dissenting. Because I believe stice, was the result of a false promise to help, I must respectfully dissent. Specifically, I believe that based on the totality of the circumstances, the statements made by law enforcement officials to Roberts coupled with Roberts’s vulnerability led to an involuntary confession that should have been suppressed.
Guilt Phase
Statements made while in custody are presumed to be involuntary, and the burden is on the State to show that the statements were made voluntarily, freely, and understanding^, without hope of reward or fear of punishment. Stephens v. State, 328 Ark. 81, 941 S.W.2d 411 (1997). In Bisbee v. State, 341 Ark. 508, 17 S.W.3d 477 (2000), we outlined the standards for reviewing the voluntariness of an in-custody confession. In Bisbee, we explained:
The State bears the burden of proving by a preponderance of the evidence the voluntariness of an in-custodial confession. Davis v. State, 275 Ark. 264, 630 S.W.2d 1 (1982).
A statement induced by a false promise of reward or leniency is not a voluntary statement. Clark v. State, 328 Ark. 501, 944 S.W.2d 533 (1997). For the statement to be involuntary the promise must have induced or influenced the confession. McDougald v. State, 295 Ark. 276, 748 S.W.2d 700 (1988).
As with other aspects of voluntariness, we look at the totality of the circumstances. Conner v. State, 334 Ark. 457, 978 S.W.2d 300 (1998). The totality is subdivided into two main components: first, the statement of the officer, and second the vulnerability of the defendant. Davis, supra. We have articulated factors which we will look to in our determination of whether the defendant was vulnerable. Specifically, we have held that the factors to be considered in determining vulnerability include: 1) the age, education, and intelligence of the accused; 2) how long it took to obtain the statement; 3) the defendant’s experience, if any, with the criminal-justice system; and 4) the delay between the Miranda warnings and the confession. Conner, supra.
Bisbee, supra.
In order to determine whether Roberts’s confession was voluntarily given, it is necessary to review the facts surrounding Roberts’s confession. On May 17, 1999, Karl Roberts went to the Polk County Police Station to take a polygraph exam. Following the exam, Officer Ocie Rateliff informed Roberts that the test results established that Roberts had been “deceptive” on the test. Immediately thereafter, Roberts stated that he had “messed up.” Officer Rateliff testified that Roberts appeared “teary-eyed” while making this statement. Officer Rateliff also testified that after hearing Roberts’s statement he moved his chair closer to Roberts, put his arm around Roberts, and told Roberts that he should “get it off your chest, we’ll help.”
As the majority correctly notes, the statement “get it off your chest, we’ll help” is ambiguous. Because the alleged “promise” is ambiguous, we must look to Roberts’s vulnerability to determine whether the officer’s statement improperly induced Roberts’s confession. See Pyles v. State, 329 Ark. 73, 947 S.W.2 d 754 (1997).
A review of the evidence established that Roberts was thirty-one years of age at the time he made the custodial statements. The evidence showed that from the time Officer Rateliff gave Roberts his Miranda warnings, upon arriving at the police station, until he was told “we’ll help,” was two hours, and that from the time Roberts stated that he had “messed up” until his confession was completed, was approximately another two hours. The record does not reveal any prior experience Roberts may have had with the criminal-justice system.
The four hours between the Miranda warnings and the completion of the confession following the ambiguous promise “we’ll help” are not excessive, but that does not resolve the question of whether Roberts was vulnerable.
I believe that the evidence establishing that Roberts’s intelligence level was well below average was significant. Dr. Charles Mallory from the State Hospital testified that he had given Roberts an IQ test and that the results from the test revealed that ninety-five percent of the population would have performed at a higher level than Roberts. Dr. Mallory also testified that Roberts’s IQ score of 76 was considered to be in the range of “borderline intellectual functioning.” He explained that this meant that Roberts was not mentally retarded, but was of below normal intelligence.
This psychological assessment was echoed by Special Agent Mark Jessie and Officer Rateliff. Agent Jessie was in the interrogation room at the time Officer Rateliff offered his promise and at the time Roberts made his confession. Agent Jessie testified that he considered Roberts to be a “man of below normal intelligence.” He also testified that he “would have guessed [Roberts] to be a kid that would have been slow in school.”
Officer Rateliff described Roberts as someone who was “a little slower than most people.” He also explained that Roberts’s voice was “monotone” and “not normal.”
Not only was Roberts capable of only “borderline intellectual functioning,” I believe it is even more significant that there was uncontroverted evidence that at age twelve Roberts suffered severe brain damage in an accident that destroyed one-fifth of his right frontal lobe and damaged other parts of his brain. Magnetic Resonance Imaging scans of Roberts’s brain clearly revealed that a significant part of his right frontal lobe, as well as the medial aspect of his left frontal lobe, and part of his temporal lobe were missing.1
Dr. Lee Archer, a neurologist from UAMS, testified:
.My opinion is that if it were not for the injury that Karl Roberts sustained in 1980 he would not have committed this crime. Prior to Karl’s accident in 1980 he had no behavioral problems.
During my examination of him, Karl acted more like an adolescent than an adult. Adults will make eye contact and will engage in some small talk. Karl avoids eye contact and he makes no small talk.
There are also some subtle findings that indicate a dysfunction of the brain. His handwriting is very laborious, his speech has a telegraphic quality where he uses just essential words to communicate, and his gait is a little bit abnormal.
From this testimony, it is clear that the combination of a borderline I.Q. and adolescent behavior patterns resulting from severe brain damage made Roberts vulnerable to the ambiguous promise “get it off your chest, we’ll help.”
