Boyd v. State

Cite as 2016 Ark. App. 407

ARKANSAS COURT OF APPEALS
DIVISION I
No. CR-15-259

MICHAEL BOYD Opinion Delivered September 14, 2016
APPELLANT
APPEAL FROM THE PULASKI
V. COUNTY CIRCUIT COURT,
FOURTH DIVISION
STATE OF ARKANSAS [NO. CR13-3549]
APPELLEE
HONORABLE HERBERT WRIGHT,
JUDGE

AFFIRMED

CLIFF HOOFMAN, Judge

Appellant Michael Boyd was convicted by a Pulaski County Circuit Court jury of

aggravated robbery and theft of property and was sentenced to thirty and ten years of

imprisonment, respectively, to be served consecutively.1 On appeal, he contends that the trial

court committed reversible error by denying (1) his motion for a directed verdict, (2) his

motion to suppress statements made by him in a police interview, and (3) his motion to

suppress a photo identification of him made by a bank teller. We affirm.2

1
Although appellant was also charged with possession of firearms by certain persons,
that charge was nolle prossed by the State.
2
Our court previously ordered rebriefing. Boyd v. State, 2015 Ark. App. 596.
Appellant’s attorney filed a substituted abstract, brief, and addendum, but we determined that
it was again deficient. We then issued an opinion stating that complete rebriefing was not
required but that counsel was required to prepare a supplemental abstract and addendum. Boyd
v. State, 2016 Ark. App. 74. Appellant’s attorney prepared and filed a supplemental abstract
and addendum as ordered. The appeal is now sufficiently briefed such that we can reach the
merits of the appeal.
 Cite as 2016 Ark. App. 407

The crimes were alleged to have occurred at approximately 4:15 p.m. on September

13, 2013. A man had entered a Bank of the Ozarks branch in North Little Rock with what

appeared to be a handgun in his waistband, demanded money, took $4,000 of the bank’s

money, and left in a car that had been described by bank tellers. Appellant was stopped in

his car about an hour after the armed robbery. Appellant had a similar appearance to the man

described by bank tellers and seen in bank surveillance video. Appellant submitted to an

interview at the police station and waived his Miranda rights. In the interview, appellant

made incriminating statements, admitting to having visited three banks that day, to having

been at the bank that was robbed, to having what he described as a fake gun, and to taking

money from a bank teller. Appellant’s attorney filed a pretrial motion to suppress asserting

in part that his statement should be suppressed because the officer illegally used promises of

leniency to acquire his custodial statements, rendering them involuntary.

At the hearing on this motion to suppress, Detective Michael Gibbons testified that he

interviewed appellant. He explained that he read appellant his Miranda rights, that appellant

told him that he understood his rights, and that he wished to waive his rights in order to give

a statement. The interview lasted more than one hour. Although appellant repeatedly asked

whether he could receive a bond on these charges, Detective Gibbons testified that he never

promised appellant a bond, noting that appellant was not yet charged with anything.3 The

3
The detective said at different points in the recorded interview that, “I’m not going
to lie to you and tell you you’re goin’ home....I have no control of a bond....I don’t set the
bond....It’s gonna be charged as [a] real [gun]....based on video and their identification it
doesn’t matter what you say. ...I’m not gonna lie and tell you you can go home...from the
video I can prove it looks like a real gun...I don’t set the bond....I don’t set the rules....if

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detective said that he told appellant that if a gun was not used or if it was not real, then a

crime was considered robbery, where a bond was possible, but that a bond was not possible

for aggravated robbery. The detective made clear that appellant was “all about getting a bond,

no matter what the charge was,” but that he told appellant that he would not lie and tell him

he could go home. He admitted that he falsely told appellant that seven people had identified

him as the robber and that traffic cameras had showed his vehicle at the scene. Detective

Gibbons explained that he did not threaten appellant in order to obtain his confession.

Furthermore, he testified that appellant had numerous prior offenses and that appellant had

extensive experience with the criminal justice system, including having his Miranda rights

read to him and having been to prison numerous times for felonies. Appellant confessed

during the interview that he went into the three banks that day (two Metropolitan Banks and

the Bank of the Ozarks), that he had a mask on, that he had a fake gun with him although he

denied pulling it out, and that a teller gave him the money.

