dissenting. I am compelled to dissent in this case inasmuch as it is my belief that from a totality of the circumstances involved, the trial court committed reversible error in failing to suppress the alleged confession made by appellant. See: Degler v. State, 257 Ark. 388, 517 S.W. 2d 515 (1974) where we stated that we will make an independent determination of the voluntariness of a confession by reviewing the totality of the circumstances.
The record reflects that appellant was taken into custody by the police on January 31, 1977, at approximately 11:22 p.m. At the time, the appellant had two felony charges pending against him in the Phillips County Circuit Court and was represented by court appointed counsel. The police officers involved were aware that appellant had an attorney.
Appellant was immediately taken to the Phillips County jail where appellant purportedly executed a waiver of rights form, and purportedly confessed to burglary and theft of property. Appellant contends that the oral statement was given, which was later reduced to writing, but not signed by appellant, after he was required by police officers to remove his shirt, threatened to be taken “to the river”, and beaten about the head, face, back and legs.
Although the record is void of appellant’s educational background and his age, it is readily apparent that he is a youth of rather tender age, an indigent, and he was relying on his mother for assistance in making bond for the two felony convictions, which are not the subject matter of this appeal, pending against him at the time he was arrested on January 31, 1977. It is clear that he never made bond for the prior charges and had spent approximately three weeks in jail immediately prior to his arrest on January 31, 1977. Moreover, at the time, he was an escapee from the Marvell jail, having escaped only a short while before he was apprehended by the Phillips County Sheriff Department.
The record also reflects that appellant was evaluated by the Mental Health Center, presumably of Phillips County. The record fails to designate the location of the Mental Health Center. At the request of court appointed counsel, appellant was recommitted to the Mental Health Center for further evaluation, but the record is silent as to the results of the first and the second examination. These reports were not made a part of the record.
Appellant testified that he requested the officers for permission to see an attorney before making any statements, but this request was denied.
The officers involved have testified that they advised appellant of his rights and specifically told him that he had the right to talk with an attorney in order to seek advice before answering any questions and, moreover, it is stated, that appellant was told that his attorney could be present during the questioning. The difficulty that I have in accepting this version, at face value, is the fact that the officers knew from the very beginning that appellant had an attorney who was representing appellant. Thus, to assert that appellant’s attorney was not called because appellant never requested to see an attorney, in view of all of the circumstances just enumerated, creates, indeed, a cloud on the State’s case, in seeking to uphold the confession, is something more than a bare suspicion when it is apparent that the officers could have called appellant’s attorney or afforded appellant an opportunity to call his mother or his attorney.
In Griffith v. Rhay, 282 F. 2d 711, cert. den. 364 U.S. 941, the Court held that where a 19 year old defendant, having little formal education, was interrogated in the hospital while under medication after surgery had been deprived of his constitutional rights regardless of his failure to request the assistance of counsel.
In Scott v. State, 251 Ark. 918, 475 S.W. 2d 699 (1972), we emphasized that in-custody confessions are presumed to have been involuntary and the State has the burden of proof to establish the voluntariness of the confession.
Since appellant had a right to assistance of counsel during his midnight interrogation by Chief Deputy Sheriff Kenneth Winfrey, Deputy Sheriff Lewis Fielder, and Deputy Sheriff Mayo Powell, his failure to request assistance of counsel is significant only if it amounted to a waiver of that right. But a waiver is an intentional relinquishment or abandonment of a known right or privilege. A waiver cannot be effective unless it is intelligently and competently made. Moreover, courts indulge every presumption against the waiver of fundamental constitutional rights. Johnson v. Zerbst, 304 U.S. 458; 58 S. Ct. 1019. Appellant testified that he signed the waiver of rights form, but “I didn’t read it.” The additional fact that the written confession was never signed by the appellant is another significant factor indicating that the State has fallen short of its duty in proving that appellant’s confession was voluntary and that he intelligently and understandingly waived his right to counsel.
I would reverse.
I am authorized to state that Holt, J., joins in this dissent.