APPEAL
FROM THE PULASKI COUNTY CIRCUIT COURT [NO. 60CR-15-2690]
HONORABLE HERBERT WRIGHT, JUDGE
Omar
F. Greene, for appellant.
Leslie
Rutledge, Att'y Gen., by: Brooke Jackson Gasaway,
Ass't Att'y Gen., for appellee.
JOSEPHINE LINKER HART, JUSTICE
This
case is once more before us after we have twice remanded it
to the circuit court to supplement the record with materials
that were omitted from the official transcript. Zavier Pree
appeals from his conviction by a Pulaski County Circuit Court
jury of capital murder, aggravated robbery, and a firearm
enhancement, for which he received, respectively, a sentence
of life without parole, a concurrent term of 40 years, and a
consecutive term of ten years in the Arkansas Department of
Correction. On appeal, he argues that the circuit court erred
when it denied his motion to suppress (a) his statements to
police recorded in a police-interrogation room and (b) an
alleged nonrecorded custodial statement made while police
escorted him to a police car. Our jurisdiction is pursuant to
Arkansas Supreme Court Rule 1-2(a)(2).
Pree
posted a Facebook status asking if anyone wanted to make
quick money. The victim, Aaron Crawford, "liked"
Pree's post, and the two started communicating through
private messaging. Pree promised Crawford that he would pay
him $300 if he gave him a ride from Jacksonville to Little
Rock. On July 9, 2015, Crawford picked up Pree and drove him
to the U.S. Bank ATM in North Little Rock.
While
parked at the ATM, Pree shot Mr. Crawford five times.
Crawford crawled out of the car and ran across the street
where witnesses called 911. North Little Rock police arrived
a few minutes later. Crawford was covered in blood. Although
he was in and out of consciousness, Crawford told police that
he had been shot and his car was stolen.
While
processing the crime scene, officers found Crawford's
cell phone. When they opened the cell phone, a Google Maps
page popped up. The map showed directions from Pree's
apartment in Jacksonville to the ATM at U.S. Bank.
Crawford's phone also revealed Facebook messages between
Pree and him. On the morning of the murder, Pree messaged Mr.
Crawford and told Crawford to tell him when he arrived in
Jacksonville.
Officers
went to Pree's address and saw Crawford's stolen car
nearby. Subsequently, Pree and two females got into the
stolen vehicle. Pree was immediately arrested.
An
in-custody interrogation was conducted by Detective Dane
Pedersen immediately after Pree's arrest. Pree was read
his Miranda warnings, and each right was explained
to him. Pree acknowledged in writing that he was read each
warning and that he understood it. Pree told the detective
that he was nineteen years old and a graduate of Little Rock
Central High School. Following the Miranda warnings,
Pree confessed to shooting Crawford. Pree also told Detective
Pedersen where to find the gun, and Detective Pedersen
retrieved it from Pree's apartment. At some point during
the interrogation, Crawford died.
While
Detective Pedersen was retrieving the weapon, two Little Rock
detectives asked to speak to Pree about two unrelated crimes.
Pree was again Mirandized. Pree told the detectives that he
did not want to speak to them. The Little Rock detectives
left.
When
Detective Pedersen returned with the gun, he informed Pree
that he was under arrest for capital murder. Detective Gary
Jones transported Pree to the Pulaski County Detention
Center. During the transporting process, Pree initiated
conversation with Detective Jones by asking why he was being
charged with capital murder. According to Detective Jones, he
explained to Pree that "through the course of the
investigation and throughout the day it led the investigators
to believe that he was responsible for that murder."
Detective Jones further explained that the police knew how
and where it had happened, but they still wanted to know why
it had happened and why he had chosen Crawford as his victim.
Pree told him that when he pulled up to the ATM, he got
"nervous" because of Crawford's texts about a
shooting in Dixie. Pree claimed that he shot Crawford one
time, then crawled over the center console into the
driver's seat of Crawford's car when Crawford fled.
He then drove away in Crawford's car.
Prior
to trial, Pree moved to suppress his videotaped confession.
In his written motion, Pree alleged that his waiver of his
right to remain silent was not "knowingly, voluntarily,
and intelligently made." He further asserted that the
State could not prove that the statement he gave to Detective
Pedersen was voluntary because the police employed coercion,
intimidation, and deception to obtain his confession. These
police tactics, in addition to his young age (nineteen), lack
of experience with the criminal-justice system, and his being
under the influence of drugs (marijuana, Xanax, and
hydrocodone) at the time of the interview establishes that
waiver was infirm. Regarding "deception," Pree
specifically cited Detective Pedersen's claim that police
had video of the murder; and his telling Pree that he was
being interviewed about a "battery," which due to
his inexperience, misled Pree into thinking it was equivalent
to his fight at school when he was a juvenile. Pree also
asserted that Detective Pedersen deceived him by downplaying
the Miranda warnings by telling Pree that his
signature meant he "understood" the rights, not
that he was waiving them and by substituting the phrase
"can be used" in place of "can and will be
used" with regard to the potential jeopardy that he
faced by giving incriminating information.
Additionally,
Pree claimed the video demonstrated that he was overwhelmed
by the situation--that he had the impression he could go
home; he appeared confused or not fully able to comprehend
some of the officers' statements and questions; and he
"progressed from nervousness and some confusion to a
state of panic during the interrogation." In the written
motion to suppress, Pree's statement to Detective Jones
was not mentioned. In a supplemental motion to suppress, Pree
further challenged the way Detective Pedersen executed
Miranda warnings, noting that Detective Pedersen
told him they were just going to "talk" and that he
was "not going to be adversarial." Pree asserted
that Detective Pedersen effectively failed to
"warn" him as required by Miranda v.
Arizona, 384 U.S. 436, 439 (1966), which charged police
with making a suspect "more acutely aware that he is
faced with ...