Colston v. State ( 2001 )

Ray Thornton, Justice.

Appellant, Stephen John Colston, entered a conditional plea of guilty to first-degree battery, in violation of Ark. Code Ann. § 5-13-201 (a) (3) (Repl. 1997), pursuant to Ark. R. Crim. P. 24.3(b) (2000). The battery charge, a class A felony, was enhanced by Ark. Code Ann. § 5-74-108 (Repl. 1997), engaging in violent criminal activity. The trial court accepted appellant’s guilty plea and sentenced appellant to eight years in the Arkansas Department of Correction. Before appellant entered his conditional plea, he filed a motion to suppress. The trial court denied appellant’s motion, but allowed him to appeal the adverse determination of the suppression issue. For his sole allegation of error, appellant argues that the trial court erred in denying his motion to suppress his statement based upon an alleged illegal arrest. We affirm the trial court.

I. Facts

On April 10, 2000, Benton High School principal, John Dedman, reported to the Benton Police Department that a student, K.F., had been stabbed in the abdomen and had been transported to Saline Memorial Hospital for treatment. Witnesses stated that K.F. was getting into a vehicle when a white female asked her if she was “Nap.” When K.F. responded in the affirmative, the female began hitting her. H.F., K.F.’s sister, attempted to intervene, and the woman stabbed K.F. with a knife. The young woman swung the knife at H.F., but did not make contact. The woman then got into a nearby van, driven by a white male, and left the scene.

Witnesses at the scene described the woman as an overweight white female with red hair, and the driver as a white male with blond hair who wore a white baseball cap. They also described the van as gray, bearing an Arkansas license place with the number, 090-BTK. A police check of the license plate showed the vehicle belonging to an individual named Colston who lived at 6 Crest Lane in North Litde Rock. Law enforcement agencies in Pulaski County were notified of this incident. They attempted to locate the vehicle at that address, but were unsuccessful.

Jim Andrews, a lieutenant with the Saline County Sheriffs Department and supervisor of the Criminal Investigation Division, testified that, on the next day, April 11, 2000, he assisted in the investigating the stabbing incident at Benton High School. After speaking with several witnesses and obtaining the license plate number of the van, he and Sergeant Carty and two investigators headed toward the residence.

On their way to the residence, Detective Mike Frost of the Saline County Sheriffs Department radioed that he was going to Cabot on another related case, and Lieutenant Andrews asked Detective Frost if he would go to the residence because he was so close to the location. Detective Frost was given the descriptions of the two individuals involved at the Benton High School stabbing.

Detective Frost testified that when he got the call from his supervisor, Lieutenant Andrews, he went to the address in North Litde Rock under his instructions. He further testified that when he got to North Little Rock, he contacted the Pulaski County Sheriffs Office to determine where the residence was located. When he arrived on the scene, the van was not there, but he saw the name, “Colston,” on a wooden name board on the front porch. Detective Frost then advised Lieutenant Andrews of these facts, and Lieutenant Andrews directed the detective to make contact with anyone inside the house.

Detective Frost further testified that when a female who matched the description answered the door, he placed handcuffs on her, placed her inside his vehicle, and took her into custody. She did not, at any time, contest the validity of her detention, but identified herself as Latrina Garris, and told the detective that appellant, Stephen Colston, was asleep inside the residence. Detective Frost contacted the Pulaski County Sheriffs Office and advised them that he needed a deputy at the location to make contact with the subject in the house. The Pulaski County deputy arrived ten minutes after Detective Frost made the call.

When the two officers approached the residence, appellant was at the door. Detective Frost identified himself and told appellant that he was investigating a stabbing incident. He also told appellant that officers from Benton Police Department were en route. Detective Frost then went out to the police car where Garris was. He mirandized her and asked her about the location of the van. She responded that appellant’s mother had it at work.

At that time, a gray van pulled into the driveway driven by a woman who identified herself as Gail Colston, appellant’s mother. Detective Frost asked her if she had driven the van to work on Monday, April 10, and she stated that her daughter, Elizabeth Colston, had driven her to work at 8:30 a.m. on Monday morning and that her daughter had left the van for appellant to drive that day. Detective Frost then testified that he asked Elizabeth Colston some questions. He stated that she said that appellant had spoken with his cousin, Alex, the previous evening for “a long, long time.” She did not hear the conversation.