Evidence presented at the hearing showed that Roberts, who was emotionally upset during the interrogation, was vulnerable to Officer Rateliff s false promise. Specifically, Officer Rateliff testified that prior to making the statement to Roberts he noticed that Roberts was “teary eyed.” Officer Rateliff also testified that he had moved his chair close to Roberts and placed his arm around Roberts shoulder before he promised to “help” Roberts. Officer Rateliff further testified that after he had promised to help, Roberts was “very upset” and “had a quiver in his voice.”
Agent Jessie also testified about Roberts’s sensibilities. He stated that after Officer Rateliff put his arm around Roberts, and told him that they would help, Roberts “broke down and began to sob.” Agent Jessie further explained that Roberts continued to cry for several hours.
Based on the totality of the circumstances, I would conclude that the State did not meet its burden of proving that Roberts’s confession was voluntarily given. For that reason, the trial court erred in denying his motion to suppress. Because the confession was involuntarily given, any evidence recovered as a result of that confession would be fruit of the poisonous tree and would therefore be inadmissible.
I also dissent because I believe that Pyles v. State, 329 Ark. 73, 947 S.W.2 d 754 (1997), is indistinguishable from the case now on review. In Pyles, we were asked to determine whether an officer had made a false promise to Pyles which induced him to confess. The facts surrounding Pyles’ confession were outlined in the opinion. We explained:
Following a long interrogation of several hours by other officers, Officer Howard began to interrogate Pyles. Officer Howard testified that he knew Pyles prior to the arrest through baseball and that he visited with Pyles about that. He testified that he told Pyles that it was important for him to tell the truth and that “they knew he did it.” He also testified that he told Pyles that he did not believe that Pyles was a cold-blooded killer and that he told Pyles that he would “do everything in the world [he] could for him.” Pyles claims that he confessed after Officer Howard made this statement.
Pyles, supra.
After reviewing other cases involving confessions, we noted:
Often it is difficult to determine whether an officer’s statement is a promise of reward or leniency, a statement meant to deceive, or merely an admonishment to tell the truth. In Wright v. State, 267 Ark. 264, 590 S.W.2d 15 (1979), we allowed a statement by an interrogating officer that, “things would go easier if you told the truth.” However, in Tatum v. State, 266 Ark. 506, 585, S.W.2d 957 (1979), we determined that the statement, “I’ll help you any way that I can” was a false promise. On several occasions, we have held statements to be false promises: when the officer claimed he “would do all that he can,” Hamm v. State, 296 Ark. 385, 757 S.W.2d 932 (1980), and when the officer said “I’ll help all that I can.” Shelton v. State, 251 Ark. 890, 475 S.W.2d 538 (1972).
Pyles, supra.
We then went on to consider Pyles’ vulnerability, and wrote:
In the case before us, the record reflects that Pyles became emotional when he was interrogated by Officer Howard. Both Pyles and Officer Howard testified that Pyles held the officer’s hands and wept. Pyles testified that he was emotional and tired from a long interrogation. The statement that Officer Howard made closely resembles those which we held unacceptable in Tatum, Hamm, and Shelton, supra. Therefore, we must conclude that the officer’s action constituted a false promise that resulted in an involuntary confession.
Pyles, supra.
Pyles is squarely on point with the case now under consideration. Specifically, the statements made by the officers in each case amounts to a wide sweeping promise of “help.” The criminal defendants in both cases were emotionally distraught and subject to police inducement. Moreover, the officers in both cases used the criminal defendant’s vulnerability to induce a confession. Because Pyles is factually indistinguishable from the case now on review, and because we determined that the confession in Pyles should have been suppressed, I conclude that Roberts’s confession should have been similarly suppressed. I dissent and would remand this case for a new trial on the charges.
Penalty Phase
I must also dissent from the imposition of the death sentence upon Roberts in the penalty phase because I cannot say with certainty that the verdict forms were completed in accordance with statutory requirements. We have consistently held that the death sentence may not be imposed unless the jury makes the required statutory finding. Camargo v. State, 327 Ark. 631, 940 S.W.2d 464 (1997).
In the case now before us, Form 2 sections “B” and “C,” relating to mitigating circumstances, were left blank. Because a significant portion of Form 2 is blank, we cannot determine whether the jury properly considered the mitigating evidence prior to imposing the death penalty. The majority contends that while there was conflicting evidence with regard to the existence of seven mitigating circumstances, the jury did not have to consider those circumstances as having been established. That is correct. But, the jury was statutorily required to consider the evidence concerning those seven mitigators, and to make a written decision as to whether or not they had been established. This the jury did not do. Having failed to use Form 2B to indicate whether some jurors believed some of those mitigators existed, but that the panel did not agree that they were mitigators, the jury also failed to use Form 2C to indicate that the evidence supporting the other mitigators was not sufficient to prove the existence of those mitigators. In summary, after finding the existence of nine mitigators as marked on Form 2A, the jury did not execute any written disposition of the remaining seven mitigating circumstances for which some evidence was presented. The requirement to make this analysis is clear in Form 2B and 2C, and the jury made no use of those forms. In my view, the failure to make written findings as to the validity of those seven mitigators constitutes error requiring a new sentencing trial. Because we cannot determine whether the jury considered the seven mitigating factors for which some evidence was presented, I cannot join the majority opinion in approving Roberts’s sentence even if there were no error in the guilt phase of the trial.
I respectfully dissent.
Uncontroverted expert testimony showed that such destruction of the frontal lobes produces an effect similar to that suffered by Phineas Gage approximately 150 years ago when a dynamite blast drove a crowbar through his frontal lobes. Before that time Mr. Gage had been a hard-working family man. Although he survived the accident, he became animal-like in his behavior and as a result of scientific study over the century and a half following the injury, the role of the frontal lobes in controlling behavior has become well documented.