Walden v. State

419 S.W.3d 739, 2012 Ark. App. 307, 2012 Ark. App. LEXIS 427
CourtCourt of Appeals of Arkansas
DecidedMay 2, 2012
DocketNo. CA CR 11-240
StatusPublished
Cited by4 cases

This text of 419 S.W.3d 739 (Walden v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Walden v. State, 419 S.W.3d 739, 2012 Ark. App. 307, 2012 Ark. App. LEXIS 427 (Ark. Ct. App. 2012).

Opinion

ROBIN F. WYNNE, Judge.

| tLarry Eugene Walden appeals from his conviction on a charge of aggravated robbery. This case was originally submitted to this court in no-merit form. Counsel’s motion to withdraw was denied and rebriefing was ordered. Walden v. State, 2012 Ark. App. 38, 2012 WL 76163. The case has now been submitted with a merit brief. In his brief, appellant alleges error regarding the trial court’s denial of his motion to suppress his custodial statement, the trial court’s instructions to the jury during both the guilt and sentencing phases, the trial court’s denial of his motions for a directed verdict, and the trial court’s denial of his motion for a new trial. We affirm the judgment of the trial court.

Appellant was charged with one count of aggravated robbery. In the information, the State sought to have appellant sentenced as a habitual criminal. The State filed a motion in limine on October 27, 2010, in which it sought to exclude certain testimony regarding appellant’s prior convictions for bank robberies he committed in Oklahoma and the sentences |ahe received. On December 20, 2010, appellant filed a motion to suppress statements he made while in custody and evidence seized during a search of his hotel room following his arrest. Appellant also filed a motion to strike Count II of the information, wherein the State sought to have him sentenced as a habitual offender.

At the hearing on appellant’s motion to suppress, appellant testified that he was arrested three days after the robbery in question was committed by as many as ten officers in Dardanelle at a motel where he was staying. When appellant was arrested, he was fifty-seven years old and a high-school graduate. Appellant claimed that when he was handcuffed behind his back, he experienced a lot of pain. Appellant said that when he brought this to the officers’ attention, he was told that they were waiting on search warrants and if he consented to a search of his hotel room and his truck; it would save time. Appellant testified that he considered that statement to be an inducement to give consent. Appellant later testified that he initially indicated to the officers that he would give consent if they would handcuff him in front. Appellant remembered signing the consent.

According to appellant, he is an alcoholic, and at the time he was arrested he had been drinking heavily, although he later stated that he had not consumed any alcohol for five to six hours prior to his arrest. Appellant stated that in the three days between the robbery and his arrest, he had consumed three large bottles of vodka. He stated that the bottles were in his room, but they were not among the items seized by police during the search despite his request that they be taken. Appellant was driven back to Fort Smith. He stated that an FBI |sagent was driving and Detective Ron Seamardo1 was riding next to him in the backseat. During the trip, Det. Seamardo took a statement from appellant, during which appellant admitted to robbing the bank. Appellant claimed that he told Det. Seamardo three times that he wanted an attorney before his statement was taken. Appellant stated that he also told the detective that he was intoxicated. Appellant testified that he did not remember signing a Miranda form, although that form and the consent form reflect that they were signed within two minutes of each other.

Captain John Foster with the Yell County Sheriffs Department testified that he assisted in the arrest of appellant. Captain Foster did not remember appellant stating that the handcuffs were causing him pain. Captain Foster denied that any promises were made to get appellant to sign the consent. He testified that appellant appeared calm and lucid and that he did not appear to be intoxicated. Captain Foster did not remember appellant saying anything about vodka bottles, nor did he see any vodka bottles, although he did not search the room.

Detective Seamardo testified that appellant gave verbal consent to search his hotel room and signed both the consent and the Miranda form after he read them to appellant. Detective Seamardo stated that appellant never complained about discomfort in his shoulder, nor were his handcuffs adjusted in order to obtain consent. Appellant did not appear to be intoxicated to Det. Seamardo, although he did smell a slight odor of intoxicants on appellant. Detective Seamardo stated that appellant never requested an attorney in his presence. He pdenied that there were any FBI personnel at the scene of the arrest and stated that, during the trip from Dar-danelle to Fort Smith, the vehicle was driven by a Major Boyd. Detective Sca-mardo seized $859 in cash from the robbery from appellant’s wallet.

Major Chris Boyd with the Fort Smith Police Department testified that he drove appellant and Det. Scamardo to Fort Smith. Major Boyd denied ever hearing appellant ask for an attorney. Major Boyd also denied that he or anyone else with him identified themselves as an FBI agent or showed FBI credentials.

The trial court found that appellant freely and voluntarily gave both his statement and the consent to search. Appellant’s motion to suppress was denied.

At trial, Elsie Yarborough testified that she was working as a teller at a First National Bank in Fort Smith on June 12, 2009, when a man she later identified as appellant came into the bank. Appellant handed Ms. Yarborough a bag with a note taped to it that read, “This is a robbery. I have a gun. Give me all your money, no red dye pack.” Ms. Yarborough stated that at first she thought it was a joke but realized appellant was serious when she looked up and he was staring at her with a “menacing scowl” on his face. She took the money out of her drawer and put it in the bag. Ms. Yarborough activated a silent alarm as soon as appellant left the bank. Ms. Yarborough never saw a gun but gave appellant the money due to the implied threat on her life.

Detective Scamardo testified that Ms. Yarborough picked appellant out of a photo lineup. He testified, as he had in the earlier hearing, that appellant signed a consent to search Rand a Miranda, form after those documents were read to him. A DVD recording of the statement appellant gave to Detective Scamardo was played for the jury.

After the State rested, appellant moved for a directed verdict, which was denied by the trial court. In appellant’s case-in-chief, Detective Tammy DeMeir with the Fort Smith Police Department testified that she arrived at the bank about twenty minutes after the robbery. Detective De-Meir took a recorded statement from Ms. Yarborough. A DVD recording of Ms. Yarborough’s statement was played for the jury. After he rested, appellant renewed his directed-verdict motion, which the court denied again.

Prior to the instruction of the jury by the trial court, appellant requested an instruction on the lesser-included offense of robbery. The trial court declined to give the instruction on robbery. The jury found appellant guilty of aggravated robbery. After the verdict was reached, the trial court entered into evidence a certified copy of a judgment from the Eastern District of Oklahoma reflecting that appellant had been convicted on three prior counts of robbery. Appellant proffered a sentencing instruction in which he requested that the jury be informed of the nature of his three prior felony convictions and the sentences he received. The trial court refused the instruction.

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Related

Finfrock v. State
2017 Ark. App. 90 (Court of Appeals of Arkansas, 2017)
Walden v. State
2016 Ark. 306 (Supreme Court of Arkansas, 2016)
Weaver v. State
2014 Ark. App. 396 (Court of Appeals of Arkansas, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
419 S.W.3d 739, 2012 Ark. App. 307, 2012 Ark. App. LEXIS 427, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walden-v-state-arkctapp-2012.