Edward P. Jones, Special Justice.
William Goodwin Tucker (also known as Billy) age sixteen was convicted of killing his mother and sentenced to ten (10) years imprisonment for second degree murder. His appeal contends that a confession and subsequent admission made by him were not voluntarily obtained.
The evidence indicates that a few minutes after 12:00 a.m. on April 3, 1975, Billy Tucker walked approximately three blocks from a friend’s home in Judsonia, Arkansas to the home of Billy Tucker and bis mother. A short time later he returned to his friend’s home and told the people there that his mother had been killed. Law enforcement authorities were contacted and the investigation reflected that Mrs. Tucker, the mother of Billy Tucker, had been beaten and stabbed to death. During the next two hours Billy Tucker was present at his home with numerous law enforcement officials and was not questioned until approximately 2:00 a.m., when Officer Doug Fogley of the Arkansas State Police arrived at the Tucker home. Officer Fogley advised Billy Tucker of the rights afforded him under the U. S. Constitution and obtained from him a written waiver of those rights. At that time Billy Tucker denied any involvement in the death of his mother.
At approximately 4:00 a.m. the Defendant was placed in a cell in the juvenile section of the jail at Searcy, Arkansas. At approximately 6:00 a.m. Officer Fogley took the Defendant from the cell and fingerprinted and photographed him. A trace metal detection test or TMDT was performed to determine whether or not Defendant’s hands had come into contact with metal.
Following that test Officer Fogley took the Defendant to an office and interrogated him for approximately one hour. During this interrogation, attended only by Officer Fogley and the Defendant, Officer Fogley purposely created, according to his own testimony, a friendly relationship with the Defendant. The Officer advised the Defendant that the trace metal detection test indicated that the Defendant’s hands had come in contact with metal objects during the preceding hours and further advised the Defendant that a latent fingerprint had been found on broken glass near the body of the deceased and that the print would probably turn out to be Defendant’s. It is clear that the purpose of advising the Defendant of the metal test results and the fingerprint was to create the impression with the Defendant that physical evidence existed proving his involvement and guilt. At this interrogation of Billy Tucker, Officer Fogley knew but did not tell the Defendant that the metal test was by no means conclusive evidence that the Defendant had stabbed his mother. He also knew but did not advise the Defendant that the print found on the glass piece was only a partial print and probably could not be determined to belong to the Defendant. It is interesting to note that even if the print had been Defendant’s it also would not have been convincing evidence as to the guilt of the Defendant since the Defendant lived in the house and could easily have touched the glass other than while killing Mrs. Tucker.
Officer Fogley then described to the Defendant his theory of how the crime was committed by the Defendant. Thereafter Defendant indicated that he desired to make a statement and after a witness in addition to Officer Fogley was present the Defendant Billy Tucker admitted the killing of his mother and further described two knives used. After giving this statement the Defendant accompanied the officers to the kitchen of the Tucker home and indicated to the officers the two knives involved.
Billy Tucker was sixteen years of age at the time of his confession and age is a factor to be considered by this Court in determining the voluntariness of a confession.
The Defendant was living with his mother in Judsonia, but his father, William A. Cook, was living in North Little Rock, Arkansas. After hearing of the death of Mrs. Tucker the father traveled from North Little Rock to Judsonia and talked with his son prior to the time Billy Tucker was taken to jail. Mr. Cook testified that he was not aware that Billy was a suspect and also was not aware that he was taken to jail until after the confession was made by his son. He spoke to Officer Fogley at the scene of the crime but did not advise the Officer that he did not want the Officer to speak to his son nor did he make any effort to secure the services of an attorney for his son.
The Defendant did poorly in school. There is substantial evidence in the record as to the mental capabilities and capacity of Billy Tucker.
These three factors, namely, age, lack of a parent or some other adult present during interrogation of the Defendant, and the mental capability of the Defendant are all relevant and are important circumstances surrounding the confession of this Defendant.
The other events which are relevant to the voluntariness of the confession concern what occurred following the death of Mrs. Tucker. Defendant urges that the explanation of Constitutional rights and subsequent waiver thereof occurred in an atmosphere of “noise, confusion and milling about by persons not directly connected with investigation of the crime”. He submits that he was impaired by a lack of sleep and that the interrogation which occurred at 6:00 a.m. in the morning was unjustified. Defendant also contends that no voluntary confession occurred because of the length of the interrogation, the false friendly relationship created by the interrogating officer and the trickery and false statements made to the Defendant by the officer.
