Johnson v. State ( 2016 )

Cite as 2016 Ark. App. 71
ARKANSAS COURT OF APPEALS
DIVISION III
No. CR-15-657
Opinion Delivered February 3, 2016
DAVID ADAM JOHNSON APPEAL FROM THE INDEPENDENCE
APPELLANT COUNTY CIRCUIT COURT
[NO. CR-2013-252]
V.
HONORABLE JOHN DAN KEMP,
JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED
LARRY D. VAUGHT, Judge
David Adam Johnson appeals his conviction by an Independence County jury of two
counts of sexual indecency with a child, a Class D felony. His sole point on appeal is that the
trial court erred in denying his motion to suppress statements he made to police during a
custodial interview. 1 He argues that the statements were not voluntary. We disagree and
affirm.
Testimony at the suppression hearing revealed that Independence County
Investigator Shane Meyer contacted Johnson by phone and asked him to come to the
sheriff’s office for an interview, which he did. Johnson was introduced to another
investigator, Ms. Kalika Rogers, who observed the entire interview. He was read his Miranda
rights, he read them, he indicated that he understood those rights, and he waived them.
Johnson was accused of soliciting sex from his wife’s twelve-year-old niece. Because
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he has not challenged the sufficiency of the evidence supporting his conviction, a detailed
recitation of the facts is unnecessary.
Cite as 2016 Ark. App. 71
Johnson admitted early in the interview that he knew he was there to discuss allegations
against him related to inappropriate sexual conduct with his wife’s twelve-year-old niece. He
initially denied having solicited sex from her but ultimately admitted that he approached her
three times on the same evening and offered to perform oral sex on her.
Meyer told Johnson that the interview was part of a criminal investigation. He stated
that he would turn Johnson’s statement over to the prosecutor. Johnson never indicated that
he wanted to end the interview or invoke his rights. Meyer testified that Johnson did not
appear to be confused or upset. Meyer testified that he did not coerce Johnson but that he
did use tactics that involved accusing him of lying and appealing to his sense of honor and
integrity as a member of the military. At the end of the interview, Meyer asked Johnson to
write a statement, which he did on his own without help or input from either investigator.
Rogers also testified that Johnson had been read his rights, appeared to understand
them, and waived them without coercion. Both investigators testified that Johnson never
indicated that he had physical or mental impairments.
Johnson testified that he suffered from post-traumatic-stress disorder. He admitted
that he never asked for an attorney or asked to end the interview but stated that he felt
threatened by Meyer. He said he was afraid that Meyer would assault him if he did not tell
Meyer what he wanted to hear. Johnson stated that he spent twenty minutes after the
interview praying for forgiveness because he had lied in his confession but that he then
wrote a statement again admitting the allegations.
After listening to the audio recording of the interview, the trial court denied
Johnson’s motion to suppress, finding that Johnson had knowingly waived his Miranda rights
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Cite as 2016 Ark. App. 71
of his own free will and had voluntarily participated in the interview. At trial, Johnson again
objected to the admission of his oral and written statements. His objection was overruled,
and the statements were admitted into evidence. Johnson was convicted and filed a timely
notice of appeal.
In Grillot v. State, the Arkansas Supreme Court clarified the standard of review to be
applied to our review of the denial of a defendant’s motion to suppress a custodial
confession: “[T]he voluntariness of custodial statements is tested by viewing the totality of
the circumstances.” 353 Ark. 294, 309, 107 S.W.3d 136, 144 (2003) (citing Frazier v. Cupp,
394 U.S. 731 (1969)); see also Miller v. Fenton, 474 U.S. 104 (1985)). Likewise, in reviewing a
trial court’s refusal to suppress a confession, we make an independent determination based
on the totality of the circumstances. Id. (citing Cox v. State, 345 Ark. 391, 47 S.W.3d 244
(2001); Riggs v. State, 339 Ark. 111, 3 S.W.3d 305 (1999)). The ruling will be reversed only if it
is clearly against the preponderance of the evidence. Giles v. State, 261 Ark. 413, 549 S.W.2d
479 (1977). Any conflict in the testimony of different witnesses is for the trial court to
resolve. Cox, 345 Ark. at 400, 47 S.W.3d at 250.
A statement made while in custody is presumptively involuntary, and the burden is on
the State to prove by a preponderance of the evidence that a custodial statement was given
voluntarily and was knowingly and intelligently made. Jones v. State, 344 Ark. 682, 687, 42
S.W.3d 536, 540 (2001). In order to determine whether a waiver of Miranda rights is
voluntary, this court looks to see if the confession was the product of free and deliberate
choice rather than intimidation, coercion, or deception. Id., 42 S.W.3d at 540.
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Cite as 2016 Ark. App. 71
Johnson argues that his statements were involuntary because Meyer intimidated and
coerced him. We disagree. He was advised of his Miranda rights, indicated that he
understood them, provided no indication that he was confused or impaired, and waived
those rights of his own free will. He admitted that the transcript of the interview was an
accurate depiction of what had happened, and the transcript revealed no coercion. Both
Meyer and Rogers testified that Meyer had not unduly coerced Johnson into making the
statements. Meyer’s tactic of appealing to Johnson’s sense of integrity and honor as a
member of the military was not coercive; neither were his accusations that Johnson was lying
when Johnson denied the allegations. Both officers testified that Johnson provided no
indication that he had any mental or psychological impairments, and he appeared to be
competent. Johnson stated during the interview that he was aware of the purpose of the
interview. He was even advised that Meyer was going to the prosecutor with Johnson’s
statements. Johnson gave an oral statement confessing to having solicited sex from a minor
and then provided a matching written confession, which he wrote himself while alone in the
interrogation room. In this case, the totality of the circumstances indicates that Johnson
freely and voluntarily waived his Miranda rights and gave both oral and written statements
confessing to solicitation. We find no error and affirm.
Affirmed.
HARRISON and HIXSON, JJ., agree.
Jeremy B. Lowery, for appellant.
Leslie Rutledge, Att’y Gen., by: Ashley Driver Younger, Ass’t Att’y Gen., for appellee.
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