Teas v. State

Conley Byrd, Justice.

Appellant Edward Leon Teas was charged by two felony informations filed on February 16, 1978, with the sale of two pills of morphine on December 14, 1977, and the sale of marijuana for $20 on December 5,1977. Over objections of appellant the trial court joined the two in-formations for trial. The jury assessed the maximum sentence and fine on both charges and the trial court ordered the sentences run consecutively. For reversal appellant raises the issues hereinafter discussed.

POINT I. With respect to severance of offenses, Criminal Procedure Rule 22.2 provides

“ (a) Whenever two (2) or more offenses have been joined for trial solely on the ground that they are of the same or similar character and they are not part of a single scheme or plan, the, defendant shall have a right to a severance of the offenses.”

The proof on the part of the State shows only that sometime in 1973, Steve Hicks had sold drugs for appellant. After Hicks was arrested in November 1977, on a drug charge, he became a confidential informer for the State. In that capacity he went to the home of appellant on December 5, 1977 and asked for heroin. Appellant had no heroin but offered to sell Hicks some marijuana which Hicks bought. In connection with Hicks’ capacity as a confidential informer he tried five or six times to again contact appellant but was unable to do so. On December 14, Hicks went by appellant’s home and upon being informed that appellant was visiting one Steve Hall, Hicks went to Hall’s residence where he again asked to purchase some heroin. Appellant stated that he did not have any heroin but had some morphine. He sold Hicks the two morphine pills for $60.00.

The only connection we can find between the two sales is the fact that both were made to Steve Hicks. This showing alone is insufficient to connect the two sales by a single scheme or plan within the meaning of Criminal Rule 22.2 supra. It follows that the trial court erred in joining the two offenses for purpose of trial.

POINT II. Over objections of appellant the trial court permitted the State to put in proof of previous sales by appellant. To sustain the action of the trial court the State suggests that the evidence was admissible to show a single scheme or plan and that appellant by cross-examining the witness with reference to the other alleged sales is estopped to allege error. We find no merit to either contention. See Moser v. State, 266 Ark. 200, 583 S.W. 2d 15 (1979).

POINT III. The trial court after listening to the testimony of Billy L. Satterfield, Ollie Wilborg, Edward Teas, Jerry Roberts and Harold Helton overruled appellant’s motion to suppress the confessions. After a review of the record we find that the trial court’s finding of voluntariness is contrary to a totality of the evidence.

Billy Satterfield was called about 11:00 p.m. the day appellant was arrested. He was advised by Jerry Roberts and Ollie Wilborg that appellant had not made any statements at that time. The next day Satterfield had a conversation with appellant in the presence of Officer Wilborg. He states that it was his understanding that appellant could be of value to.the officers as an informer and that there was a mutual understanding reached that if appellant assisted the police, the police would in turn cooperate with appellant in the matter of reducing appellant’s bond and making recommendations to the prosecutor and to the court for leniency and possibly even dismissal of the cases.

Officer Wilborg admits that appellant’s helping the officers was discussed but that he told appellant and his lawyer, Billy Satterfield that anything appellant did would be told to the prosecuting attorney. However, he says he did not make any promises to appellant. Wilborg also told appellant and Satterfield that the Judge sets the bond, but that he would talk to Jerry Roberts about appellant helping the officers.

Officer Helton also testified that before appellant made any statements he stated he wanted to talk to his lawyer before he answered any questions.

Appellant Teas denies that he made any statements until after the discussion with Wilborg when Satterfield told him to tell it like it was.

For a confession to be free and voluntary, it must be given without hope of reward or fear of punishment. Payne v. State of Arkansas, 356 U.S. 560, 78 S. Ct. 844, 2 L. Ed 2d 975 (1958). Here we cannot say that the confession was not obtained without hope of reward. It follows that the trial court erred in not suppressing the confession:

POINT IV. We find no merit to appellant’s contention that the imposition of the maximum punishment and fine permitted by statute constitutes cruel and unusual punishment, Dyas v. State, 269 Ark. 303, 539 S.W.2d 251 (1976).

Reversed and remanded for proceedings not inconsistent herewith.

Harris, C. J., Fogleman and Hickman, JJ., concur in part and dissent in part.