Defense counsel argued that this confession was involuntary because it was the product

of the detective’s false promise of leniency. The State argued that there was no promise,

much less a clear promise, of acquiring appellant a bond and that the detective repeated that

he could not make such a promise. The State asserted that under the totality of circumstances

with this criminally experienced defendant, suppression was not warranted. At the conclusion

you’re charged with aggravated robbery, the standing rule now is no bond...I can’t promise
you anything.” Toward the end of the interview, appellant repeatedly asked “do I get a
bond,” and the detective twice said “no.” Thereafter, appellant eventually admitted to
incriminating facts.

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of the hearing, the trial court denied the motion to suppress, and a written order was

subsequently filed.

Appellant also filed a pretrial motion to suppress the evidence of a photo identification

made by witness Kathryn Pannell, alleging that the lineup was unduly suggestive. There were

two written orders filed prior to trial denying this motion, but the trial court agreed to

consider the motion again during the course of the trial.

At trial, the State put on proof that a man matching appellant’s description had shown

up at two Metropolitan Bank locations that day before entering a nearby Bank of the Ozarks

location, where the robbery took place. North Little Rock police officer Kasey Knight was

involved in responding to the report from a Metropolitan Bank of a “suspicious male” who

came in wearing a dust mask, sunglasses, a hat, and who was acting “kind of odd.” Knight

viewed bank surveillance video, which led him to broadcast to other officers to be on the

lookout for this approximately thirty-year-old black male.

A bank manager at that Metropolitan Bank branch, Sholanda Jenkins, testified to her

description of the man and that she asked him to take off the dust mask, but he refused, saying

that he had the flu. She verified a still photo of the man in the bank that day as shown on

bank surveillance.

A teller from that Metropolitan Bank branch, Kathryn Pannell, testified that, while she

was on a break, she observed appellant without his mask on immediately before he entered

the bank. She also observed his vehicle and license plate that she was able to report to

police—a black Toyota with license plate 198 SRG. She confirmed that appellant was

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becoming agitated when he could not get the tellers to provide him a cash advance on a card

that did not have his name on it. They locked the bank door after he left; appellant tried

again to enter the bank but left instead. Pannell called the police. Pannell identified appellant

in court stating that she was “100% sure” that appellant was the man in the still photos that

showed a full-length color picture of appellant in her bank lobby. She said he had the mask

in his hand before he put it on, and he told her that he had the flu as he walked into the bank.

She said that when he was inside the bank, the mask kept coming down and he would have

to put it back up.

Pannell had also identified appellant out of a six-person photo spread when presented

with it about four months after the robbery. Pannell said that the detective never suggested

who to pick out, and she did not have any doubts about her recognizing appellant in the

photos. She testified that her job was in customer service, and she remembered people.

Appellant renewed his motion to suppress the photo-spread identification made by Pannell.

Defense counsel complained that Pannell did not identify appellant until months after the

robbery; it was based on her brief observation of appellant; and the lineup was

unconstitutionally suggestive. The State responded that this was a very good lineup with

similar looking men with nothing suggestive about it. The trial court rejected the motion by

sustaining its earlier ruling.

The State called employees of the robbed Bank of the Ozarks, located on Camp

Robinson Road, to testify about what they saw and heard that day. Sharon Erwin, one of the

tellers at Bank of the Ozarks, testified that the assailant had entered the bank wearing a black

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shirt, black hat, dark sunglasses, and a white surgical mask. She said she knew something was

not right. She overheard him demand $10,000 from another teller, Pam Buzbee, who was

in the window next to her. After Buzbee refused and told the man to take off his mask, the

man told Buzbee that he had the flu, called Buzbee “a bitch,” lifted up his shirt, showed the

gun, and finally pulled the gun out and waved it around. Erwin testified that Buzbee was

hesitant to give him the money, so she pulled out two straps of $100 bills that contained a

total of $4,000 and tossed them in the window. Erwin said that she saw the man’s face as he

pulled his mask back and put it back on; the man then took the money and left. Erwin

explained the bank surveillance video as part of her testimony. She did not positively identify

appellant in court as the man in the bank that day, but she verified that the surveillance was

accurate.

