On February 14, 2005, appellant Bradley Wilson entered a conditional plea of guilty admitting guilt to two counts of residential burglary, one count of theft of property valued in excess of $2500, and one count of theft of property valued in excess of $500. Appellant also admitted that he was a habitual offender with two or more felonies. He was sentenced to serve fifty years in the Arkansas Department of Correction. Pursuant to Rule 24.3 of the Arkansas Rules of Criminal Procedure, appellant preserved his right to appeal the trial court’s denial of his motions to suppress the evidence against him. On appeal, appellant argues that the trial court erred in denying his motion to suppress evidence obtained as a result of involuntary statements made by appellant after he was informed that he was not entitled to an attorney. He also argues that the trial court erred in denying his motion to suppress evidence obtained as a product of involuntary statements made by appellant based upon false promises of leniency by law enforcement personnel. We affirm.
The facts of this case are as follows. On August 17, 2004, the Saline County Sheriffs Department took appellant into custody for a parole violation. While in custody, appellant was advised of his Miranda rights and he signed a consent form. A detective attempted to interview appellant; however, appellant refused to speak to the detective until after the tape in the detective’s recorder ran out. Appellant then indicated that he had knowledge concerning several burglaries that had occurred in Grant, Pulaski, and Saline Counties. Appellant indicated that he would cooperate in exchange for a deal.
The detective arranged a meeting for the following day with John McQuary, who was Saline County chief deputy prosecutor at the time. Appellant’s mother, Shirley Beard, and two detectives were also present at the meeting. During the meeting, McQuary informed appellant that he would not make any deals or promises but that he would take into consideration any help appellant could provide in recovering the stolen property. McQuary also indicated that he would inform the Grant and Pulaski County prosecuting attorneys that appellant was cooperating. When McQuary refused to put an agreement in writing, Ms. Beard inquired about obtaining an attorney for appellant. In response to Ms. Beard’s inquiry, McQuary allegedly replied that appellant had yet to be charged with anything and that appellant could not be appointed an attorney until after he was charged. Thereafter, appellant assisted all three counties with their resulting burglary investigations.
Appellant pleaded guilty to burglary charges in both Pulaski and Saline counties. On September 27, 2004, appellant was charged, in Grant County, with two counts of residential burglary, theft of property with a value in excess of $2500, theft of property with a value in excess of $500, and being a habitual offender with two or more felonies. Appellant moved to suppress the evidence against him. He argued that the trial court should suppress any evidence that was obtained as a result of involuntary statements made after promises of leniency. Appellant also argued that the trial court should suppress any evidence that was obtained as a result of involuntary statements made after he was informed that he was not entitled to an attorney. The trial court denied appellant’s motion, finding that appellant never invoked his right to counsel and that appellant was in no way coerced by promises of leniency. From that decision, appellant now brings this appeal.
In reviewing a trial court’s denial of a motion to suppress evidence, we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical fact for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court. Swan v. State, 94 Ark. App. 115, 226 S.W.3d 6 (2006). The credibility of witnesses who testify at a suppression hearing about the circumstances surrounding the appellant’s custodial statement is for the trial judge to determine, and we defer to the superior position of the trial judge in matters of credibility. See Otis v. State, 364 Ark. 151, 217 S.W.3d 839 (2005).
In his first argument on appeal, appellant asserts that the trial court erred when it failed to suppress evidence obtained as a result of involuntary statements made by appellant after being informed that he was not entitled to an attorney. A custodial statement is presumptively involuntary; it is the State’s burden to prove by a preponderance of the evidence that a custodial statement was given voluntarily and was knowingly and intelligently made. Knight v. State, 62 Ark. App. 230, 971 S.W.2d 272 (1998). In determining whether a statement is voluntary, the reviewing court makes an independent review of the totality of the circumstances and will not reverse unless the trial court’s findings are clearly against the preponderance of the evidence. Stephens v. State, 328 Ark. 81, 941 S.W.2d 411 (1997). There are two components to the totality of the circumstances test for determining the voluntariness of a custodial statement. Id. First, the statements of the interrogating officers are examined. Id. Second, the vulnerability of the defendant is considered, weighing such factors as age, education, intelligence, repeated or prolonged nature of questioning, delay between receiving Miranda warnings and giving a confession, length of detention, use of physical punishment, and the defendant’s physical and emotional condition. Id.
