dissenting. In this case, a police officer exacted a confession from the appellant after guaranteeing him that “the more cooperative you are, the less your sentence gonna be,” by giving him the impression that probation was a possibility, and by hinting that she could make things either difficult or easy for him by recommending bond “from $50,000 on up to $200,000 or to a million.” I must respectfully dissent to an affirmance of the denial of appellant’s motion to suppress.
A statement induced by a false promise of reward is not a voluntary statement. Hamm v. State, 296 Ark. 385, 757 S.W.2d 932 (1988). The supreme court has explained that some statements are clearly a promise of reward, and where so, the confession is deemed involuntary. Durham v. State, 320 Ark. 689, 899 S.W.2d 470 (1995). In other cases, the promise is more ambiguous. In those instances, the reviewing court must also look to the vulnerability of the defendant to aid in the determination. Id.
In my opinion, two promises of reward were made that were so clearly false that it is not necessary to consider the vulnerability of the appellant. See Stone v. State, 43 Ark. App. 203, 863 S.W.2d 319 (1993). Before confessing, appellant expressed concern about the financial welfare of his family should he be imprisoned. In this atmosphere, the officer stated a deliberate falsehood that probation was a possibility. The majority glosses over this lie by saying that, while probation was not an available sentence, it was possible for a portion of a sentence to be suspended. With all due respect, a sentence of probation, with no jail time, does not equate with serving a term of imprisonment followed by a period of suspension or “unsupervised probation.” That there was some discussion of altering lifestyles should imprisonment occur, it remains that the officer’s statements gave appellant the false hope that probation was a possibility. This false statement does invalidate the confession.
As a second false promise of reward, the officer offered appellant an unqualified guarantee of leniency in exchange for his cooperation. In truth, the officer was in no position of authority to make such an assurance. And, the only testimony she gave to support this statement was that in her eighteen years of experience she was “aware of cases where defendants who cooperated received lesser sentences.” This falls short of establishing a foundation upon which to make a guarantee. While the majority relies on the statements of the prosecutor to buttress the officer’s testimony on this point, the law is clear that statements and arguments of counsel are not evidence. Davis v. State, 33 Ark. App. 198, 804 S.W.2d 373 (1991); Burkett v. State, 32 Ark. App. 60, 796 S.W.2d 355 (1990). Regardless of whether there was an objection, the statements of the prosecutor do not qualify as competent evidence upon which to base an affirmance. At the end of the day, appellant received a lengthy twenty-five-year term of imprisonment. This is by no means a fight sentence.
Whether a confession was made pursuant to a promise of leniency is an issue which is decided on a case-by-case basis. Stone v. State, 43 Ark. App. 203, 863 S.W.2d 319 (1993). In the case at bar, credibility is not a factor, as the record speaks for itself. The officer admitted that she made a guarantee of leniency and that she lied when she told appellant that probation was possible. The officer’s testimony, that she informed appellant during a break in the interview that the question of probation and “reduced charges” were matters not within her control, does not improve the State’s predicament. Even then, the officer was still leading appellant to believe that probation was a possible sentencing alternative. And, any question of reduced charges does not speak to the guarantee of a fighter sentence. Besides, it was the officer’s testimony that “I told him that the charge could not be reduced to a misdemeanor, but that he could get less time or probation if he cooperated.” Thus, the testimony concerning lack of control does not stand as a disclaimer.
The officer’s statements were misleading and were intended to deceive. Since a confession resulted, we have no choice but to reverse the trial court’s decision. While I share the prevailing judges’ abhorrence of this offense, I cannot allow this sentiment to cloud my legal analysis of the issue presented.
I am authorized to state that Judge Griffen also joins in this dissent.