Johnny York Doby was convicted of possession of a controlled substance with intent to deliver and theft by receiving a pistol. Having eight prior felony convictions, he was sentenced to a total of 40 years imprisonment.
On appeal he argues that an oral confession used against him was not voluntarily given. He also argues that the court was wrong in refusing to instruct the jury that it could find him guilty of a lesser crime of possession of a controlled substance. These are his legal arguments. Actually, on the witness stand, Doby denied possessing any drugs, having a pistol, or making a statement to the police. His defense was that there was no truth at all to the state’s case.
We affirm the trial court’s decision that the confession was admissible and find the court was right in refusing the instruction because there was no rational basis to give it.
After Doby was arrested and taken to the police station, Detective Sam Williams of the Little Rock Police Department informed him of his rights several times. Williams testified that Doby acknowledged knowing his rights and waived the right to counsel. He said Doby declined to make a written statement but agreed to make an oral statement and did not object to Williams making notes. Williams also said that Doby admitted having the drugs, which consisted of 84 Dilaudid tablets, 44 Valium tablets, and two PBZ tablets. Williams testified from his notes that Doby told him that he sold the Dilaudid for $45.00 each and the Valium for $ 1.00 to $ 1.50 each. He also stated that Doby told him that the .38 caliber snub nose revolver was needed for his protection and that he bought the gun for $30.00 worth of cocaine. Doby admitted to Williams that he sold cocaine in small amounts.
Detective Williams testified that he used no coercion. He further stated that while Doby seemed “weak”, he did not observe any cuts or bruises and did not know if Doby had been struck several times by a police officer. He said Doby never told him he was in pain, never mentioned that he had cancer, and did not appear to be under the influence of any intoxicants.
The arresting officer, Hardy Wayne Forrest, said he knew Doby from previous contacts, having arrested him about a week before this arrest. According to Forrest, he arrested Doby about 9:15 p.m. on April 13, 1984, when he responded to a call about a prowler. When he arrived, he saw Doby walking down the street, he asked him to stop and identify himself and Doby began to run. Forrest chased him, and when he caught up with him, Doby pulled a gun. Forrest told Doby to drop the gun or he would shoot; Doby started to walk away. He was told again to stop and drop the weapon and finally he did.
According to Forrest, when he was handcuffing Doby, Doby resisted and tried to escape. When Doby began to fight, he used force to wrestle him to the ground. Forrest called for assistance. A police cadet was with Forrest at the time. Forrest admitted he struck Doby several times but that he only did so to overcome Doby’s resistance. He denied using a club or flashlight to hit Doby and saw no cuts or bruises on him. He said he checked the weapon and found it had been reported stolen in October 1983. The owner of the gun, who was familiar with guns, later testified that it was worth $200.00 or more.
Doby’s testimony conflicted sharply with the officers’ testimony. He said he did not have a gun, did not resist arrest or have in his possession any drugs. He said he was struck before he was placed in the police vehicle and then was later taken out of the vehicle, searched and beaten. He said he was struck several times with a flashlight after he was handcuffed, and several officers were involved in this beating. He said he was beaten again at the police station, and the officer had to be restrained by other officers. He said that after the handcuffs were removed, this same officer tried to hit him again; but he ducked and the officer struck the wall. He pointed to a bandage on Forrest’s hand as evidence of that blow.
Doby said he was advised of his rights, but he was groggy, in a state of shock, and in some pain from his cancer. He said he had Hodgkins’s Disease, a form of cancer. He denied that he agreed to make a statement and said the officer did not tell him their conversation would be used against him. He denied that the officer asked him if he could take notes. He also denied he ever made a statement.
Doby agreed that no promises or threats were made but said he was beaten. Forrest testified in rebuttal that Doby was never struck while.handcuffed, or with a flashlight, or at the station. He said the ace bandage on his hand was put there because he strained his hand during the scuffle with Doby. He also added that the gun was loaded.
The trial judge sharply questioned the officers during their testimony. At the conclusion of the evidence, he observed:
You were a lot better off before Mr. Doby testified, Mr. Simpson [counsel for the defendant]. I just don’t find him to be worthy of any belief... I just will not accept as truth his version of the incident. The one that I viewed as being very close before .... I’m more convinced of the truthfulness of the police officers. And I feel like the circumstances are such that the defendant was properly advised of his constitutional rights. That he made a voluntary statement.... Those statements will be permitted to be used against him in any kind of forthcoming trial.
Two arguments are made by Doby concerning the confession: it was not voluntary because he was weak and sick and was beaten before giving it, and because, after he was advised of his rights, he expressly stated that he did not wish to write a statement. In Jackson v. State, 284 Ark. 478, 683 S.W.2d 606 (1985), we said:
On appeal, this court makes an independent determination of the voluntariness of a confession, but we do not set aside the trial judge’s finding unless it is clearly against the preponderance of the evidence. Chisum v. State, 273 Ark. 1, 616 S.W.2d 728 (1981). The burden is on the state to show that the statement was made voluntarily, freely, and understandably, without hope of reward or fear of punishment. Tatum v. State, 266 Ark. 506, 585 S.W.2d 957 (1979). Conflicts in the testimony as to voluntariness are for the trial court to resolve. Fuller v. State, 278 Ark. 450, 646 S.W.2d 700 (1983).
