dissenting.
The suppression of the 8:55 p.m. confession by the majority eviscerates the State’s case against Osburn, making a retrial a remote possibility. While I agree wholeheartedly that involuntary confessions must be suppressed under our basic constitutional principles, I take issue with the majority’s analysis in this case. I disagree that Osburn did not reinitiate contact with the police. I further disagree that Os-burn’s will was overborne by the police agents’ reference to his daughter, Holley, in an interrogation that took place four hours earlier. For these reasons, I would affirm.
a. Right to Counsel
In an analysis of whether Osburn reiniti-ated discussion with police agents and waived his right to counsel, the time line in this case is all important. At 4:45 p.m., there was a lengthy interrogation of Os-burn by FBI Agent Boshears and CID Agent Newton. Toward the end of that session, Osburn asked for an attorney, and the questioning stopped. There was no confession made by Osburn.
Prior to the second interrogation of Os-burn at 7:25 p.m., the circuit judge found that the following occurred:
[T]he defendant did in this particular statement [the 7:25 p.m. statement] evince a willingness or desire for generalized discussion about the ^investigation, when he said to Agent Boshears, “I am in a mess.” The further conversation between the defendant and Boshears from that point led eventually to the defendant stating he wanted to talk further about the situation and “do the right thing.”
Earlier, the judge had said in his order Osburn then stated, “I’m in a mess.” Boshears responded that he relies on his faith in such circumstances. Osburn asked Boshears to pray for him. Bosh-ears stated he would, and had already. Osburn then became emotional, stating he wanted to see his daughter. Bosh-ears advised him to spend some time in prayer when he was in jail. Osburn explained he did not feel worthy, and had not been doing well in life. Bosh-ears asked if he wanted to keep talking. Osburn said he wanted to do the right thing and talk. Boshears then opened' the door and called Newton, telling him Osburn wanted to continue their conversation. Boshears (sic) notes regarding this conversation were admitted by the Defendant for impeachment purposes as Defendant’s Exhibit A. The Court does not find it to be substantially different from his testimony.
After the 7:25 p.m. confession, Osburn reinitiated contact with law enforcement a second time before the 8:55 p.m. confession, which is the confession that was presented to the jury in the State’s case in chief. Here is what the circuit judge found transpired in connection with that confession:
After the defendant’s family members left, the defendant approached Mr. Snyder [deputy sheriff and sheriff-elect] and stated, “Jim that was not me that did that to that girl.” Further conversation ensued, which led to Snyder calling in Agent Boshears and Rick Newton, and a further taped interview with defendant. Prior to this interview [8:55 p.m.], the defendant was given another Miranda, rights statement and signed a waiver of those rights. He indicated he wanted to participate in the interview, which contains admissions.
The majority does not dispute that Os-burn reestablished contact with law enforcement [49before the 8:55 p.m. confession and, thus, complied with the Edwards case. Rather, the majority argues that this confession was tainted by earlier events because it was fruit of the poisonous tree.
I see no violation of Osburn’s right to counsel for the 8:55 p.m. confession. First, Osburn initiated contact with the police before the 7:25 p.m. confession, which the State did not use, and also did so before the 8:55 p.m. confession. Second, he was given his Miranda warnings before each confession and certainly knew what his right to counsel was, since he had asked for an attorney toward the end of his 4:45 p.m. interrogation.
It is a real stretch to hold, as the majority does, that Osburn could not change his mind three or four hours later about talking to the police without having counsel present. Certainly, the United State Supreme Court has acknowledged that this can occur. See United States v. Bayer, 331 U.S. 532, 67 S.Ct. 1394, 91 L.Ed. 1654 (1947). And, yet, the majority concludes that the 8:55 p.m. confession, where no one disputes that Osburn initiated contact with Deputy Sheriff Snyder after visiting with his family, was irrevocably tainted. The facts simply do not support this conclusion.
The seminal case on the point of reopening dialogue with law enforcement after invoking the right to counsel is Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983) (plurality opinion).1 In Bradshaw, the Court held that the defendant could reinitiate contact and that | -nthe defendant’s comments must evince “a willingness and a desire for a generalized discussion about the investigation” and relate “directly or indirectly to the investigation.” Id. at 1045-46, 103 S.Ct. 2830. Surely, that occurred with Osburn’s “I’m in a mess” reinitiation before the 7:25 p.m. confession and his “that was not me” comment before his 8:55 p.m. confession. The majority, nevertheless, casts a blind eye to these facts and relies instead on an Illinois Supreme Court case (People v. Olivera, 164 Ill.2d 382, 207 Ill.Dec. 433, 647 N.E.2d 926 (1995)), where procedural questions like “What happened?” at the lineup and “What happens next?” were asked. That is not an analogous or comparable situation to our facts, where Osburn initiated contact by comments to police officers relating to the investigation and to his predicament.