Undoubtedly, the atmosphere and scene at the Tucker home during the initial investigation of the death and questioning of the Defendant were not ideal circumstances for the interrogation of a witness. However, there is no evidence in this record that the Defendant was not able to hear and understand his rights as they were explained to him or that he did not understand and intelligently waive these rights. As previously mentioned, Defendant at that time denied any involvement in the crime.
it may be true that Defendant was tired from lack of sleep at 6:00 a.m. on April 3, 1975 when the confession was made. But we cannot conclude and the evidence does not indicate that the interrogation of approximately one hour caused truthfulness to be compromised by fatique.
Defendant urges that the several factors set forth above constitute a “totality of circumstances surrounding the confession”, which, when considered together, render this confession and subsequent admissions involuntary. This appeal argues that when all circumstances relating to his confession are examined the conclusion must be reached that the State has failed in its burden of showing a knowing and intelligent waiver of Defendant’s right to counsel and right to remain silent under the principles set forth in Miranda v. Arizona, 384 U.S. 470 (1966). The Defendant contends that allowing the confession and subsequent admission concerning the two knives into evidence was error.
The right of an individual to remain silent and to have available the assistance of counsel is well established. When an in-custody confession is obtained and the voluntariness of a confession challenged we make an independent determination of the issue from a review of the entire record and in making such a review look to the totality of the circumstances surrounding the confession.
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Edward P. Jones, Special Justice.
William Goodwin Tucker (also known as Billy) age sixteen was convicted of killing his mother and sentenced to ten (10) years imprisonment for second degree murder. His appeal contends that a confession and subsequent admission made by him were not voluntarily obtained.
The evidence indicates that a few minutes after 12:00 a.m. on April 3, 1975, Billy Tucker walked approximately three blocks from a friend’s home in Judsonia, Arkansas to the home of Billy Tucker and bis mother. A short time later he returned to his friend’s home and told the people there that his mother had been killed. Law enforcement authorities were contacted and the investigation reflected that Mrs. Tucker, the mother of Billy Tucker, had been beaten and stabbed to death. During the next two hours Billy Tucker was present at his home with numerous law enforcement officials and was not questioned until approximately 2:00 a.m., when Officer Doug Fogley of the Arkansas State Police arrived at the Tucker home. Officer Fogley advised Billy Tucker of the rights afforded him under the U. S. Constitution and obtained from him a written waiver of those rights. At that time Billy Tucker denied any involvement in the death of his mother.
At approximately 4:00 a.m. the Defendant was placed in a cell in the juvenile section of the jail at Searcy, Arkansas. At approximately 6:00 a.m. Officer Fogley took the Defendant from the cell and fingerprinted and photographed him. A trace metal detection test or TMDT was performed to determine whether or not Defendant’s hands had come into contact with metal.
Following that test Officer Fogley took the Defendant to an office and interrogated him for approximately one hour. During this interrogation, attended only by Officer Fogley and the Defendant, Officer Fogley purposely created, according to his own testimony, a friendly relationship with the Defendant. The Officer advised the Defendant that the trace metal detection test indicated that the Defendant’s hands had come in contact with metal objects during the preceding hours and further advised the Defendant that a latent fingerprint had been found on broken glass near the body of the deceased and that the print would probably turn out to be Defendant’s. It is clear that the purpose of advising the Defendant of the metal test results and the fingerprint was to create the impression with the Defendant that physical evidence existed proving his involvement and guilt. At this interrogation of Billy Tucker, Officer Fogley knew but did not tell the Defendant that the metal test was by no means conclusive evidence that the Defendant had stabbed his mother. He also knew but did not advise the Defendant that the print found on the glass piece was only a partial print and probably could not be determined to belong to the Defendant. It is interesting to note that even if the print had been Defendant’s it also would not have been convincing evidence as to the guilt of the Defendant since the Defendant lived in the house and could easily have touched the glass other than while killing Mrs. Tucker.
Officer Fogley then described to the Defendant his theory of how the crime was committed by the Defendant. Thereafter Defendant indicated that he desired to make a statement and after a witness in addition to Officer Fogley was present the Defendant Billy Tucker admitted the killing of his mother and further described two knives used. After giving this statement the Defendant accompanied the officers to the kitchen of the Tucker home and indicated to the officers the two knives involved.
