Brawley v. State , 306 Ark. 609 ( 1991 )

816 S.W.2d 598 (1991) 306 Ark. 609

Joe BRAWLEY, Appellant,
v.
STATE of Arkansas, Appellee.

No. CR 90-59.

Supreme Court of Arkansas.

October 7, 1991.

Henry J. Swift, Osceola, Kent J. Rubens, West Memphis, for appellant.

J. Brent Standridge, Asst. Atty. Gen., Little Rock, for appellee.

NEWBERN, Justice.

The appellant, Joe Brawley, was convicted of murder and sentenced to life imprisonment in connection with the shooting death of his stepfather-in-law, Ray Tittle. He was arrested at the scene of the shooting on May 3, 1988. The evidence showed he had been involved in an on-going altercation with his estranged wife throughout the day, and the couple had exchanged threats. At 9:00 p.m. they were involved in a scuffle at a liquor store broken up by a police officer called to the scene. Brawley was obviously under the influence of intoxicants at that time and was told by the officer to go home. Instead he followed his wife and son to the home of her parents and waited outside in his truck with a 30.06 rifle. When she and her stepfather came out of the house to obtain items from her car Brawley fired in their direction. The bullet struck Mr. Tittle who fell injured behind the car. Brawley's wife ran into the home where her mother was in the process of calling the police. Brawley broke into the house with the rifle. The two women grabbed the gun, and they were all struggling for it when the police arrived. Brawley and the gun were taken into custody. Before being taken away in an ambulance, Mr. Tittle identified Brawley as his assailant. Brawley admitted firing the fatal shot in a statement given shortly after his arrival at the county jail. Some two hours later a blood alcohol test was administered, and Brawley's blood alcohol measured .11%.

On September 27, 1988, Brawley filed a motion requesting a psychiatric evaluation. He could not make bail and had been held in custody since his arrest. The Court granted the request, and an appointment was made for Brawley at the George Jackson Mental Health Center for October 5, 1988. Brawley was not taken to the appointment. A second appointment was set for October 28, 1988. Again, he was not taken to meet the appointment. He was not taken for an evaluation until May 9, 1989, and he was returned to jail on the same day. The report finding him competent for all purposes was received by the Court on July 24, 1989. Brawley remained incarcerated.

Before his trial on September 12, 1989, Brawley made an oral motion in chambers to dismiss the charges due to a violation of his right to a speedy trial. The motion was denied. He also asked the Court to suppress his confession on the ground that he could not, due to his intoxication, make a knowing and voluntary waiver of his rights. Both requests were renewed in a post-trial motion for new trial filed by new counsel. Following a hearing the Trial Court held that, because Brawley requested the psychiatric evaluation, the entire period of time between his request and the receipt of the report was excludable and that he was not too intoxicated to waive his rights and make a voluntary statement.

Brawley contends the Court erred in denying his motion to dismiss for violation of his right to a speedy trial and that the court erred in finding his custodial statements admissible. We affirm the conviction, as there was no violation of the speedy trial guarantee, and the totality of the circumstances indicates that the custodial statement was voluntarily made.

In accordance with our Rule 11(f), the record has been examined to determine the Court made no error prejudicial to the defendant.

1. Speedy trial

Brawley was arrested on May 3, 1988. He argues that he was entitled, pursuant to Ark.R.Crim.P. 28.1(c) and 28.2(a), to be brought to trial by May 3, 1989. Instead he was tried in September, approximately 132 days in excess of the one year period. He contends that, as he was not brought to trial within the speedy trial period set out in Ark.R.Crim.P. 28.1, the State had the burden to show that any delay was the result of Brawley's conduct or was otherwise legally justified. McConaughy v. State, 301 Ark. 446, 784 S.W.2d 768 (1990). At a hearing before trial and on the new trial motion the State argued the delay was the result of Brawley's request for a psychiatric examination.

We have held that under Ark. R.Crim.P. 28.3(a), a period of delay resulting from an examination and hearing on the competency of the defendant is excludable. Nelson v. State, 297 Ark. 58, 759 S.W.2d 215 (1988). In the case now before us, the motion granting the evaluation was entered on September 27, 1988, and the report was filed on July 24, 1989. That is the period the Trial Court excluded. Brawley argues that the period of 9 and % months from the granting of the request to receipt of the report is not excludable because he was not responsible for the fact that he missed his appointment set for October 5, 1988. He argues that the burden of justifying the delay beyond that date shifts back to the State as he was incarcerated at that time and had no control over the matter of keeping the appointment. He points out that there is no explanation offered for the failure of the State to ensure that he arrived at his appointment.

