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Friar v. State

Supreme Court of Arkansas

June 9, 2016



          Janice W.Vaughn, Arkansas Public Defender Commission, for appellant.

          Leslie Rutledge, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., for appellee.

          COURTNEY HUDSON GOODSON, Associate Justice

         Appellant Robert Friar appeals the sentencing order entered by the Jackson County Circuit Court convicting him of capital murder, two counts of attempted capital murder, and seven counts of committing a terroristic act. For these crimes, the circuit court sentenced Friar to life in prison without parole for capital murder[1] and, as an habitual offender, to consecutive terms of imprisonment totaling 165 years for the remaining offenses. For reversal, Friar contends that the circuit court erred by denying his motion to suppress, in granting the State's motion in limine, and by declining his request to provide the jury with instructions on lesser-included offenses. We affirm on all issues.[2]

         I. Factual Background

         Our review of the record reveals that Delana Aguirre and her children lived in a duplex in the Crossroads area of Newport, Arkansas, with her sister and her mother, Leslie Curl. During the early morning hours of February 27, 2013, Friar fired seven shots from outside the home through the window of Aguirre's bedroom where she had retired for the evening with two of her children. Aguirre survived three gunshot wounds-one to her back, one to her buttocks, and another to her arm. Unfortunately, Aguirre's twenty-month-old daughter, Tacquari, perished after being struck by a single bullet. Aguirre's other child was unharmed.

         According to the testimony, Friar and Aguirre had been dating for seven months, and the relationship had become volatile. Aguirre testified that Friar had physically abused her, saying that he had choked her, had struck her with a closed fist, and once had hit her with a belt buckle. She also testified that Friar had threatened her life and the lives of her children and her mother. On the evening of the shooting, Friar sent Aguirre an ominous text message saying, "YEA I WILL HAVE THE LAST SAY SO U N UR MOM TELL D KIDS U LOVE THEM." At 2:32 a.m., mere seconds before the shots rang out, Friar placed a cellular phone call to Aguirre, wherein he said something that she could not understand, and then disconnected the call. Aguirre testified that she was sitting on her bed smoking a cigarette when Friar called and that the light from her phone was shining in the direction of the window.

         The testimony also established that Friar was in close proximity to Aguirre's home at the time of the shooting. Friar lived with his mother near Garfield Street, which was at least a couple of miles from Aguirre's residence. However, that morning he had been riding in a vehicle with Bobbie Woodruff, who parked beside her aunt's house, which was near Aguirre's duplex. Bobbie testified that Friar got out of the vehicle to relieve himself; that he did not return to the vehicle; and that she picked him up a short while later around the corner from where she had parked. The evidence showed that Friar and Woodruff exchanged text messages and phone calls within minutes of the shooting and before they reconnected.

         Officers arrested Friar that morning at 4:12 a.m. on Garfield Street and transported him to the Jackson County Sheriff's Office. During the booking process, officers seized Friar's clothing and his cell phone. At that time, Friar was heard to say, "Baby mama drama. It is what it is." That morning, agents of the Arkansas State Police attempted to question Friar, but Friar refused to speak with them. However, later that morning, Friar gave a statement to an officer with the Newport Police Department, and the agents from the state police subsequently interviewed Friar twice that same day. In his three statements, Friar denied that he had been involved in the shooting.

         II. Motion to Suppress

         As his first point on appeal, Friar argues that the circuit court erred by denying his motion to suppress. His argument is multifaceted. Friar contends that there was no probable cause for his warrantless arrest, which requires the suppression of his statements and of the evidence collected from his clothing and his cell phone.[3] In addition, Friar argues that the circuit court should have suppressed his statements because the police failed to honor his requests for an attorney and to remain silent. He also asserts that his statements were not voluntarily given but were instead the product of coercion, intimidation, deception, and ignorance.