In sum, the majority has found that the circuit judge clearly erred in his findings of fact. To be sure, the principle of right to counsel is of grave importance, but it can clearly be waived under Oregon v. Bradshaw even after the right has been invoked by an accused like Osburn. That is what happened in this case.
I would affirm on this point,
b. Coercion
Next, the majority holds that the police agents’ references to Osburn’s twenty-year-old |fi1 daughter, Holley,2 in the 4:45 p.m. interrogation about cutting her loose after the interview, coerced a confession that occurred four hours later at 8:55 p.m. That holding is at odds with Arkansas case law and the case law of many of our sister states as well.
As an initial point, the majority’s discussion of this issue is unnecessary and is dictum because the majority has already suppressed the confession under point one. Be that as it may, I will address the coercion issue.
The question posed by the majority opinion is whether law enforcement acted within appropriate boundaries by telling Osburn his daughter was under suspicion and they would “cut her loose” if he talked. An American Law Reports annotation gives a thorough examination of what state and federal courts have done in this area. See Carroll J. Miller, Annotation, Volun-tariness of Confession as Affected hy Police Statements that Suspects’ Relatives Will Benefit by the Confession, 51 A.L.R.4th 495 (1987 & Supp.2007). Clearly, the holdings are mixed based on the facts of each case and based on the connection of the confession to a perceived benefit to the relative.
Rather than discuss this exhaustive ALR report, the majority cites a California case for the general principle that threats to arrest family members can render a subsequent confession involuntary. See People v. Weaver, 26 Cal.4th 876, 29 P.3d 103, 111 Cal.Rptr.2d 2 (2001). No one disputes that, but whether the confession should be suppressed depends |Baon the facts of each case. The majority then relies on Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963), where an accused was told he could not call his wife until after he was booked and charged with robbery.
Those express or direct threats do not exist in the instant case. Furthermore, unlike the Haynes factual scenario, Holley was a key witness because she was with her father the morning of the murder and was under suspicion herself for making contradictory statements to police officers and for interfering with the investigation. The circuit judge recognized this fact and found in his order that no pressure relating to Holley caused Osburn to make any incriminating statements. The majority, however, applies the fruit-of-the-poisonous-tree doctrine to reverse the circuit judge on this point but cites no case law for this application.
Several additional points militate against the majority’s coercion conclusion. First, Osburn did not confess at the 4:45 p.m. interrogation when the majority contends the pressure regarding Holley was brought to bear on him. The majority quotes extensively from that session with law enforcement, but rather than feel pressured to confess, Osburn did not confess and invoked his right to counsel at the conclusion of the interview. The facts speak for themselves. His will was not overborne.
Added to this is the fact that nowhere in the 4:45 p.m. interrogation is there a specific or direct threat of arrest or prosecution made toward Holley. There were references to public embarrassment, because she would be a key witness at trial since she had been taken to work |63by Osburn the morning of Casey Crowder’s murder. But there were no direct threats of arrest or charges, even though Holley was under suspicion because of contradictory statements she had made during the course of the investigation and because she would not let her brother, Kenny, Jr., answer questions. CID Agent Newton testified at the suppression hearing that she became a suspect for potential prosecution for obstruction of justice.
Nor did Osburn ever testify that he was coerced. In fact, he did not take the stand at trial or even testify at the suppression hearing. FBI Agent Boshears and CID Agent Newton did say they would “cut [Holley] loose” in the 4:45 p.m. investigation after they were done with Osburn. But CID Agent Newton also testified at the suppression hearing that he had no knowledge that Holley was being questioned at the time of the interrogation with Osburn. FBI Agent Boshears added that he was not aware that Holley was going to be detained and that she was not detained at that time by him. Vague statements about cutting Holley loose was a ploy used by law enforcement in its arsenal of tricks, but it hardly rises to the level of a direct threat of a criminal charge and prosecution against Holley unless Osburn confessed.
Other courts, including Arkansas, have dealt with the precise issue of psychological tactics using family members and affirmed their usage. Just ten years ago, in a case where alleged threats were made against the mother and brother of the accused to obtain a confession, this court held as follows:
|MEven if Mr. Rankin’s testimony were believed by the trial court, the police may use some psychological tactics and coercive statements in eliciting a custodial statement from the accused so long as the means employed are not calculated to procure an untrue statement, and the accused’s free will is not completely overborne. Conner v. State, [334 Ark. 457, 982 S.W.2d 655 (1998) ]. We have previously held that an officer’s threat to arrest the accused’s wife, although obviously intended to influence the accused, did not render the statement involuntary. Hood v. State, 329 Ark. 21, 947 S.W.2d 328 (1997). In this case, Mr. Rankin decided to give his confession right after Detectives Cooper and Addison showed him the murder weapon. Under these circumstances, we are unable to say that Mr. Rankin’s free will was completely overborne by any alleged threat to detain his mother and brother, or that such a threat procured an untrue statement.