Billy Tucker was sixteen years of age at the time of his confession and age is a factor to be considered by this Court in determining the voluntariness of a confession.
The Defendant was living with his mother in Judsonia, but his father, William A. Cook, was living in North Little Rock, Arkansas. After hearing of the death of Mrs. Tucker the father traveled from North Little Rock to Judsonia and talked with his son prior to the time Billy Tucker was taken to jail. Mr. Cook testified that he was not aware that Billy was a suspect and also was not aware that he was taken to jail until after the confession was made by his son. He spoke to Officer Fogley at the scene of the crime but did not advise the Officer that he did not want the Officer to speak to his son nor did he make any effort to secure the services of an attorney for his son.
The Defendant did poorly in school. There is substantial evidence in the record as to the mental capabilities and capacity of Billy Tucker.
These three factors, namely, age, lack of a parent or some other adult present during interrogation of the Defendant, and the mental capability of the Defendant are all relevant and are important circumstances surrounding the confession of this Defendant.
The other events which are relevant to the voluntariness of the confession concern what occurred following the death of Mrs. Tucker. Defendant urges that the explanation of Constitutional rights and subsequent waiver thereof occurred in an atmosphere of “noise, confusion and milling about by persons not directly connected with investigation of the crime”. He submits that he was impaired by a lack of sleep and that the interrogation which occurred at 6:00 a.m. in the morning was unjustified. Defendant also contends that no voluntary confession occurred because of the length of the interrogation, the false friendly relationship created by the interrogating officer and the trickery and false statements made to the Defendant by the officer.
Undoubtedly, the atmosphere and scene at the Tucker home during the initial investigation of the death and questioning of the Defendant were not ideal circumstances for the interrogation of a witness. However, there is no evidence in this record that the Defendant was not able to hear and understand his rights as they were explained to him or that he did not understand and intelligently waive these rights. As previously mentioned, Defendant at that time denied any involvement in the crime.
it may be true that Defendant was tired from lack of sleep at 6:00 a.m. on April 3, 1975 when the confession was made. But we cannot conclude and the evidence does not indicate that the interrogation of approximately one hour caused truthfulness to be compromised by fatique.
Defendant urges that the several factors set forth above constitute a “totality of circumstances surrounding the confession”, which, when considered together, render this confession and subsequent admissions involuntary. This appeal argues that when all circumstances relating to his confession are examined the conclusion must be reached that the State has failed in its burden of showing a knowing and intelligent waiver of Defendant’s right to counsel and right to remain silent under the principles set forth in Miranda v. Arizona, 384 U.S. 470 (1966). The Defendant contends that allowing the confession and subsequent admission concerning the two knives into evidence was error.
The right of an individual to remain silent and to have available the assistance of counsel is well established. When an in-custody confession is obtained and the voluntariness of a confession challenged we make an independent determination of the issue from a review of the entire record and in making such a review look to the totality of the circumstances surrounding the confession. However, we will not set aside the finding of voluntariness by the trial court unless the finding is clearly against the preponderance of the evidence. Degler v. State, 257 Ark. 388, 517 S.W. 2d 514 (1974).
In Moseley v. State, 246 Ark. 358, 438 S.W. 2d 311, we concluded that youth of a defendant does not prevent the giving of voluntary confession or the intelligent, knowing waiver of his Constitutional rights. In Shepherd v. State, 239 Ark. 785, 394 S.W. 2d 624 cert. den., 387 U.S. 923, 87 S. Ct. 2038, 18 L. Ed. 2d 977; Dewin v. State, 114 Ark. 472, 170 S.W. 582; and Mitchell v. State, 206 Ark. 149, 174 S.W. 2d 241, lack of education standing alone has been held insufficient to establish that a confession or waiver of rights was involuntary. Although some states require a parent, counsel or guardian present when a juvenile is questioned, such a requirement does not exist in Arkansas. Moseley v. State, supra. Therefore, although relevant, the evidence regarding age, mental capability and lack of adult protection is not persuasive to find an involuntary confession.
