Larry Rutledge was convicted of burglary and theft of property in the Phillips County Circuit Court and sentenced to serve five years in the Arkansas Department of Correction. He raises two issues on appeal: that the trial court erred in denying a motion to suppress his confession and the evidence obtained as a result of that confession; that the trial court erred by not crediting him for time he had spent in jail awaiting trial. We find no merit to either issue, and affirm the conviction and sentence.
The first issue involves a unique fact situation. Rutledge argues he had a lawyer on two unrelated pending felony charges when he confessed to these crimes and his statement was not voluntary because his lawyer was not contacted.
Rutledge had been arrested on the two previous felony charges, but had been released on bond pending the trial. While on bond, he was arrested by the Marvell police for driving an automobile while intoxicated and placed in jail. He escaped from jail, but was arrested shortly afterwards by deputies from the Phillips County Sheriff’s Department.
The deputies questioned Rutledge for a few moments about the escape, and then began questioning him about a burglary of the Marvell Lumber Company. Rutledge had signed a waiver of rights form prior to questioning. He admitted that he had committed the burglary and stolen some guns.
This statement, which had been tape-recorded, was later reduced to writing. However, Rutledge refused to sign the statement on advice of counsel. Rutledge’s attorney, on the two prior felonies, contacted him after this confession and advised him not to sign the statement.
Appellant first claims that the statement was not voluntary because he was threatened and beaten. His testimony on this point was in direct conflict with that of the deputy sheriffs who interrogated him.
Rutledge also argues that because he was represented by counsel on the two other felony charges, the deputy sheriffs were under an obligation to contact his attorney before questioning him about the burglary and theft.
The trial court, after examining its docket, made the statement that at the time Rutledge was questioned he did not have counsel of record. It is not clear from the record before us whether Rutledge had counsel of record on the two unrelated pending felony charges or not. The deputy sheriffs testified that they thought he was represented by a lawyer. Rutledge testified that he did not know whether he had a lawyer. (Apparently he was aware that his lawyer was withdrawing or had withdrawn from the case). In any event, we will assume that he did have counsel of record on the two unrelated felony charges.
Rutledge also argues that once a defendant is represented by counsel he cannot waive his constitutional rights without the knowledge and permission of his attorney. He cites the case of United States v. Howard, 426 F. Supp. 1067 (W.D.N.Y. 1977), as authority for this proposition. In the Howard case the authorities continued to question the suspect after his attorney had told them he represented Howard and did not want the suspect interrogated. We feel the court correctly held that such an interrogation was a violation of the suspect’s constitutional rights. However, in this case the facts are entirely different.
In this case a waiver of rights form was signed by Rutledge before questioning began. He admitted that he signed it. He did not testify on direct examination that he had requested counsel. However, during cross examination he said that he had asked for a lawyer.
The state has the burden of proving that an in-custodial statement is voluntary. Harris v. State, 244 Ark. 314, 425 S.W. 2d 293 (1968). It is the duty of the trial court, after listening to the evidence, to determine whether a statement is voluntary according to law. The trial court in this case found that the statement was voluntary and after examining the totality of the circumstances, we cannot say that finding is clearly against the preponderance of the evidence. Loomis v. State, 261 Ark. 803, 551 S.W. 2d 546 (1977).
We do not find it was per se improper in this case for the authorities to question Rutledge about the burglary of the Marvel Lumber Company even though Rutledge may have had an attorney of record on another set of pending charges against him and that attorney was not notified of the interrogation or Rutledge specifically told he had a right to call that lawyer. Michigan v. Mosley, 423 U.S. 96 (1975). If he is represented by counsel on other charges, it becomes a question of whether the accused knowingly and intelligently entered into a voluntary waiver of his rights to counsel and against self-incrimination. See Rodgers v. State, 261 Ark. 293, 547 S.W. 2d 419 (1977).
The trial court ruled that Rutledge voluntarily made the statement. Since we agree with the trial court, it is unnecessary to determine whether evidence received as a result of Rutledge’s confession should have been suppressed as “fruit of the poisonous tree.”
Rutledge’s request for credit for the time he spent in jail awaiting trial is also without merit. The request was not raised in the trial court although Rutledge had the opportunity to raise it before sentencing. This issue cannot, then, be raised the first time on appeal. See Coleman v. State, 257 Ark. 538, 518 S.W. 2d 487 (1974).
Affirmed.
Holt and Howard, JJ., dissent.