dissenting. The majority opinion correctly states the underlying rationale and holding of Arizona v. Roberson,_U.S__, 108 S. Ct. 2093 (1988). The State of Arizona contended that Edwards v. Arizona, 451 U.S. 477 (1981), need not be applied where the questioning of an accused with respect to a separate investigation yields information relevant to an investigation in which he had requested counsel. Mr. Justice Stevens, writing for the majority responded as follows:
It is by no means clear, though, that police engaged in separate investigations will be any less eager than police involved in only one inquiry to question a suspect in custody. Further, to a suspect who has indicated his inability to cope with the pressures of custodial interrogation by requesting counsel, any further interrogation without counsel having been provided will surely exacerbate whatever compulsion to speak the suspect may be feeling. [108 S.Ct. at 2100]
The majority opinion, however, uses the remainder of Mr. Justice Stevens’s response on the point to distinguish Arizona v. Roberson from the case before us. Mr. Justice Stevens’s remarks continued as follows:
Thus, we also disagree with petitioner’s contention that fresh sets of Miranda warnings will “reassure” a suspect who has been denied the counsel he has clearly requested that his rights have remained untrammeled. . . . Especially in a case such as this, in which a period of three days elapsed between the unsatisfied request for counsel and the interrogation about a second offense, there is a serious risk that the mere repetition of the Miranda warnings would not overcome the presumption of coercion that is created by prolonged police custody. [108 S. Ct. at 2100, footnote omitted].
It seems to me that our majority opinion has taken the words “created by prolonged police custody” which, as shown above, were used by Mr. Justice Stevens to illustrate a point collateral to the holding of Arizona v. Roberson, and used them to avoid the very holding of the case from which they were excerpted.
I disagree with the majority opinion’s seeming conclusion that, because the sheriff knew or thought Bussard was no longer represented by his first lawyer, he could question Bussard without the presence of counsel. The point is not whether, as the majority opinion suggests, the sheriff “had no reason to believe that appellant had a lawyer.” Rather, the point is, as expressed quite clearly in Arizona v. Roberson, whether he had invoked his right to counsel. Obviously the sheriff knew that, and the lack of “prolonged police custody” is irrelevant.
This decision is inconsistent with Edwards v. Arizona, supra, Arizona v. Roberson, supra, and our own earlier decision with respect to this same appellant, Bussard v. State, 295 Ark. 72, 747 S.W.2d 71 (1988).
I respectfully dissent.
Dudley, J., joins in this dissent.