Detective Frost testified that, after Gail Colston arrived, Lieutenant Andrews and Detective Mike Montgomery of the Benton Police Department and Detective Marvin Hodges of the Saline County Sheriff Department arrived. After Detective Frost advised them of the situation, Detective Montgomery went to the vehicle to see Garris. Detective Frost told the officer that she had been mirandized. According to Detective Frost’s testimony, Detective Montgomery asked Garris if she had done the stabbing, and she responded, “I did it.” Detective Frost took five photographs of the van and turned the film over to Detective Montgomery.

Detective Frost also testified that Lieutenant Andrews obtained a consent to search from appellant’s mother. Detective Frost found a twenty-dollar bill and four ten-dollar bills lying beside appellant’s bed. He also found several notes written by Garris to appellant. These items were handed over to Lieutenant Andrews. Detective Frost further testified that he and Detective Montgomery transported Garris while Lieutenant Andrews and Detective Hodges transported appellant to the Benton Police Department.

At the Benton Police Department, Garris confessed that she had stabbed K.F., but had not meant to do so. She stated that she only meant to “beat her ass” because she had “narcked” on some people in court several weeks before. Garris stated that she committed the act for Alex Barnard, appellant’s cousin, who paid her $100. Garris said that she had never met K.F. before and knew her only as “Nap.” She stated that she pulled the knife after K.F.’s sister jumped on her. She further stated that, after the incident, she left with appellant. She stated that she was paid $100 on that Monday night.

While at the Benton Police Department, appellant stated that he wanted to make a statement. He said that his cousin, Alex Barnard, called him on Sunday night. Appellant spoke briefly with Barnard and handed the telephone to Garris. Appellant stated that he then fell asleep. He also said that he drove to the school and waited. He saw Garris confront K.F. When he started honking the horn, Garris got in the van, and the two drove back to North Little Rock. Appellant went to work that night, and Garris stayed home.

On cross-examination, Detective Frost admitted that when he was in North Little Rock, he was outside of his jurisdiction. With regard to appellant, Detective Frost stated:

As my report reflects, [as] the Pulaski County deputy arrived, a white male came to the door and I detained him for investigative purposes. He was not free to leave because he fit the general description that he matched. We did not arrest him per se but he was not free to leave the house. I detained him for “investigative purposes” the minute he came to the door. The Pulaski County deputy was with me and we were both walking up on the porch when we saw him. The Pulaski County deputy did not do anything but he was there with me. The van arrived approximately fifteen minutes later. I turned the notes I found over to the Benton Police Department. I was not present when Detective Montgomery advised Mr. Colston of [his] Miranda rights.

Detective Mike Montgomery of the Benton Police Department testified that appellant’s mother called an attorney, and the attorney spoke to appellant. After Detective Montgomery read appellant his Miranda rights, appellant stated that he did not want to make a statement at that point. Detective Montgomery testified that he arrested appellant on the basis that he matched the description of the driver of the vehicle in the Benton High School stabbing.

Detective Montgomery testified that he transported appellant to the Benton Police Department. He stated:

Stephen’s parents wanted to speak with me with Stephen there so the four of us went in an interview room. Stephen’s father wanted to know what Stephen could do to help. Just in general conversation, I said I’m not going to talk to him but his cooperation is something that is always taken into consideration. I never attempted to ask Stephen any questions. This took place a half an hour or less. The conversations with his parents concerned the amount of bond, if he were allowed to make bond, what steps they could take, etc. I never told his parents that if he cooperated he would get some specific consideration. There were no promises or deals or guarantees made. As I escorted Stephen to the holding cell, and his parents were going out into the lobby, Stephen asked me, as I opened the door to his cell, if he could still talk to me. There was no intention on my part of questioning him any more since he had already indicated that he did not want to do that. He told me that he wanted to give me his side of the story so I told him I would listen. We went back to the interview room and I went over another Miranda rights form, the same way I went over the last one, having him initial each right [on the form].

Detective Montgomery then recorded the statement on an audio tape and a video tape. Detective Montgomery admitted that there is no mention of an initial request for counsel in the affidavit.

Detective Greg Little of the Benton Police Department also testified at the suppression hearing. On cross-examination, Detective Little testified that he wrote the affidavit for appellant’s arrest. He stated, “There is nothing in the affidavit that he declined to make a statement by invoking his right to counsel.”

At the suppression hearing, appellant testified on his own behalf. He testified that he remembered being readvised of his Miranda rights at the jail at approximately 5:00 p.m. that evening by Detective Montgomery. Appellant stated, “[Detective Montgomery] told me that it would help me out on my charge if I would make a statement. He did not tell me how it would help out. He said he could not help me if he did not hear my side of the story.” On cross-examination, appellant testified, “I would agree that if the statement I made was suppressed, it would help my case.” Appellant’s mother, Gail Colston, testified on her son’s behalf at the suppression hearing. Her testimony supports that of the appellant.