Another bank employee, Greg Smith, was present working the drive-through window;

he heard the interaction and heard someone say, “He has a gun,” but he did not personally

observe the robbery. Smith saw the robber get into his car to leave, and he was able to

describe the license plate. Another bank employee, Chris Abbot, testified about observing

the robbery, hearing the man call Buzbee a “stupid bitch,” and seeing Erwin throw the

money toward the man before he left.

Detective Cody Brown detained appellant after he was stopped approximately an hour

after the robbery driving a vehicle matching the description given––a black 2012 Toyota

Corolla, license plate 198 SRG. At the time he was pulled over, appellant said that he had

not been on Camp Robinson Road that day although Brown had not mentioned that road.

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Detective Gibbons testified at trial that he conducted appellant’s interview and

explained a summary of events similarly to his description at the suppression hearing. Gibbons

said that appellant did not immediately confess to the robbery but spent most of the

conversation wondering whether he could get a bond and go home. Gibbons said he told

appellant “over and over” that he could not promise anything—including a bond—if he made

a statement and explained that this was being investigated as an aggravated robbery. A portion

of the audio-recorded interview was played, and transcripts of that portion were provided to

the jury.

Gibbons said that appellant had gone that day to the Metropolitan Bank on McCain

Boulevard at 11:30 a.m. and at 3:29 p.m.; to the Metropolitan Bank on JFK at 4:02 p.m.; and

then to the Bank of the Ozarks on Camp Robinson Road at 4:11 p.m. The banks were in

close proximity to one another, and appellant was stopped about five miles away from the

bank that was robbed. He was found with over $2,700 on his person. Gibbons explained the

process of putting the photo lineup together and showing it to Pannell, who identified

appellant “in about three seconds.”

After the State rested, appellant’s attorney moved for directed verdict, asserting that the

State had failed to prove that appellant was the man who robbed the bank, and further failed

to prove that he was armed with a deadly weapon or represented by words or conduct that

he was so armed. The State argued in response that appellant admitted that he had a fake gun,

that he went to this bank, and that he took the money; that bank surveillance showed him

committing the robbery; and that one bank teller he saw that afternoon positively identified

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appellant. The trial court denied the motion for directed verdict. Appellant rested and

renewed all his motions, which were all denied by the trial court. The jury found appellant

guilty of aggravated robbery and theft of property. This appeal followed.

Appellant first contends that the trial court committed reversible error by denying his

motion for a directed verdict. This court treats a motion for a directed verdict as a challenge

to the sufficiency of the evidence. Hinton v. State, 2015 Ark. 479, 477 S.W.3d 512. On

appeal from a denial of a motion for a directed verdict, the sufficiency of the evidence is tested

to determine whether the verdict is supported by substantial evidence, direct or circumstantial.

Davis v. State, 2013 Ark. App. 658, 430 S.W.3d 190; Wyles v. State, 368 Ark. 646, 249

S.W.3d 782 (2007). In determining whether there is substantial evidence, this court reviews

the evidence in the light most favorable to the State and considers only that evidence which

supports the verdict; we consider all evidence whether it was admitted correctly or

erroneously. Eichelberger v. State, 323 Ark. 551, 916 S.W.2d 109 (1996). Substantial evidence

is that evidence which is of sufficient force and character to compel a conclusion one way or

the other beyond suspicion or conjecture. Turner v. State, 2014 Ark. 415, 443 S.W.3d 535.

The jury is free to believe all or part of a witness’s testimony, and we do not weigh the

credibility of witnesses on appeal, as that is a job for the fact-finder and not the appellate

court. Hinton, supra.

A person commits robbery if, with the purpose of committing a felony or

misdemeanor theft or resisting apprehension immediately after committing a felony or

misdemeanor theft, the person employs or threatens to immediately employ physical force

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upon another person. Ark. Code Ann. § 5-12-102(a) (Repl. 2013). A person commits

aggravated robbery if the person commits robbery as defined in section 5-12-102(a) and is

armed with a deadly weapon, represents by word or conduct that he or she is armed with a

deadly weapon, or inflicts or attempts to inflict death or serious physical injury upon another

person. Ark. Code Ann. § 5-12-103. Additionally, Arkansas Code Annotated section 5-36-

103(a) states that a person commits theft of property if he knowingly:

(1) Takes or exercises unauthorized control over or makes an unauthorized
transfer of an interest in the property of another person with the purpose of
depriving the owner of the property; or

(2) Obtains the property of another person by deception or by threat with the
purpose of depriving the owner of the property.

