dissenting. The first Duncan decision [Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987)] (.Duncan I) was overturned because the state failed to bring Duncan before a magistrate without unnecessary delay. Ark. R. Crim. P. 8.1. We found a connection between the delay of three and one-half days and Duncan’s custodial statement which rendered the statement useless as evidence. That holding made it unnecessary to decide whether the statement, which was not shown to be the product of an extended interrogation, was voluntarily given. In other words, the error which necessitated the reversal of the first case was the state’s failure to pursue a timely arraignment and holding Duncan incommunicado for three and one-half days.
Now the majority holds that the trial court erred in ruling that if Duncan had testified at his second trial his custodial statement could have been used for purposes of impeachment. That ruling was correct, unless it is shown that the statements were not the product of a free and voluntary act on Duncan’s part. Mincey v. Arizona, 437 U.S. 385 (1978); Hendrickson v. State, 290 Ark. 319, 719 S.W.2d 420 (1986).
But the majority has made no serious attempt to examine the evidence on that score. It quotes two excerpts from the opinion in Duncan I, neither of which is particularly pertinent to the issue now before us. One of the quoted excerpts was made in reference to whether Duncan had made a knowledgeable waiver of his Sixth Amendment right to counsel. The other was in reference to the Rule 8.1 issue. What is important, I submit, is not how an appellate opinion generally characterizes the record for purposes of resolving issues of a previous appeal, but what in the record now before us weighs pro and con on whether the trial court clearly erred in determining that statements by Duncan were given voluntarily. Under our many cases we will not reverse the trial court in these matters unless the ruling is shown to be clearly erroneous. Stone v. State, 290 Ark. 204, 718 S.W.2d 102 (1986). All the majority opinion provides are segments of Duncan’s interrogation on Tuesday, March 5, the day of his arrest. Admittedly these segments do not show the participants in their best light, but let it be noted that these selective and disjointed excerpts, consisting of barely a page of the opinion, are lifted from a transcript comprising sixty-five pages of questions and answers between Duncan and the officers. A fuller treatment would reflect far more objectively a striking scenario of evasive answers and the increasing frustration reflected in the questions as the hour grew late. Nor does the fact that the idiom of the interrogation room is at times indistinguishable from that of the locker room translate per se into involition. Two points are overlooked by the majority: The questioning did not produce anything inculpatory and although Duncan was told he could terminate the questioning at any time, not once during that span of two and one-half hours did he indicate directly or indirectly that he wanted the questioning to cease. The evident fact is, he hoped to convince the officers he was job hunting in Star City at the time of the homicide. The point to be made is that the trial court decided an issue of credibility after listening to two days of witnesses, and held Duncan’s statements were subject to use for purpose of impeachment. Neither the appellant nor the majority has shown that ruling to be clearly erroneous.
Glaze, J., joins in this dissent.