In the case at bar, the testimony at the suppression hearing established the following. Detective Randy Gibbons of the Saline County Sheriff s Department testified that appellant was taken into custody on August 17, 2004. He said that appellant was informed of his Miranda rights and that appellant signed a consent form. While attempting to interview appellant, Detective Gibbons learned that appellant was a suspect in several burglaries. When appellant indicated that he wanted a deal in exchange for his cooperation, Detective Gibbons arranged for appellant to meet with McQuary. Detective Gibbon testified that, during his interview with appellant, appellant never asked for an attorney. He recalled that, during the meeting with McQuary, appellant’s mother requested an attorney on his behalf and that McQuary informed them that “when he was charged with anything he would go to court and he could be appointed an attorney or she could get him an attorney if he wanted an attorney.”
Shirley Beard, appellant’s mother, testified that, during the meeting with McQuary, she requested an attorney for her son. She said that McQuary informed her that appellant had not been charged with anything and that he could not get an attorney appointed until after he was charged.
Appellant testified that, during his lifetime, he had been interviewed by the police approximately four to six times and that, as a result, he had signed Miranda warnings four to six times. He stated that he basically understood his Miranda rights. Appellant also testified that he had been to prison three times. Appellant said that he asked Detective Gibbons for an attorney during the first three days of his being taken into custody. He said that, during the meeting with McQuary, his mother requested an attorney for him. He said that they were told he could not have an attorney because he had yet to be charged with anything.
John McQuary testified that, in August 2004, he was the Chief Deputy Prosecuting Attorney for Saline County. He recalled meeting with appellant and Ms. Beard on August 18. He said that, at the time, appellant was being held on a parole hold and that appellant had not been arrested on any breaking or entering charges. During his testimony, McQuary stated:
I do not remember his mother requesting an attorney at all. I remember speaking to his mother after we had spoken with [appellant]. This was outside. And I don’t remember the full conversation at all on it. But I do know I do not remember her requesting an attorney for her son at all. Number one, it would have caused me enough hesitancy that I think that I would have remembered that even though she’s not the one that would need to request an attorney in that situation.
He stated that, during the meeting, appellant did not appear to have any mental infirmities that would keep him from making decisions regarding his own welfare.
We conclude that, although appellant testified that he first requested an attorney during the first couple of days of his being taken into custody, the trial court was not required to believe appellant’s testimony. It has been said on numerous occasions that the trial judge is not required to believe the testimony of any witness, particularly that of the accused since he or she is the person most interested in the outcome of the proceedings. Bunch v. State, 346 Ark. 33, 57 S.W.3d 124 (2001).
As to what occurred during the meeting with McQuary, Ms. Beard and McQuary gave conflicting testimony regarding whether or not Ms. Beard asked for an attorney on her son’s behalf. The trial court found that appellant never personally invoked his right to counsel. It is well settled that we defer to the credibility determinations made by the trial judge. See Swan v. State, supra. Furthermore, the right to an attorney is a personal right. Scott v. State, 298 Ark. 214, 766 S.W.2d 428 (1989); Suite v. State, 18 Ark. App. 166, 712 S.W.2d 317 (1986). A third party may not invoke a defendant’s personal right to an attorney. See U.S. v. Scarpa, 897 F.2d 63 (2d Cir. 1990) (holding that once a defendant waived his constitutional rights, those rights could not be invoked by a third party).
Appellant also argues that the trial court erred when it failed to suppress evidence obtained that was the result of involuntary statements made by appellant following false promises of leniency. A statement induced by a false promise of reward or leniency is not a voluntary statement. Pilcher v. State, 355 Ark. 369, 136 S.W.3d 766 (2003). When a police officer makes a false promise that misleads a prisoner, and the prisoner gives a confession because of that false promise, then the confession has not been made voluntarily, knowingly, and intelligently. Roberts v. State, 352 Ark. 489, 102 S.W.3d 482 (2003). In deciding whether there has been a misleading promise of reward or leniency, we view the totality of the circumstances and examine, first, the officer’s statement and, second, the vulnerability of the defendant. Id.
If, during the first step, we decide that the officer’s statements are unambiguous false promises of leniency, there is no need to proceed to the second step because the defendant’s statement is clearly not voluntary. Winston v. State, 355 Ark. 11, 131 S.W.3d 333 (2003). If, however, the officer’s statement is ambiguous, making it difficult for us to determine if it was truly a false promise of leniency, we must proceed to the second step of examining the vulnerability of the defendant. Id. 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 Miranda warnings and the confession. Id.