The crucial aspects of this case and certainly the two matters which have been most emphatically argued by this Defendant concern the relationship between Defendant and Officer Fogley created and cultivated by Officer Fogley and the statements made by Officer Fogley to the. Defendant concerning fingerprints and the trace metal detector test. It is asserted that these two elements, coupled with the events previously discussed above, bring into being a “totality of circumstances” rendering the confession involuntary. We do not agree with this conclusion.
Officer Fogley testified that after fingerprinting and photographing the Defendant and conducting the metal test he took the Defendant to his office and they talked together alone for one hour prior to the confession. That scene is described by Officer Fogley and in essence substantiated by the testimony of Defendant. Officer Fogley attempted to gain the confidence of the Defendant. He described his relationship with Defendant as that of a “dutch uncle.” He stated that he attempted to “love him to death,” and that the information concerning the fingerprints and the metal test were probably a “ruse” and “con. ” This friendly relationship is seen by Defendant in his appeal as creating a notion in the mind of Defendant that by making a confession he could expect leniency and that the fingerprint and metal detection information was a trick or artifice which violates notions of fair play and which are impermissible in Arkansas. He cites as authority Brown v. State, 198 Ark. 921, 132 S.W. 2d 15 (1939). As a review of that case will show, the Defendant in Brown was clearly subjected to duress and coerced into making the purported confession. Such simply did not occur with the Defendant here, Billy Tucker. Limitations on the use of trickery and deceit by law enforcement officers have been considered by the United States Supreme Court as well as by courts of other jurisdictions. In Frazier v. Cupp, 394 U.S. 734 (1969), the opinion by Justice Marshall stated:
“After the questioning had begun and after a few routine facts were ascertained, petitioner was questioned briefly about the location of his Marine uniform. He was next asked where he was on the night in question. Although he admitted that he was with his cousin Rawls, he denied being with any third person. Then petitioner was given a somewhat abbreviated description of his Constitutional rights. He was told that he could have an attorney if he wanted one and that anything he said could be used against him at trial. Questioning thereafter became somewhat more vigorous, but petitioner continued to deny being with anyone but Rawls. At this point, the officer questioning petitioner told him, falsely, that Rawls had been brought in and that he had confessed. Petitioner still was reluctant to talk, but after the officer sympathetically suggested that the victim had started a fight by making homosexual advances, petitioner began to spill out his story. Shortly after he began he again showed signs of reluctance and said, ‘I think I had better get a lawyer before I talk any more. I am going to get into trouble more than I am in now.’ The officer replied simply, ‘You can’t be in any more trouble than you are in now,’ and the questioning session proceeded. A full confession was obtained and, after further warnings, a written version was signed.” (Emphasis added.)
The Court concluded:
“The fact that the police misrepresented the statements that Rawls had made is, while relevant, insufficient in our view to make this otherwise voluntary confession inadmissible.”
In the case of Moore v. Hopper, 389 F. Supp. 931 (M.D. Ga. 1974) the court was asked to determine whether or not a false statement to an accused by a law enforcement officer that the murder weapon had been obtained, was such fraud, deceit or trickery as to cause a subsequent confession to be inadmissible. There the court concluded that confessions are not inadmissible when obtained by such methods, provided the means employed are not calculated to procure an untrue statement and provided further than the confession is otherwise freely and voluntarily made. See also Moore v. State, 230 Ga. 839, 199 S.E. 2d 243 (1973); Hudson v. State, 153 Ga. 695, 113 S.E. 519.
Therefore, we conclude that the friendly relationship created by Officer Fogley in this case did not cause a false hope of leniency in this Defendant. Furthermore, we also con-elude that the misleading statements concerning the fingerprint did not prompt or cause Billy Tucker to make an untruthful confession.
In summary, we find that when considering the “totality of circumstances” surrounding the obtaining of the confession of Billy Tucker that the cumulative effect of the particular characteristics of this individual Defendant as well as the events relevant to and surrounding his confession do not constitute duress or coercion. This Defendant was advised of his right to remain silent and his right to counsel but did not choose to avail himself of those opportunities. Actually, his own statement reflects that he was entirely familiar with the procedure of being “given his rights” by police officers, stating that on prior occasions he “wouldn’t doubt” but that his rights had been explained to him more than six times and that he understood them even before they were explained on the occasion in question.
This judgment is affirmed.
Fogleman and Holt, JJ., dissent. Hickman, J., not participating.