Ronterrio Mayo v. State of Arkansas

2020 Ark. App. 333

• Court: Court of Appeals of Arkansas
• Decided: June 3, 2020
• Status: Published

Opinion

Cite as 2020 Ark. App. 333 Reason: I attest to the ARKANSAS COURT OF APPEALS accuracy and integrity of this document Date: 2021-07-07 12:53:32 DIVISION II Foxit PhantomPDF Version: 9.7.5 No. CR-19-648

Opinion Delivered June 3, 2020 RONTERRIO MAYO APPELLANT APPEAL FROM THE HOT SPRING COUNTY CIRCUIT COURT V. [NO. 30CR-19-34]

STATE OF ARKANSAS HONORABLE CHRIS E WILLIAMS, APPELLEE JUDGE

REBRIEFING ORDERED; MOTION TO BE RELIEVED DENIED

N. MARK KLAPPENBACH, Judge

This is a no-merit appeal filed on behalf of Ronterrio Mayo following his conviction

for being in possession of a prohibited article (a cell phone) while in the custody of a

correctional facility. Mayo’s counsel filed a no-merit brief pursuant to Anders v. California,

386 U.S. 738 (1967), and Arkansas Supreme Court Rule 4-3(k) (2019), along with a motion

to be relieved as counsel. We deny the motion to be relieved and order rebriefing.

A request to withdraw on the ground that an appeal is wholly without merit shall be

accompanied by a brief, including an argument section that consists of a list of all rulings

adverse to the defendant made by the circuit court on all objections, motions, and requests

made by either party together with an explanation as to why each adverse ruling is not a

meritorious ground for reversal. Bohanon v. State, 2020 Ark. App. 22, 594 S.W.3d 92. In

considering a no-merit brief, we must determine whether, after a full examination of the

proceedings, there is any nonfrivolous basis for an appeal. Id. The test for filing a no-merit brief is not whether there is any reversible error but whether an appeal would be wholly

frivolous. See Macleod v. State, 2017 Ark. App. 388. Appellate counsel appropriately discussed

the denial of Mayo’s motion for directed verdict, which challenged the sufficiency of the

evidence to convict Mayo. Appellate counsel has not, however, demonstrated that an appeal

of the denial of Mayo’s pretrial motion to suppress would be wholly without merit, so we

deny counsel’s motion to withdraw and order rebriefing. See Wilson v. State, 2019 Ark. App.

7, 569 S.W.3d 340.

Correctional officers found a cell phone hidden in the wall of a jail cell that was

assigned to Reginald Winston. Mayo gave two statements to correctional officers in which

he said that the phone was not Winston’s, and instead, he (Mayo) was in possession of the

cell phone. In a third statement that he gave to a state police officer months later, after Mayo

had been given Miranda warnings, Mayo said he had used the phone but that it was not his.

Mayo filed a pretrial motion to suppress the first two statements, arguing that he gave those

statements without being advised of his Miranda rights and without being advised that there

would be any type of criminal prosecution.

The first statement was taken by Sgt. Charlene Ashcraft, an officer who was

investigating the cell-phone incident as part of a disciplinary investigation against Winston.

According to Ashcraft, Winston had called Mayo as a witness, she asked if Mayo wanted to

make a statement, and Mayo handwrote on a form that the phone was not Winston’s, that

“it was mine in my possession, [and] he didn’t have anything to do with it[.]” The form

had a disclaimer in type at the bottom, reciting that the statement was made freely, under

no duress, and without undue coercion. Mayo signed and dated the form. Ashcraft

2 admittedly did not give Mayo any Miranda warnings, denied interrogating Mayo, and said

she was “not the police.” Ashcraft believed, however, that she took Mayo’s statement while

he was in isolation.

The second statement was taken by Christopher Tiernan, a prison officer who

recalled that Mayo had been taken into solitary confinement, where Tiernan directed Mayo

to give a statement. Tiernan did not remember if he had advised Mayo of any consequences

that might come from giving a statement, and he did not give Miranda warnings to Mayo.

Tiernan said that if he did advise Mayo of any consequences, it would have been that

“they’re starting to give free world charges for them.” Using an identical form, Mayo

handwrote, “The phone did not belong to R. Winston, it was in my possession.”

Mayo did not testify at this pretrial hearing. Mayo argued that his first two statements

should have been suppressed because they were not preceded by Miranda warnings. See

Miranda v. Arizona, 384 U.S. 436 (1966). The circuit court denied the motion to suppress.

When we review the denial of a suppression motion, this court makes an independent

examination of the evidence based on the totality of the circumstances, and we will not

reverse the circuit court’s decision unless it is clearly against the preponderance of the

evidence. Fricks v. State, 2016 Ark. App. 415, 501 S.W.3d 853.

Miranda warnings are required only in the context of a custodial interrogation. See

Hall v. State, 361 Ark. 379, 206 S.W.3d 830 (2005). Counsel asserts that Mayo was “in

custody” for purposes of Miranda when he made the statements to the correctional-facility

officers but contends that the statements were not the product of an “interrogation.” The

term “interrogation” under Miranda refers not only to express questioning but also to any

3 words or actions on the part of the police (other than those normally attendant to arrest and

custody) that the police should know are reasonably likely to elicit an incriminating response

from the suspect. See id. The test is dependent on the objective circumstances and what a

reasonable person in that person’s situation would have understood under those

circumstances. Id.

Counsel’s no-merit brief does not adequately explain how Mayo, who was alleged

to have been in custody, was not subjected to interrogation as the term is used in the context

of Miranda warnings. The record indicates that Mayo was placed in solitary confinement

following the discovery of the cell phone, and Mayo’s statements were in response to these

correctional officers’ asking Mayo about his involvement with the possession and use of a

contraband item. Counsel’s brief asserts summarily that “the officers only asked Appellant if

he wanted to make a statement. There was no interrogation of Appellant.” Counsel’s brief

fails to adequately explain how there is no issue of arguable merit to be presented in an

appeal of the denial of the motion to suppress.

Accordingly, we deny counsel’s motion to withdraw and order rebriefing.1 Counsel

has thirty days from the date of this opinion in which to submit an appellate brief.

Rebriefing ordered; motion to be relieved denied.

WHITEAKER and VAUGHT, JJ., agree.

Gregory Crain, for appellant.

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

Because we order rebriefing, we need not address Mayo’s pro se points for reversal. 1

See Tennant v. State, 2014 Ark. App. 403, 439 S.W.3d 161. 4