Kellon v. State

Counsel

Janice W. Vaughn, Arkansas Public Defender Commission, for appellant., Leslie Rutledge, Att'y Gen., by: Michael A. Hylden, Ass't Att'y Gen., for appellee., SHAWN A. WOMACK, Associate Justice *207Lorenzo Kellon was convicted of capital murder for killing Hardip Singh, a convenience store clerk. The state waived the death penalty, and Kellon was sentenced to life in prison without the possibility of parole plus a 40-year term for aggravated robbery and a 15-year sentencing enhancement for the use of a firearm. Kellon makes two arguments for reversal on appeal. He argues that (1) the trial court erred in admitting the confession he made while in police custody and (2) the trial court incorrectly declined to adopt his suggested modifications of, and omissions from, the submitted model jury instructions. We affirm., The State has the burden of demonstrating by a preponderance of the evidence that custodial statements are given voluntarily and are knowingly and intelligently made. See, e.g. , Jones v. State , 344 Ark. 682, 687, 42 S.W.3d 536, 540 (2001). In reviewing the trial court's determination of voluntariness, we review the totality of the circumstances; we will reverse only if the trial court's decision was clearly erroneous. Id. We have adopted a two-stage inquiry for instances in which defendants allege that false promises by police officers induced their custodial statements. First, we look to the nature of the officer's statement. If the officer made an unambiguous, false promise of leniency, then the statement elicited from the defendant is automatically inadmissible; if the officer made no promises of leniency, the statement is admissible. See Pyles v. State , 329 Ark. 73, 77-78, 947 S.W.2d 754, 756 (1997). If the officer's statements were of an ambiguous nature, however, we proceed to the second step of the analysis to examine the defendant's vulnerability along a number of dimensions: age, education, intelligence, length of interrogation, experience with the justice system, and the delay between the defendant receiving Miranda warnings and the statement. See Clark v. State , 374 Ark. 292, 300, 287 S.W.3d 567, 573 (2008)., The comments from the detectives that Kellon highlights in this case fall into two broad categories. First, before Kellon's confession to the murder, the officers made several comments about the desirability of telling the truth. They said that Kellon could "get help" for any problems he was going through, that the officer could "go and tell the judge, this man came in here. He was truthful. He was trying to be a provider for his family. He was trying to help someone that, you know, he considered as a [sic ] family. I can get on the stand and say that versus saying, he came up in here and he flat out lied to me." They indicated that they "give opportunity" and that coming clean might allow him to "start over again" and become a better person. Kellon confessed between this and the second group of comments in which the detectives claimed they did not *208want Kellon to lead them to the murder weapon for "any other reason" than to prevent the gun from remaining on the streets and causing an unsafe situation., Kellon argues that these statements were unambiguous promises of leniency, but this contention is simply not supported by our case law. For promises to be considered unambiguous offers of leniency, we have demanded a degree of specificity lacking here. In Teas v. State , 266 Ark. 572, 574, 587 S.W.2d 28, 29 (1979), we reversed the trial court's decision not to suppress a confession after reviewing evidence that the detaining officers offered to reduce the defendant's bond and to make recommendations to the prosecutor up to and including dismissal of the case. These were specific promises in exchange for the defendant's confession and cooperation in other investigations. In Freeman v. State , 258 Ark. 617, 620-21, 527 S.W.2d 909, 911 (1975), we similarly reversed when a deputy prosecuting attorney claimed he had no authority to make promises but nevertheless speculated with undue specificity that, if the detained individual had committed a crime, it was "probably one that would not result in more than 21 years' incarceration." Id. In contrast, the statements in this case are much closer to those in Goodwin v. State , 373 Ark. 53, 62, 281 S.W.3d 258, 266 (2008). There, the officers told the defendant that it was "best for [the defendant] to be truthful" and that they would convey news of the defendant's honesty to the prosecutor. We held that such general promises were, at most, ambiguous. Id. So too here. The detectives made no specific representations to Kellon. In context, the comments read more as general exhortations to be truthful for the sake of Kellon's own conscience than as promises to exercise official authority., As in Goodwin , because the statements were plausibly ambiguous, we proceed to the second step of determining whether Kellon was particularly vulnerable to "having his will overborne." Id. Here as well, though, we find no cause for concern sufficient to reverse the judgment of the trial court. Going through the factors listed above, Kellon was 23-well into adulthood-at the time of the confession. He was Mirandized shortly before questioning began, and his confession came less than halfway in to his approximately one-hour interrogation. The trial court commented on Kellon's poor articulation, but swiftly added that noticing an unfamiliar speech pattern alone was an insufficient reason to reach a conclusion about Kellon's intellect. While Kellon had no prior experience with the criminal-justice system, the test is holistic; inexperience with interrogation alone does not mandate a conclusion that the defendant is particularly vulnerable. See, e.g. , Conner v. State , 334 Ark. 457, 982 S.W.2d 655 (1998). Reviewing the totality of the circumstances, we cannot say that the trial court clearly erred in refusing to suppress Kellon's confession., Kellon argues that, given that the elements of capital felony murder and first-degree felony murder are identical, requiring that the charges be considered seriatim is incompatible with the law. He posits that the jury could never honestly convict on the lesser included first-degree charge because the jurors would first have to acquit the defendant of the greater capital charge on the exact same elements. Kellon cites Sanders v. State , 305 Ark. 112, 805 S.W.2d 953 (1991), for the proposition that, in cases where the greater and lesser offenses are identical, the jury must be able to reject the greater offense merely by convicting of the lesser rather than requiring acquittal on the greater charge first. This reading is not supported by the holding in Sanders , however. Sanders turns entirely on a glaring error in the crime instructed to the jury. Sanders was charged with capital felony murder, but the jury was instructed that the lesser included offense was simple first-degree murder (rather than first-degree felony murder). Sanders was therefore convicted of a crime with which he was not properly charged. Sanders does not say anything about the order of deliberations. To the extent it weighs on this case, it is only to strengthen the chorus of our precedent explicitly approving jury deliberations over multiple offenses with overlapping elements but divergent levels of severity. See, e.g. , Hill v. State , 344 Ark. 216, 40 S.W.3d 751 (2001) (overturned on other grounds). Kellon's argument is an attempt to relitigate a thoroughly settled legal tension by other means. As such, we hold that the trial court did not abuse its discretion in declining Kellon's proposed modifications of, and omissions from, the submitted model jury instructions., As required by Ark. Sup. Ct. R. 4-3(i) (2017), the record has been examined for reversible error. None has been found.