concurring. I concur that the alleged violation of Rule 2.3 does not merit a reversal in this case but write because I have concluded that Johnson was in custody for all intents and purposes on May 2, 1994. This was the third time that he had been questioned by police officers in connection with Cheek’s murder. On the first occasion [April 26, 1994], he was given the Miranda warnings. On the second occasion [May 1, 1994], he was not advised of his Miranda rights. On May 2, 1994, he was not advised of his rights until after he had made the inculpatory statement, “No, it was a two-by-four.” After he made that statement, he was read his rights, and he gave a full statement, which included an admission that he had murdered Cheek. The issue then is whether Johnson was denied his Fifth Amendment right against self-incrimination and his Sixth Amendment right to counsel.
My conclusion that Johnson was in custody is premised on several factors. He was interrogated on May 2 for four hours (from 9:00 a.m. to 1:00 p.m.) by multiple police officers. Sergeant Howard admitted that the investigation had centered on Johnson by May 2, and at trial he testified that there were never less than three police officers present during the interrogation and that there may have been as many as six or seven officers on occasion. Sergeant Howard’s testimony also reveals that the grilling was intense and at times the officers called Johnson “a liar.” His shoes were removed to conduct tests on what appeared to be blood splatters. Hence, he was barefoot. He was questioned about the blood spots and again called a liar when he denied knowledge of blood on his shoes.
Under these circumstances, Johnson’s freedom was curtailed to a degree associated with formal arrest. See Berkemer v. McCarty, 468 U.S. 420 (1984); State v. Spencer, 319 Ark. 454, 892 S.W.2d 484 (1995). Custodial interrogation is “questioning initiated by law enforcement officers after a person has been taken into custody or is otherwise deprived of action in any significant way.” Spencer v. State, 319 Ark. at 457, 892 S.W.2d at 485. The test is an objective one of how a reasonable person would view the situation. Stansbury v. California, 114 S.Ct. 1526 (1994). Johnson was barefoot and undergoing a prolonged and intense interrogation by several officers after being called to the police station for a third time. This was clearly custodial interrogation in my judgment.
The question then becomes whether he was appropriately Mirandized before he made his two-by-four admission. I do not believe he was. His warnings given six days earlier had become stale. We did refuse to suppress a statement in Barnes v. State, 281 Ark. 489, 665 S.W.2d 263 (1984), where the lapse between Miranda warnings and the statement had been three or four days. But in Barnes, the lapse of time was not as great, and the defendant was under arrest from the beginning. Also, in Barnes the confession was not obtained through interrogation but rather as a compulsion on the defendant’s part to repent and confess.
Irrespective of whether the two-by-four statement was given in accordance with Miranda requirements, Johnson then made a complete statement after being advised of his rights on May 2. Confessions voluntarily made after proper Miranda warnings and waivers are not tainted by previous unwarned statements unless those unwarned statements were deliberately coerced or improper tactics were utilized. Oregon v. Elstad, 470 U.S. 298 (1985); Weaver v. State, 305 Ark. 180, 806 S.W.2d 615 (1991). Though I believe the questioning leading up to the two-by-four statement was custodial interrogation, I am not convinced that it was so impermissibly coercive and improper as to taint the later, valid confession. For example, Sergeant Howard testified that the two-by-four statement “came almost out of the blue.” Accordingly, I concur.