In this case we have an obvious situation where the trial court’s finding on credibility should be given due consideration. Doby’s testimony removed any doubts the judge may have had about the voluntariness of the confession. We cannot say the trial court was clearly wrong, and considering the totality of the circumstances, we agree with its findings.
Doby’s second argument also fails because of his testimony. He argues that, as a matter of law, he was entitled to have the jury instructed that it could find him guilty of the lesser offense of possession of a controlled substance. The trial court said it would make no sense to give such an instruction because Doby denied ever possessing any drugs, much less with the intent to sell. Actually, Doby wants the benefit of the possibility that a jury might return a finding of a lesser offense and lesser punishment even though he denies he is guilty.
Doby argues that the jury was entitled to disbelieve him and believe only part of the officers’ testimony. Doby referred to his cancer but offered no proof of it. He also referred to the fact that he used Valium and Dilaudid but offered no proof of a prescription. Indeed, the state offered evidence that the normal dosage of Dilaudid was an eight to ten day supply at the most, and one four milligram tablet (which is the size tablet found on Doby) would be the most anyone could take at one time.
Doby rested his entire defense on his credibility against that of the officers. So as a practical matter, it came down to whom should the jury believe. There would be no rational basis to find the officers lied in part in this case. Their testimony so sharply conflicted with Doby’s that it would not be reasonable to expect a jury to pick and choose and come up with a finding of a lesser offense when to do so would require a finding that Doby was a liar and the officers liars in part. If Doby had admitted possessing the drugs, it might make sense to require the charge of the lesser offense. But his defense was that he was entirely innocent of any crime: he possessed nothing. Therefore, the jury only had one question to decide, whether he was guilty as charged.
Doby relies on two recent court of appeals’ decisions for his argument: Flurry v. State, 18 Ark. App. 64, 711 S.W.2d 163 (1986); Holloway v. State, 18 Ark. App. 136, 711 S.W.2d 484 (1986). In Flurry the charge was rape, and the defense was a total denial of any crime. The court of appeals decided it was error to refuse to give a lesser included offense instruction of carnal abuse in the third degree. The court said there was a rational basis but did not say exactly what it was. Instead, the court discussed several cases and seemed to rely on language in Fike v. State, 255 Ark. 956, 504 S.W.2d 363 (1974), which says a jury can believe or disbelieve anything. We are reversing Flurry this date on review.
In Holloway the charge was aggravated assault, and the court, again, held it error to fail to give a lesser offense instruction on lesser assaults. The defense was alibi. The court of appeals justified reversing the case because there was no direct evidence that the gun was loaded. Again, the opinion seems to rely on the language from the Fike case. The Fike case was decided before Ark. Stat. Ann. § 41-105 (3) (Repl. 1977) was adopted as part of the Criminal Code, effective January 1, 1976.
Our recent cases are entirely inconsistent with the rationale of these court of appeals’ cases. In Frederick v. State, 258 Ark. 553, 528 S.W.2d 362 (1975), the charge was assault with intent to rape. We rejected the argument that a lesser charge of simple assault should have been submitted to the jury, finding that it was a question of being guilty of assault with intent to rape or nothing at all. We refused to apply the broad language of the Fike case. In Sargent v. State, 272 Ark. 336, 614 S.W.2d 503 (1981), the charge was first degree murder. A manslaughter instruction was requested. The defense was that the shooting was accidental or in self-defense. We relied on Ark. Stat. Ann. § 41-105 (3) and held under those circumstances a manslaughter instruction would have been useless, since there was no rational basis for it: it was first or second degree murder or nothing at all. In Smith v. State, 277 Ark. 403, 642 S.W.2d 299 (1982), the charge was aggravated robbery. The defendant denied entirely the charge. A lesser instruction on robbery was sought. We found no error in denying this request. We held again there must be some rational basis to give such an instruction, and, obviously, there was none. Smith was guilty of aggravated robbery or he was innocent. Roberts v. State, 281 Ark. 218, 663 S.W.2d 178 (1984), involved a charge of burglary and theft of property. The defense was alibi: he was not there to commit any offense. We found no error in denying a request for a lesser offense instruction on theft by receiving. There was no rational basis for it. According to the appellant, he had received the allegedly stolen goods several years before they were stolen. The appellant’s own testimony was inconsistent with such a charge. So it made no sense to confuse the jury.
We have the same case before us as a matter of principle. Doby denied he even possessed any drugs or a gun. It was a case of all or nothing.
There is little doubt that the court of appeals is going in a different direction than we are on this principle of law. When the Flurry and Holloway cases are laid beside our recent cases, there is an obvious difference in approach to the problem and resolution of it. For that reason, the Flurry and Holloway cases are overruled on the principle of law at issue here: a lesser included offense instruction need not be given unless there is a rational basis.
Affirmed.
Purtle, Dudley, and Newbern, JJ., dissent.