dissenting. I am unable to join the majority in affirming appellant’s conviction because I am persuaded that the trial court erred in finding appellant’s purported confession free and voluntary. The State’s evidence falls short of establishing the voluntariness of the statement by a preponderance of the evidence.
During the Denno hearing, appellant was requested to relate those things that happened, while he was in jail, that “made you feel like you had to make a statement, that you had to confess?”
In reply, appellant said:
A. A couple of days before I made them statements, Ronnie Wayne Gates got jumped on by the jailer, and Wilson said if I am going to have to let one of the guilty ones go to get you, Cagle, I will. He said myself, I think you was hired to come to my town and ransack it.1
Q. Was there anything that máde you feel like that you had to confess, that you were in such a fix that you had better make a statement?
A. Yes, Sir. I found a bag of dope over there in the cell. Before I turned it in they found it, and they used that on me. They said if you confess, I will drop this dope charge, and they said if you don’t I’ll see that they give you twenty years.
On cross-examination, appellant testified:
Q. You said Ronnie Gates got jumped on?
A. Right.
Q. But nobody jumped on you?
A. No. He had threatened me.
Q. Well, Ronnie Gates had threatened you?
A. No, the jailer had. He said you will be next if you don’t settle down, and I wasn’t doing nothing but laying on my bunk.
Q. Okay, but that didn’t have anything to do with you giving a statement or confession, did it?
BY MR. SURGUINE:
Objection, Your Honor, I think it does, I think it is very relevant.
BY THE COURT:
Overruled. You may answer.
Q. That didn’t have anything to do with you giving — they were just saying settle down, they weren’t saying we are jumping on you to make you confess?
A. I didn’t know that.
Q. Well, he never did say anything about a confession, did he?
A. Well, I am saying I didn’t know that. I didn’t know, what he was jumping on me for.
Q. Well, he said to settle down, didn’t he; isn’t that your own words?
A. Yes, but 1 wasn’t doing nothing.
Q. Okay, he said to settle down, you weren’t doing nothing, he didn’t ask you to make a statement, did he?
A. When did he ask me that, when I was laying on my bunk. .. .
Appellant acknowledged, on cross-examination, that he had not informed the jailer about discovering the marijuana in his cell and explained:
A. No, I was thinking about turning it in because they were pretty tee’d off at me for not confessing.”
Ralph Black, parole officer and a rebuttal witness called by the State, testified about an incident that took place when he interviewed appellant, prior to the purported confession. Mr. Black had taken appellant from the jail cell and, during the interview, the Chief of Police confronted appellant with the marijuana allegedly found in appellant’s cell. Mr. Black was asked by the State:
Q. Do you recall Chief Wilson coming in on that date during the interview with a can of marijuana or sack of marijuana?
A. I remember the Chief coming in and mentioning that he had some marijuana that had been found in Cagle’s possession.
Q. And then what occurred?
A. I asked Cagle if this marijuana was his and he said that he had had it in his possession, he found the marijuana, and the Chief said they were going to run fingerprints on it and it would determine, and I asked Cagle about it and Cagle said he had had it in his possession. I thought perhaps the material had been smuggled into the jail as contraband and I asked him where he had got it and he said he had found it there in the jail, and I asked him what he intended to do with it and he said well, he was going to use it for his later purposes at a later time. (Emphasis added)
Appellant also testified:
Q. Dennis, when you were taken into custody and taken down to the police station, was there any point that first day when you asked them to give you a lawyer, that you wanted a lawyer?
A. After they had locked me up.
Q. That was the first day?
A. Right.
The undisputed, evidence shows that appellant, a white youth, 18 years of age, (1) has completed eight years of schooling, (2) had been in jail for three days before he agreed to confess while rejecting all previous requests for a statement, (3) was not afforded an attorney although a request for ;an attorney was made on his first day of incarceration — this testimony was not refuted by the. State when the State presented rebuttal testimony, (4) a can or sack or marijuana mysteriously appeared in appellant’s jail cell and, according to appellant’s testimony, was told, by a police officer, that if he confessed “I will drop this dope charge, and ... if you don’t I’ll see that they give you twenty years.”, (5) during the interrogation of appellant on December 15, 1978, which resulted in the purported confession, appellant was seated at a desk where a .45 caliber gun had been placed, (6) appellant was told by the Chief of Police ‘‘if I am going to have to let one of the guilty ones go to get you, Cagle, I will.... I think you were hired to come to my town and ransack it.”, and (7) appellant’s co-defendant, Ronnie Wayne Gates, was assaulted by á jailer and the same jailer threatened appellant, according to appellant, without cause or provocation — this testimony has not been refuted by the State. Moreover, the State did not call the jailer to testify in seeking to establish the voluntariness of the confession. The failure to call the jailer, as a witness, was fatal to the State’s case. The jailer was a material witness; the unprovoked threats of physical violence, as related by appellant, stand uncontroverted. To argue that the jailer was not a material witness because he was not present when appellant gave the confession does not come to grips with the issue. For example, the State called Chief of Police Gary Wilson, as a witness, although he was not present when appellant gave the purported confession. In articulating the reason for calling the Chief of Police, the prosecuting attorney said: “I have called you in order to comply with the law that we should have everybody here that had anything to do with these statements. . . .”
The Chief of Police was in an adjacent room while appellant was making the confession, but had talked to appellant prior to December 15th, just as the jailer had done on the occasion the purported threat was made to appellant. It is plain that the trial judge regarded appellant’s testimony, relating to the assault of Ronnie Wayne Gates by the jailer, and the threats the jailer made to appellant as material and relevant to the Denno hearing for the trial court directed appellant, over objections, to answer the following question, on cross-examination, regarding the threats purportedly made by the jailer: “Q. Okay, but that didn’t have anything to do with you giving a statement or confession did it?” The failure to call the jailer alone dictates a reversal in this case.
An in-custody confession is presumed to be involuntary and the burden is on the State to show that the statement was voluntarily made. Furthermore, the State has the burden to produce all material witnesses who were connected with the controverted confession or give adequate information for their absence. Smith v. State, 254 Ark. 538, 494 S. W. 2d 489 (1973).
The circumstances in this case, prior to and during the purported confession, are classic examples of those techniques that psychological coercion is grounded upon in order to destroy the will power through fear. Torture of the mental processes can be just as devastating as force upon the body.
In Payne v. State of Arkansas, 356 U.S. 560 (1958), the United States Supreme Court in reversing the appellant’s conviction which was based upon a confession made the following observation:
The use in a state criminal trial of a defendant’s confession obtained by coercion — whether physical or mental — is forbidden by the Fourteenth Amendment.
. I have been authorized to state that Hays and Newbern, JJ., join in this dissent.
Ronnie Wayne Gates is an associate and co-defendant of appellant who was also in jail. Wilson is Chief of Police Gary Wilson of Newport.