Detective Gibbons testified that each time appellant was interviewed he was reminded of his Miranda rights. He said that, when appellant indicated he wanted a deal, he told appellant he would “help him as much as I can.” He said that, when he informed McQuary that appellant wanted a deal, McQuary informed appellant that he would not make any deals or promises and that he would only take into consideration any help appellant could provide in recovering the stolen property. Detective Gibbons recalled McQuary telling appellant that he would let the prosecutors in the other counties know that appellant was cooperating and that he would talk to the other prosecutors to “see if they could lump them all together.” He said that McQuary was not specific in what he would do in exchange for appellant’s cooperation. He stated that McQuary did lay out what appellant could be tried for and his possible sentence if found guilty.
Detective Robert Byrd of the Grant County Sheriffs Department testified that he came in contact with appellant on August 18 at the Saline County Criminal Investigation Division. He said that, prior to talking to appellant, he confirmed that appellant had been advised of his Miranda rights. He said that, during his talk with appellant, he informed appellant that he was a suspect in several burglaries in Grant County. He said that appellant indicated that he had knowledge about the burglaries but did not admit that he had any involvement in the burglaries. Detective Byrd testified that he did not employ threats or coercion to get appellant to talk. He said that he talked with appellant again on August 20. He said that, prior to having appellant identify the homes he had burglarized, he confirmed that appellant had been made aware of his Miranda rights. Detective Byrd denied making any promises of leniency in exchange for appellant’s cooperation. He also denied employing any threats.
Ms. Beard testified that appellant was thirty years old, able to read and write, and able to make his own decisions. She recalled asking what would occur if appellant cooperated and that one of the detectives replied that appellant would get a better deal. She said that she asked McQuary to put something down on paper but that he refused and said that appellant would spend less time incarcerated.
Appellant testified that he understood that he did not have to talk to the police officers. He said that, during his meeting with McQuary, McQuary informed him how much time he could receive and said that, if appellant cooperated, he would receive less time. He also said that McQuary informed him that, if he cooperated with the surrounding counties, he could serve his time concurrently. Appellant testified that McQuary refused to put anything in writing, but he believed that they reached an agreement where, in exchange for appellant’s cooperation, McQuary would see that appellant served one sentence and that McQuary would talk to the prosecuting attorneys in Grant and Pulaski counties. He believed that an agreement between him and Saline County would also bind Grant County. Appellant did not remember Detective Byrd making any promises of leniency.
During his testimony, John McQuary stated the following:
I think he was well aware of which avenues are available to defendants. Otherwise, he wouldn’t have known to say, hey, I want a prosecutor down here, you know, right now because only defendants that have been through that before know that it’s the prosecutor is [sic] the only one that can, you know, lay it on the line and it’s held to. So yeah, I mean, [appellant] had spent most of his time in prison or I think he also had some juvenile as well. So he knows the judicial system and knows law enforcement.
McQuary further testified that, when he was notified that appellant wanted a deal, he informed the officers that “I don’t make any kind of deals whatsoever on the front end.” He said that he never indicated to appellant that he had the authority to bind any other district. He testified that he told appellant the following:
I told him... that I knew Eddy Easley and I also knew Larryjegley, and that if, in fact, he assisted all different [sic] law enforcement agencies that I would contact both Eddy Easley, Larryjegley, and, at the time I was still working down in Saline [C]ounty, and that we would see if we could not wrap everything up for him before he went down to the pen so that once he went to the pen, because I told him, I said, you know you’re going to the pen. And I said the best that we can do is try to wrap everything up in all three counties so that when you do go down there it’s all behind you. Once you finish up you’re done, you’re out. But I couldn’t make him any promises as to whether that would occur or not.
McQuary testified that he, in fact, contacted the prosecuting attorneys for Pulaski and Grant Counties.
Here, the statements made to appellant were rather ambiguous; therefore, we must consider whether appellant was particularly vulnerable. Appellant was thirty years old and had been in and out of the criminal-justice system for several years. Plus, each time appellant was questioned, he was reminded of his Miranda rights. Furthermore, it appears that appellant’s sole purpose in requesting McQuary’s presence was so that he could cut a deal with the State. Under the totality of the circumstances, we cannot say that false promises of leniency were made to appellant. Accordingly, the trial court did not err when it denied his motion to suppress his statements made to law enforcement officers.
Affirmed.
Pittman, C.J., and Gladwin, Robbins, Baker, JJ., agree. Griffen, J., dissents.