APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT [NO. CR-13-481]
HONORABLE JOHN HOMER WRIGHT, JUDGE
Hancock Law Firm, by: Charles D. Hancock, for appellant.
Leslie Rutledge, Att'y Gen., by: Karen Virginia Wallace, Ass't Att'y Gen., for appellee.
KENNETH S. HIXSON, Judge
Appellant Ethan Patrick Sallee appeals his conviction for the first-degree murder of Dan Roberson. Appellant was tried before a jury in Garland County, and he was sentenced to thirty years in prison. Appellant argues on appeal that his conviction should be reversed because (1) the trial court clearly erred in denying his motion to suppress his custodial statement given to the Garland County Sheriff's Department, and (2) the trial court erred by permitting a sheriff's department officer to testify about appellant's statements while referring to the officer's typewritten summary of the interview. We disagree with appellant and affirm.
Summary of Facts
Because appellant does not contest the sufficiency of the evidence to convict him of murder, we briefly recite the facts to place his appellate arguments in context. Dan Roberson's partially concealed body was found in July 2013 in a wooded area in Garland County. Roberson died due to stab wounds to the chest. Roberson's truck had been stolen, and it was later discovered abandoned. There was an obvious attempt to burn the vehicle. Appellant's DNA was found on a cigarette butt located in the stolen truck. Appellant and two other men were developed as suspects. Appellant was taken into custody, waived his Miranda rights, and participated in an interview. Law enforcement officers attempted to electronically video and audio record the interview via a DVR system associated with a computer. The interview was conducted by Cpl. Michael Wright with the Garland County Sheriff's Department accompanied by Scott Falls, a special agent with the FBI. Wright took contemporaneous notes during the interview.
Wright later learned that the electronic recording system had malfunctioned and the interview did not record. A couple days after the interview was conducted, Wright typed up his contemporaneous notes summarizing the interview. The summary was five typewritten pages. The summary contained information that the appellant at first denied knowing anything about Roberson's disappearance, but he later admitted that he and two other men (Chestley Gaston and Robbie Glover) followed Roberson's truck home, engaged Roberson in conversation, and then attacked Roberson. Appellant said that Gaston choked Roberson, but he helped by holding his hand over Roberson's mouth. Appellant stated that he and Gaston took Roberson's truck, after Roberson was loaded into the back of it. According to appellant, Gaston was the driver and he was the passenger; appellant helped discard items out of the truck. Appellant claimed that Gaston was the one who must have stabbed Roberson in the chest and that Gaston was the one who dumped Roberson's body in the woods. Appellant admitted that they unloaded the truck's tool box at Glover's house. Appellant explained that they fled to Texas but later returned to Arkansas; appellant and Glover attempted to burn the truck where they abandoned it in Arkadelphia. Appellant claimed that he participated because Gaston would get violent if he did not do what Gaston wanted him to do.
Appellant filed a pretrial motion to suppress his statements, contending that "he did not make a knowing, voluntary, and intelligent waiver of his rights. As such any purported waiver and subsequent statement was obtained in violation of Miranda and should not be allowed into evidence in the State's case." During the hearing on the motion to suppress, appellant's attorney added to the suppression argument that the State failed to electronically record the interview and that Wright's notes were not typed until a couple days after the interview, supporting suppression of the evidence under a totality-of-the-circumstances view. The State responded that this was a knowing, intelligent, voluntary waiver of rights, and that the State did not intend to offer Wright's notes into evidence. The motion to suppress was denied, the trial court finding that (1) appellant made a knowing, intelligent, and voluntary waiver of his Miranda rights, and (2) despite an attempt to video record the interview, an equipment error caused it not to be recorded. The trial court concluded that the totality of the circumstances did not warrant suppression of appellant's statements made during the interview.
During the trial, appellant repeatedly renewed his motion to suppress, and each time, the motion was summarily denied. During Cpl. Wright's testimony, Wright stated that it would help if he were permitted to review his summary while testifying. The appellant did not object to Wright's referring to his summary. Wright continued his testimony and described what was said by appellant during the interview, including that appellant eventually admitted his involvement with the disappearance of Roberson. The jury rendered a guilty verdict. This appeal followed.
I. Point One on Appeal
Appellant first contends that our rules of criminal procedure do not mandate, but should mandate, the electronic recordation of custodial interrogations in criminal cases; and that if the custodial interrogation is not recorded, the statement should be excluded. Appellant cites to Arkansas Rule of Criminal Procedure 4.7, which states in relevant part that:
(a) Whenever practical, a custodial interrogation at a jail, police station, or other similar place, should be electronically recorded.
(b)(1) In determining the admissibility of any custodial statement, the court may consider, together with all other relevant evidence and consistent with existing law, whether an electronic recording was made; if not, why not; and whether any ...