         A. Probable Cause

         We first address the issue of probable cause for the arrest. The record of the suppression hearing reflects that Officer Chris McClellan of the Newport Police Department was the first officer to respond to the scene and that his superior, Lieutenant Allen Edwards, arrived moments later. When Edwards entered the residence, he instructed McClellan to secure the area outside the home. Edwards said that Curl was hysterical and that Aguirre was conscious and sitting in a pool of blood on the floor in the hallway. Edwards testified that he immediately began to clear the house to make sure that the perpetrator was not still present. With that purpose in mind, he asked Curl who shot Aguirre and the child. Curl replied that it was "Junior, " whom she identified as Friar. Edwards said that Curl also informed him that Friar had sent Aguirre a text message that night telling her and Aguirre to "kiss their babies" and that Friar had called Aguirre moments before the shots were fired. He testified that Curl also mentioned that Aguirre and Friar had recently broken off their relationship. Edwards explained,

I asked who did this. They told me. At that point I wasn't interrogating them trying to gather every detail that would - like our investigators would be doing. I was trying to make the scene safe. Provide aid. They said he did it. I relayed that information along to the other officers and - you know, I told Patrolman McClellan later on, you know, get one of the deputies. Go to the lower end of town. See if you can locate Robert Friar and take him into custody.

         Edwards further testified that he had known Friar since childhood. He said that sometimes large crowds gathered at the lower end of town and that Friar was often combative with the police on those occasions. Edwards described Friar as an "instigator" and said that Friar was the main focus of attention when dispersing the crowd. Edwards recalled a previous incident in which Friar had been accused of shooting a firearm at another person. For reasons of safety, Edwards had made other officers aware of Friar's aggressive behavior.

         In his testimony, McClellan stated that Edwards sent him to provide security at the hospital where the victims had been taken. He said that he spoke with Aguirre, who told him that Friar had shot her and that Friar had purchased a gun from Bobbie Woodruff. McClellan stated that Aguirre implied that Friar was her ex-boyfriend. When McClellan was dispatched to take Friar into custody, he located Friar walking down Garland Street.

         Detective Chuck Benish also testified at the hearing. When he arrived at the duplex, Aguirre and Tacquari had been taken to the hospital. Benish said that Edwards advised him that the shooter had been outside the residence because shell casings were located near the window that was riddled with bullet holes. Benish drove to the hospital and spoke with Aguirre. She told him that Friar had shot her and that she had received a phone call from Friar just prior to the shooting. Aguirre also informed Benish that Friar had sent a text message to her that night saying that "[Aguirre] and her mother better tell their kids they loved them." Benish recalled that Aguirre told him that Friar had asked her which bedroom she was sleeping in that night and that she had informed Friar that she was sleeping in her children's bedroom, as she did not have one of her own. Benish testified that Aguirre never told him that she saw the shooter and that Aguirre informed him that she had not seen Friar in two days.

         For reversal, Friar argues that the officers neither individually nor collectively had probable cause to arrest him. He contends that the evidence amounts only to a strong suspicion based on an ambiguous text message and a phone call immediately prior to the shooting. Friar points out that no one claimed to have seen the shooter and that the police located him after the shooting on the other side of town. Friar asserts that the statement he made during booking, the other statements he gave to the police, his clothing, and the information contained on his cell phone must be suppressed as the fruits of the unlawful arrest.

         In reviewing the denial of a motion to suppress evidence, this court conducts a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the circuit court. MacKintrush v. State, 2016 Ark. 14, 479 S.W.3d 14. A finding is clearly erroneous, even if there is evidence to support it, when the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been made. Johnson v. State, 2015 Ark. 387, 472 S.W.3d 486.

         This court has held many times that probable cause to arrest without a warrant exists when the facts and circumstances within the collective knowledge of the officers and of which they have reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been committed by the person to be arrested. Friend v. State, 315 Ark. 143, 865 S.W.2d 275 (1993). Such probable cause does not require that degree of proof sufficient to sustain a conviction; however, a mere suspicion or even "a strong reason to suspect" will not suffice. Id. at 147, 865 S.W.2d at 277. The assessment of probable cause is based on factual and practical considerations of prudent men, rather than the discernment of legal technicians. Roderick v. State, 288 Ark. 360, 705 S.W.2d 433 (1986). It is based on the officers' knowledge at the moment of the arrest. See Friend, supra. The determination of probable cause is also measured by the facts of each particular case. Wong Sun v. United States, 371 U.S. 471 (1963).