Viewed in the light most favorable to the State, there was substantial evidence to

support the jury’s verdicts. There was eyewitness testimony and bank surveillance to support

the conclusion that a man looking very similar to appellant, wearing a mask, had entered the

Bank of the Ozarks, pulled out a gun, pointed it or at least showed it to one of the tellers, and

took $4,000. A teller at a nearby bank positively identified appellant as the masked man who

was at her bank minutes prior to the robbery, wearing identical clothing and a mask, and

acting very suspiciously. Appellant was detained driving the vehicle that matched the same

description given by the witnesses as the get-away car. Appellant admitted in his statement

to police that he had visited all three banks, that he wore a mask, that he had a fake gun with

him, and that the Bank of the Ozarks teller threw the money at him. This was more than

sufficient evidence for the charges to be submitted to the jury on whether the right person

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was identified as the bank robber and on whether he represented that he was armed with a

deadly weapon. We affirm on this point on appeal.

Next, appellant argues that the trial court committed reversible error by denying his

motion to suppress statements made by him to Detective Gibbons. Specifically, appellant

contends that Detective Gibbons coerced his confession through false promises and lies.

Therefore, appellant argues that his resulting confession was inadmissible. We disagree.

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. Grillot v. State, 353 Ark. 294, 107

S.W.3d 136 (2003). In cases involving a ruling on the voluntariness of a confession, this court

makes an independent determination based upon the totality of the circumstances. Clark v.

State, 374 Ark. 292, 287 S.W.3d 567 (2008). We review the trial court’s findings of fact for

clear error, and the ultimate question of whether the confession was voluntary is subject to

an independent, or de novo, determination by this court. Id. Any conflicts in testimony are

for the trial court to resolve, as it is in a superior position to determine the credibility of the

witnesses. Id. This court looks to see if the confession was the product of free and deliberate

choice rather than coercion, intimidation, or deception. Id. Regarding promises of leniency,

if a police officer makes a false promise that misleads the person in custody, and the person

in custody gives a confession because of that false promise, then the confession has not been

voluntarily, knowingly, and intelligently made. Id. In determining whether there has been

a misleading promise of reward, we look at the totality of the circumstances. Fuson v. State,

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2011 Ark. 374, 383 S.W.3d 848.

The totality is subdivided into two main components: first, the statement of the officer

and second, the vulnerability of the defendant. Id. If the officer’s statement is an

unambiguous false promise of leniency, there is no need to proceed to the second step because

the defendant’s statement is clearly involuntary. Id. If, however, the officer’s statement is

ambiguous, making it difficult for us to determine if it was truly a false promise of leniency,

we must proceed to the second step of examining the vulnerability of the defendant. Id.

Factors to be considered in determining vulnerability include: (1) the age, education, and

intelligence of the accused; (2) how long it took to obtain the statement; (3) the defendant’s

experience, if any, with the criminal justice system; and (4) the delay between the Miranda

warnings and the confession. Id.

During the interview that lasted over an hour, appellant was concerned with the

availability of a bond. However, Detective Gibbons testified that he did not promise

appellant a bond in exchange for his confession, which was confirmed by the actual interview

provided to the trial court for consideration. Our de novo review of the interview itself

shows that the detective told appellant repeatedly that he could not promise a bond. There

was evidence that appellant had extensive experience with the criminal justice system;

appellant freely waived his Miranda rights; and appellant’s interview did not last an unduly

long period of time. Based on our review of the totality of the circumstances, we hold that

the trial court’s decision not to suppress this custodial confession is not clearly against

preponderance of the evidence. Compare Clark v. State, supra (affirming denial of motion to

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suppress and holding that even if there was an ambiguous promise of leniency consisting of

promising to speak to the prosecutor on Clark’s behalf, Clark was not particularly vulnerable

such that her free will was overborne); Roberts v. State, 352 Ark. 489, 102 S.W.3d 482 (2003)

(affirming denial of motion to suppress confession; holding that even if officer’s statement to

Roberts that “we’ll help” if Roberts would get this “off his chest” was an ambiguous promise

of leniency, this adult man with borderline intellectual functioning detained for two hours

who gave his confession not long after Miranda rights were given was not so vulnerable to

warrant suppression).