After hearing arguments from appellant’s counsel and the State, the trial court denied appellant’s motion to suppress from the bench. Appellant and the State agreed, pursuant to Ark. R. Crim. P. 24.3, to a conditional plea of guilty. In its order, the trial court states that appellant “wifi also be allowed to appeal the adverse determination of the suppression issue to the Arkansas Supreme Court and/or Court of Appeals.” On appeal, appellant argues that his statement should have been suppressed as the fruit of the poisonous tree of an illegal arrest by officers outside their jurisdiction.

II. Rule 24.3(b)

This case was certified to us by the court of appeals on the grounds of Ark. R. Crim. P. 24.3(b). Arkansas Rule of Criminal Procedure 24.3(b) provides:

(b) With the approval of the court and the consent of the prosecuting attorney, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right, on appeal from the judgment, to review of an adverse determination of a pretrial motion to suppress evidence. If the defendant prevails on appeal, he shall be allowed to withdraw his plea.

Id. (emphasis added).

As a general rule, one is not allowed to appeal from a conviction resulting from a guilty plea, aside from jurisdictional defects. Ark. R. App. P. — Crim. 1(a). However, “Rule 24.3(b) presents an exception to the rule hut only for the purpose of determining on appeal whether an appellant should be allowed to withdraw her plea if it is concluded that evidence should have been, but was not suppressed.” Wofford v. State, 330 Ark. 8, 952 S.W.2d 646 (1997). We have strictly construed the permissible scope of an appeal under Rule 24.3(b). In Wofford, appellant entered a conditional guilty plea under Rule 24.3(b), and we declined to address an upward departure from sentencing guidelines and an alleged violation concerning cameras in the courtroom because there points did not concern the “suppression of evidence.” Id. See also Jenkins v. State, 301 Ark. 586, 786 S.W.2d 566 (1990) (declining to reach the merits of a speedy-trial argument when the appellant entered a Rule 24.3(b) conditional plea of nolo contendere on the charge).

In Bisbee v. State, 341 Ark. 508, 17 S.W.3d 477 (2000), appellant was charged with one count of kidnaping, three counts of rape, and one count of residential burglary. Appellant spoke with law enforcement officials about the abduction during the course of the investigation. Appellant filed a motion to suppress his statement, arguing that the police officers promised him a Coke and a cigarette in exchange for his statements. The trial court denied the motion, finding that appellant had voluntarily waived his rights. Pursuant to Ark. R. Crim. P. 24.3(b), the trial court accepted appellant’s conditional guilty plea, which was conditioned upon the State allowing him to appeal the trial court’s adverse ruling on his pretrial motion to suppress. We held that the trial court’s findings were not erroneous. Id.

The facts presented in this appeal are similar to those in Bisbee, supra. In Bisbee, appellant raised the question of voluntariness of his statement on appeal after his conditional plea was entered. In the present case, appellant raises the issues of extraterritorial jurisdiction and probable cause to effectuate his arrest. Nevertheless, appellant’s argument concerns the suppression of evidence as the fruit of an alleged illegal arrest. See Wofford, supra. Under Rule 24.3(b), appellant’s guilty plea was conditioned upon the State allowing him to appeal “any adverse determination of a pretrial motion to suppress.” We interpret the language of this rule to include the validity of an arrest after which a statement was made. For these reasons, we will reach the merits of appellant’s point on appeal.

III. Legality of the arrest

For his sole point on appeal, appellant argues that the trial court erred in denying his motion to suppress his statement because the officers lacked probable cause to make an extraterritorial arrest. Specifically, appellant argues that his statement made after the arrest should have been suppressed under the fruit of the poisonous tree doctrine.

As a general rule, there are four instances where officers may arrest outside their territorial jurisdiction: (1) when the officer is in fresh pursuit, under Ark. Code Ann. § 16-81-301 (1987); (2) when the officer has a warrant for arrest, as provided by Ark. Code Ann. § 16-81-105 (1987); (3) when a local law enforcement agency has a written policy regulating officers acting outside its territorial jurisdiction and when said officer is requested to come into the foreign jurisdiction, as stated in Ark. Code Ann. § 16-81-106(c)(3)-(4) (Supp. 1995); and (4) when a sheriff in a contiguous county requests an officer to come into his county to investigate and make arrests for violations of drug laws, pursuant to Ark. Code Ann. § 5-64-705 (Repl. 1993). Perry v. State, 303 Ark. 100, 794 S.W.2d 141 (1990). The traditional concept of territorial jurisdiction for peace officers is a sound one since a local community is best served by the requirement that local officers familiar with local neighborhoods make arrests in the community. Perry, supra.