Rankin v. State, 338 Ark. 723, 729, 1 S.W.3d 14 (1999); see also Hood v. State, 329 Ark. 21, 947 S.W.2d 328 (1997).
Similarly, in Hood v. State, we said:
As to the officers’ appeal to Hood to consider the health of his wife and the threat of her arrest, we have observed that the police may, without violating an accused’s rights, attempt to play on his sympathies or explain to him that honesty is the best policy, provided that the accused’s decision to make a custodial statement is voluntary in the sense that it is the product of the accused’s exercise of his free will. Id.; see also Misskelley [v. State], supra [323 Ark. 449, 915 S.W.2d 702 (1996) ] (police may use some psychological tactics in eliciting a custodial statement from an accused). Although the interrogating officers’ statements were obviously intended to influence Hood, we are unable to say that they were improper or contrary to basic notions of fairness, or that they procured an untrue statement.
329 Ark. at 33-34, 947 S.W.2d at 335. Is the majority overruling Rankin and Hood with today’s decision?
In recent years, many state courts have faded to find a confession involuntary based on promises relating to family members for a variety of reasons. See, e.g., Cain v. State, 594 N.E.2d 835, on reh. remanded, 599 N.E.2d 625 (Ind.App. 1992) (in order to show involuntariness, must show direct threats against family members); Com. v. Raymond, 424 Mass. 382, 676 N.E.2d 824 (1997) (suggestion that mother might be prosecuted as an accessory for lying about whereabouts of car not sufficient coercion); Reynolds v. State, 327 Md. 494, 610 A.2d 782 (1992) (where defendant investigated for sexual abuse of two daughters, statement by officer that truth would “help” one daughter did not induce confession); State v. Stephenson, 144 N.C.App. 465, 551 S.E.2d 858 (2001) (officers’ statements that son was well behaved, that they observed closeness defendant had with her son, and that son deserved a better life than he was now experiencing did not amount to coercion); Martinez v. State, 127 S.W.3d 792 (Tex.Crim.App.2004) (confession not coerced where detective made no positive promise to defendant that if he confessed, brother and sister would not be charged); State v. Gonzales, 46 Wash.App. 388, 731 P.2d 1101 (1986) (promise by detective to attempt to get suspect’s wife released from custody would not alone render confession involuntary).
Had the law enforcement officers specifically and directly threatened to charge Holley as an accessory to murder if Os-burn did not confess, my view of the case would be different. But those are not the facts. Rather, vague psychological tactics involving Holley were employed. That is permissible under our case law. See Rankin v. State, 338 Ark. 723, 1 S.W.3d 14; Hood v. State, 329 Ark. 21, 947 S.W.2d 328. Moreover, Holley was under suspicion.
|MAs a final point, it is important to note that Holley’s name never came up in the later 7:25 p.m. interrogation or the 8:55 p.m. interrogation, both of which resulted in confessions. Plus, Osburn met with Holley; Kenny, Jr.; and his mother for a fifteen-minute discussion before the 8:55 р.m. confession. Any misconceptions about Holley’s status, assuming there were any, were clarified, no doubt, at that time. The majority simply has not made a case for coercion, either under the law or these facts.
I would affirm on this issue as well.
с. Connie Sparks — WMb)
I further disagree with the majority’s analysis of the Rule 404(b) issue for the same reasons set out in Chief Justice Hannah’s dissenting opinion on this point. The Sparks offense and the Crowder murder have little factual commonality but, more importantly, the Sparks bad act is twenty-seven years old. With the notable exception of pedophile cases (see, e.g., Allen v. State, 374 Ark. 309, 287 S.W.3d 579 (2008)), I know of no Arkansas cases that have gone so far back in time to prove intent or plan under 404(b). The more appropriate reversal and remand for trial would be on this point.
But any holding on this twenty-seven-year-old bad act is largely irrelevant in light of the fact that the majority has thrown out the 8:55 p.m. confession. Because of this, I am exceedingly doubtful that a retrial will occur where the 404(b) issue would be resurrected.
For all of these reasons, I respectfully dissent.
. Justice Powell was the fifth vote in favor of renewed interrogation in Bradshaw, and in his concurrence, he eschewed a reinitiation test, which he considered to be vague, in favor of examining all circumstances surrounding the second statement such as whether the defendant was re-Mirandized.
. The record spells her name "Holley,” but she is referred to as “Holly” in the interview transcripts.