Appellant also mentions, and the detective admitted, that he misrepresented some of

the surrounding facts of the case, such as falsely telling appellant that more people had

identified him as the robber and that traffic cameras had showed his vehicle at the scene.

However, the fact that a police officer made an untrue statement during the course of an

interrogation does not make an otherwise voluntary confession inadmissible. Goodwin v. State,

373 Ark. 53, 281 S.W.3d 258 (2008). A misrepresentation of fact does not render a statement

involuntary as long as it was not calculated to procure an untrue statement. Id. In this case,

there is no evidence to suggest that the detective was attempting to get appellant to give an

untrue statement. Therefore, based on the totality of the circumstances, the trial court did not

clearly err in finding appellant’s statements voluntary. Accordingly, we affirm on this point.

Lastly, appellant argues that the trial court committed reversible error by denying his

motion to suppress a photo identification of him by witness Kathryn Pannell. We disagree

that appellant has demonstrated clear error in the trial court’s ruling.

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A trial court’s ruling on the admissibility of an identification will not be reversed unless,

based on the totality of the circumstances, it is found to be clearly erroneous. Dixon v. State,

310 Ark. 460, 839 S.W.2d 173 (1992). The trial court first looks at whether the pretrial

identification procedure was unnecessarily suggestive. Id. An identification procedure violates

due process when suggestive elements make it all but inevitable that one person will be

identified as the criminal. Bishop v. State, 310 Ark. 479, 839 S.W.2d 6 (1992). Our de novo

review of the totality of the circumstances demonstrates that the photographic lineup was not

unduly suggestive. All six persons were black males with a little facial hair and very little hair

on their heads; they appear to be of similar age. The detective never suggested to the witness

who she should pick. She chose the suspect easily, within seconds of viewing appellant’s

photo, and was certain of her identification then as well as in court. Appellant does not

present any compelling argument or authority to support that this lineup was unduly

suggestive.

The thrust of appellant’s argument on appeal is that the witness’s identification of

appellant was not reliable. Even if prior identifications may have been improper or suggestive,

an identification will not be suppressed if indicia of reliability are found to independently exist.

Williams v. State, 2014 Ark. 253, 435 S.W.3d 483. Reliability is the linchpin in determining

the admissibility of identification testimony. Id. It is for the trial court to determine if there

are sufficient aspects of reliability present in an identification to permit its use as evidence. Id.

It is then for the jury to decide what weight that identification testimony should be given.

Id.

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When deciding whether the witness’s identification was reliable, the factors to consider

are (1) the prior opportunity of the witness to observe the alleged act; (2) the accuracy of the

prior description of the accused; (3) any identification of another person prior to the pretrial

identification procedure; (4) the level of certainty demonstrated at the confrontation; (5) the

failure of the witness to identify the defendant on a prior occasion; and (6) the lapse of time

between the alleged act and the pretrial identification procedure. Kimble v. State, 331 Ark.

155, 959 S.W.2d 43 (1998). Appellant asserts that the lapse of time between the robbery and

the photo spread being presented to her—about four months—renders her identification

unreliable and that she did not have sufficient prior opportunity to observe him, noting that

she was at a different bank than the one robbed and that none of the other bank employees

were able to positively identify appellant. Appellant has not shown reversible error.

The appellate court will not inject itself into the process of determining reliability

unless there is a very substantial likelihood of misidentification. Williams, supra. Given the

lack of an unduly suggestive lineup, the lapse of four months does not render her in court

identification unreliable, nor is the argument compelling that she did not have the “best

opportunity to make an identification.” This witness was certain of her identification of

appellant as the man in the Metropolitan bank, both at the time she was presented the photo

spread and during trial. Appellant’s arguments go to the weight of her identification, which

was a matter for the jury to decide, not to the trial court’s decision on admissibility. See King

v. State, 323 Ark. 558, 916 S.W.2d 725 (1996). We see no clear error in denying appellant’s

motion to suppress the photographic identification made by this witness.

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Appellant’s convictions are affirmed.

GLADWIN, C.J., and BROWN, J., agree.

Alvin Schay, for appellant.

Leslie Rutledge, Att’y Gen., by: Kristen C. Green, Ass’t Att’y Gen., for appellee.

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