At the outset, we note that the prosecutor below conceded that the Saline County officers arrested appellant outside of their territorial jurisdiction, and that none of the statutory grounds for making an extraterritorial arrest appear to apply to the facts of the present case.

Appellant cites Henderson v. State, 329 Ark. 526, 953 S.W.2d 26 (1997) in support of his argument that appellant’s arrest was illegal. In Henderson, appellant moved to suppress his statement to Pulaski County deputy sheriffs as the fruit of the poisonous tree because his arrest was made by Pulaski County officers while in' Lonoke County, which was outside territorial jurisdiction. The State claimed that, because a federal agent who was deputized across the state participated in the arrest, the arrest was valid. We disagreed, holding that there was no federal offense involved, that the federal agent was not involved in the operation, and that the federal agent was not given explicit permission by his superior to effectuate an arrest. Id.

Henderson, supra, is distinguishable from the present case because no Lonoke County officers were present at the time the Pulaski County officers arrested Henderson. Pulaski County officers, acting in concert with a federal agent, erroneously made the arrest in Lonoke County without the presence of Lonoke County law enforcement because they believed that the presence of the federal agent would legitimize their warrantless arrest. Id. Here, Pulaski County officers were on the scene, aiding Saline County officers in their investigation and participating in appellant’s arrest.

The facts in this case are more similar to the circumstances in Logan v. State, 264 Ark. 920, 576 S.W.2d 203 (1979), where a Crittenden County deputy sheriff sought to arrest appellant while he was in St. Francis County. The deputy sheriffs from Crittenden County sought assistance from a St. Francis County deputy sheriff. Id. According to Logan, the presence of an officer with full authority to make an arrest legitimizes an arrest. The presence and acquiescence of a duly authorized officer is the key to determining whether an arrest is authorized. Id. Justice George Rose Smith, writing for the court, stated, “We need not discuss these contentions, because it is a fair inference from Davis’s testimony that Sam Hughes, the St. Francis County deputy, participated in the arrest.” Id. The court further stated, “Even though it was Officer Davis [from Crittenden County] who actually told Logan that he was under arrest, we think it clear that Officer Hughes [from St. Francis County] was also present in his capacity as a deputy sheriff and participated in making the arrest.” Id.

Like the circumstances in Logan, supra, Pulaski County officers were present and acted in concert with the Saline County officers. Here, the knowledge of appellant’s commission of a felony had been reported to the Pulaski County Sheriffs Office, and Pulaski County officers were asked to participate in the arrest. This request for assistance and participation was made three times. First, the Saline County officers reported the offense to Pulaski County officers, who then participated in the efforts to apprehend appellant by going to the address on the day the felony was committed. According to Detective Little’s affidavit alleging probable cause, agencies in Pulaski County were notified of the Benton High School incident and attempted to locate the vehicle at that address, but were unsuccessful. Second, Detective Frost called the Pulaski County Sheriffs Office the next day on his way to Cabot for assistance in locating the residence. Third, Detective Frost contacted the Pulaski County Sheriffs Office before the arrest, and advised them that he needed a deputy at the location before making contact with the subject in the house. The Pulaski County deputy arrived ten minutes after Detective Frost made the call, and the Pulaski County deputy was on the scene before appellant was apprehended and arrested. The Pulaski County deputy and Detective Frost went to the door of the house and apprehended appellant, who matched the description of the man who drove the get-away van at Benton High School. For these reasons, we follow Logan, supra, as well-established precedent that an arrest is valid when the arresting officer is accompanied by a duly qualified officer of the jurisdiction where the arrest occurs and who thereby participates in making the arrest.

In our cases involving the legality of arrests, it is well settled that all presumptions are favorable to the trial court’s ruling on the legality of the arrest and the burden of demonstrating error rests on appellant. Efurd v. State, 334 Ark. 596, 976 S.W.2d 941 (1998) (citing Humphrey v. State, 327 Ark. 753, 940 S.W.2d 753 (1997)). See also Ross v. State, 300 Ark. 369, 779 S.W.2d 161 (1989).

We hold that the trial court properly denied appellant’s motion to suppress the statement. Accordingly, we affirm.

Affirmed.

Glaze, J., concurs. Brown, Imber, and Hannah, JJ., dissent.