In response to this argument the State asserts that as the oral motion was not made a part of the record and this specific argument was not included in the motion for new trial it is waived and should not be considered. It is clear from the reconstructed record that the Trial Court found to the contrary and ruled that the argument was made in the pretrial motion and again in the new trial motion.

As there is no procedural bar to consideration of this issue, we proceed to consider the argument that the State did not meet its burden by merely raising the period after the motion for psychiatric examination as an excludable period. Brawley's argument continues that once he presented proof that the appellant missed the scheduled appointments, and the Trial Court found that the delay was not attributable to him personally, the burden shifted back to the State to come forward with an explanation. The literal language of Rule 28.-3(a) states simply that the period required by a competency examination is excluded. Brawley cites no authority for his assertion that the burden should shift back to the State, and we are not persuaded by his argument.

2. Suppression of the statement

Brawley argues the blood alcohol test administered some two hours after he gave his statement, and showing that his blood contained .11% alcohol, showed he was too intoxicated to waive his rights voluntarily and intelligently or to make a statement.

All the officers involved in his arrest and in the taking of the subsequent statement testified that, while Brawley had been drinking and the odor of alcohol did emanate from his person, he appeared lucid and to understand what was going on. Their testimony was unequivocal that Brawley did not show any signs of intoxication, that he was completely responsive and coherent, and that there was no coercion or deception involved in the obtaining of the statement.

The test for voluntariness of both the waiver and statement are essentially the same in this case. When a custodial statement is challenged, the State has the burden of proving by a preponderance of the evidence that the statement was voluntarily given. Baker v. State, 289 Ark. 430, 711 S.W.2d 816 (1986). On appeal we make an independent determination of this issue considering the totality of the circumstances and affirm the trial court's ruling unless it is clearly wrong. Fleming v. State, 284 Ark. 307, 681 S.W.2d 390 (1984). In Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), the Supreme Court recognized the inherently coercive nature of custodial waivers and held that a suspect's waiver of rights is valid only if it is made voluntarily, knowingly, and intelligently. The voluntariness requirement is concerned with any sort of coercive or deceptive police activity. The knowledge and intelligence requirements are concerned with the level of comprehension of the accused. Only if the "``totality of the circumstances surrounding the interrogation reveals' both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived." Burin v. State, 298 Ark. 611, 770 S.W.2d 125 (1989); Moran v. Burbine, 475 U.S. 412, at 421, 106 S. Ct. 1135, at 1140, 89 L. Ed. 2d 410 (1986).

In our review of the totality of the circumstances, we defer to the trial court with respect to the credibility of witnesses. Smith v. State, 286 Ark. 247, 691 S.W.2d 154 (1985).

Brawley argues that he was so intoxicated that he does not recollect his statement at all nor does he recall signing the waiver. In a similar case, Hunes v. State, 274 Ark. 268, 623 S.W.2d 835 (1981), the appellant claimed he had taken drugs prior to the time he was interrogated and was unable to remember being questioned or signing the confession. We found the State's evidence that the appellant appeared to be lucid and understood his rights was sufficient and concluded that it was for the Trial Court to weigh the evidence and resolve the credibility of the witnesses. The testimony here suggests that Brawley was sober enough. There is no evidence of any sort of duress. We cannot say the Trial Court was wrong in refusing to suppress the statement. —

Affirmed.

DUDLEY, J., concurs.

DUDLEY, Justice, concurring.

Arkansas R.Crim.P. 28.1(a) provides that an incarcerated defendant is to be tried within nine (9) months or released from incarceration. There is no provision in our Rules stating directly that an incarcerated person is entitled to be tried within one year or discharged absolutely. At least one of our decisions, however, suggests that the provision of Rule 28.1(c), requiring trial within one year of a person "held to bail, or otherwise lawfully set at liberty," applies as well to an incarcerated person. Gooden v. State, 295 Ark. 385, 749 S.W.2d 657 (1988).

Although Brawley is not "at liberty," the State's brief concedes he must be tried within one year unless there are excludable periods. I raise the issue here solely to suggest that our Committee on Criminal Practice may wish to consider reviewing the Rules with a view toward suggesting a change to specify the period within which an incarcerated person must be tried or discharged.