         Here, the officers were advised by Aguirre and Curl of their belief that Friar was the shooter. In addition, they were told that Friar and Aguirre had recently broken up and that he had sent a threatening text message to Aguirre that night. The officers were also informed that Friar had asked Aguirre which bedroom she was sleeping in that night and that he had called her seconds before the shooting. The officers were also advised that Friar had purchased a gun. Moreover, they were aware that Friar was known to be aggressive and combative and that he had been investigated in connection with another shooting. When the totality of the circumstances is considered, we are unable to say that the circuit court clearly erred in ruling that the officers had probable cause to arrest Friar. Therefore, we affirm the circuit court's denial of the motion to suppress on this basis.

         B. Miranda Rights

         In addition to the absence of probable cause, Friar argues that the officers violated his right to counsel and his right to remain silent. He contends that, as a consequence, his three statements to the police should have been suppressed.

         At the suppression hearing, it was disclosed that Friar had asked for an attorney multiple times during the booking process. Initially, the officers did not tell Friar why he had been arrested. However, Sheriff David Lucas informed Friar about the reason for his arrest within thirty to forty-five minutes of Friar's arrival. Once the booking process had been completed, Friar was placed in a holding cell. Agents Wendall Jines and Michael McNeil of the Arkansas State Police had been tasked with providing assistance to the Newport Police Department in the investigation. At 7:19 a.m., Jines and McNeil attempted to interview Friar. They advised Friar of his Miranda rights, and Friar indicated that he understood them by signing a rights form. However, after completing the rights form, Friar immediately invoked his right to counsel and his right to remain silent. Consequently, the agents discontinued the interview, and no statement resulted from the encounter.

         Michael Smith, a jailer whose shift began that morning at 8:00 a.m., testified that Friar got his attention and asked to speak with Officer Benish. Benish then came to the jail to meet with Friar. Benish testified that he reminded Friar that he had earlier declined to visit with the agents from the state police. He said that Friar explained that he did not speak with the agents because he did not know them but that he wanted to talk to Benish. Benish informed Friar of his rights, and Friar agreed to waive them. The rights form signed by Friar was completed at 8:22 a.m., and the interview lasted approximately twenty minutes. In his statement, Friar denied that he had a gun and that he had been in the vicinity of Aguirre's home after midnight.

         Friar gave a statement to Agents Jines and McNeil at 11:19 a.m. Jines testified that he learned that Friar had initiated contact with Benish after refusing to speak with him and McNeil earlier that morning. At the beginning of the taped interview, Jines said to Friar that Friar's agreement to speak with Benish gave Jines the opportunity to talk to him. Jines did not repeat the Miranda warnings. Jines testified that Friar did not indicate that he did not wish to speak with them or that he wanted an attorney. During this interview, Jines asked Friar where he was at 2:32 a.m. that morning. Friar told him that he had been on Garfield Street.[4] However, after Jines told Friar that his location could be pinpointed by using cellphone towers, Friar stated that he was in the Crossroads area of town at that time. At the conclusion of the interview, Friar told the agents that they could talk to him "anytime."

         Jines and McNeil met with Friar again that day at 5:34 p.m. At the start of this third interview, the following exchange occurred:

Jines: Robert let me go back over something with you to make sure we understand each other. This morning I came in here and talked to you and you didn't want to talk to me then. Then you called, had them call Chuck Benish. Chuck came up here cause you wanted to talk to him and then I come up here a little while later and I asked if I could talk to you and you said it was okay. Right?
Friar: Yeah.
Jines: And I want to talk to you some more right now, is that okay? All right. This is the rights form that I read to you this morning. Do you remember me reading that to you and you ...

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