail to book him in on the “June 23rd” charge when Appellant changed his mind and agreed to talk to him about the “August 10th” charges. The Appellant was advised of his rights and waived same. In his effort to explain the circumstances leading up to the “August 10th” charges, the Appellant apprised Detective Whitting-ton of the circumstances attendant upon his past and present working relationship with Detective Harris and the Lawton Police Department. In relating said circumstances, the Appellant stated that he had been dealing in amphetamines out of his service station for quite some time. It is the introduction and admission of this statement that Appellant contends was error.

The Appellant asserts that this statement should not have been admitted since it was an involuntary confession and also a part of plea negotiations.

It is important to note that Detective Harris nor anyone else associated with the department contacted the defendant and told him that any agreement as to information and the workout of a plea bargain was cancelled or revoked. Defendant worked for approximately one and one-half months under the assumption that the plea bargain was in force and effect. Nor was the Appellant even told during the interview on June 23, 1986, that the agreement was off and that this agreement as it relates to the “August 10th” charges was in jeopardy.

Appellant asserts that his statements given to the detective should not have been admitted since they were involuntary and that they were a part of a plea negotiation. The U.S. Supreme Court has held that once an attorney is requested, further discussion must cease and the only time that a discussion can be started again is if the defendant voluntarily starts such discussion in what the court basically considers a second encounter. Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). The U.S. Supreme Court has held that once the request for an attorney is made, the “bright-line rule” goes into effect and all questioning must cease after an accused requests counsel. The trial court must determine whether or not the defendant voluntarily initiated the second encounter when the defendant on being taken to jail, supposedly changed his mind and agreed to talk to the detective relative to the “August 10th” charges. From the record, it is impossible to determine whether or not this was, in fact, a voluntary waiver as it relates to such confession and, further, whether the statements were made pursuant to a plea bargain arrangement. If so, again, the statements would not be voluntary and, therefore, inadmissible.

This particular problem was discussed by Judge Parks in the case of Hopper v. State, 736 P.2d 538 (Okl.Cr.1987) whereby this Court adopted the so-called “Massachusetts Rule”. The trial judge will have to determine whether the confession was voluntary or involuntary. Thereafter, if the court determines it is involuntary, then it is inadmissible. If the confession is determined to be voluntary, the question of voluntariness is submitted to the jury together with all of the facts and circumstances surrounding the confession. Yelloweagle v. State, 551 P.2d 1130 (Okl.Cr.1976). The court at the same time should determine the nature of the plea bargain arrangement between the defendant and Detective Harris. The court could at an evidentiary hearing determine if there was, in fact, a plea bargain arrangement. If such was the case this, of course, would assist the court in determining whether or not the statements or confessions were, m fact, voluntary. The court should also inquire into the facts surrounding not only the agreement but what the defendant did as it related to the agreement or at least his understanding of the agreement. The State should not be in the position to enter into a plea bargain arrangement and then change at any point during the arrangement saying the parties had not done enough or brought enough information forward. The options of the police department as well as the defendant need to be examined as to what the agreement was and what the defendant did as it relates to such agreement.

IT IS THE ORDER OF THIS COURT that this matter is REMANDED to the District Court of Comanche County, Oklahoma, for such court to hold an evidentiary hearing to determine whether or not the Appellant made a free and voluntary confession, whether or not the confession came from a second or subsequent encounter and was freely made and, if so, whether the statements were made pursuant to a plea bargain arrangement which would make same involuntary. Such hearing and the transcript-thereof shall be forwarded to this Court within ninety (90) days of this order.

IT IS SO ORDERED.

/s/James F. Lane JAMES F. LANE, Presiding Judge dissenting.

/s/Gary L. Lumpkin GARY L. LUMPKIN, Vice Presiding Judge

/s/Ed Parks ED PARKS, Judge

/s/Tom Brett TOM BRETT, Judge

/s/Charles A. Johnson CHARLES A. JOHNSON, Judge