State v. Wright , 436 S.W.3d 136 ( 2014 )

Cite as 2014 Ark. 266SUPREME COURT OF ARKANSAS
No. CR-13-908
STATE OF ARKANSAS Opinion Delivered June 5, 2014
APPELLANT
APPEAL FROM THE PULASKI
V. COUNTY CIRCUIT COURT,
[NO. 60CR-12-2036]
MARK WRIGHT HONORABLE LEON JOHNSON,
APPELLEE JUDGE
APPEAL DISMISSED.
JIM HANNAH, Chief Justice
The State brings an interlocutory appeal pursuant to Arkansas Rule of Appellate
Procedure–Criminal 3 (2013) and contends that the circuit court erred in suppressing the
statements of appellee Mark Wright. The State, as it must do under Rule 3, asserts in its
jurisdictional statement that the correct and uniform administration of justice requires our
review of this matter. We disagree and, accordingly, we dismiss the appeal.
The record reveals the following facts. On June 28, 2012, the prosecuting attorney
of the Sixth Judicial District filed an information charging Wright with one count of sexual
assault in the third degree, which occurred in January 2010, and one count of sexual assault
in the fourth degree, which occurred in October 2009 through January 2010. The basis of
the charges was that Wright, while employed as a sergeant at the Wrightsville Unit of the
Arkansas Department of Correction (“ADC”) engaged in sexual intercourse and sexual
contact with an inmate who was then in the custody of the Wrightsville Unit. After the
Cite as 2014 Ark. 266charges had been filed, Wright filed a motion to suppress, contending that statements he had
made in a recorded interview on December 21, 2011, to Special Agent Joe Pickett of the
Arkansas State Police as part of the application process to be a state trooper should be
suppressed because they had been made involuntarily and without his having been advised
of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). The State responded,
contending that when Wright gave the statements, he was not in custody and, consequently,
there was no Miranda violation. The State also contended that Pickett did not take Wright’s
statements “as part of an investigation into these alleged acts and offered no promises of
leniency and consideration.”
Pickett was the sole witness at the July 22, 2013 suppression hearing. He testified that
he administers polygraph examinations for both criminal investigations and the trooper-
application process. Pickett conducted a pre-polygraph interview with Wright on December
21, 2011, in an interview at the state police headquarters in connection with Wright’s
application to be a trooper. Pickett explained that the purpose of the pre-polygraph interview
is to go through an applicant’s preemployment questionnaire or life history, known as “the
book,” in order to make sure that it is complete and correct before the polygraph
examination is administered. At the time of the interview, Wright was under investigation
by the state police for his alleged crimes against an inmate. Although Pickett was aware of
the investigation, he testified that he did not learn that Wright was the subject of the
investigation until shortly before the pre-polygraph interview began.
Pickett video recorded the interview, and a DVD of the interview was admitted into
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Cite as 2014 Ark. 266evidence at the hearing and played for the circuit court.1 Pickett told Wright that the purpose
of the interview was to go over Wright’s answers in the book. Pickett asked Wright if he was
familiar with polygraph examinations, and Wright responded that he was familiar only with
a “voice stress analyzer” because he had been “voice stressed . . . about alleged . . .
misconduct on an inmate at ADC.” Wright then stated that an inmate claimed that he had
had sex with her, and Wright denied the allegation. Pickett told Wright that the pre-
polygraph interview was not a criminal investigation and that he needed to be truthful during
the interview so he could pass the test—a requirement to work for the state police. Pickett
then told Wright that if he had engaged in any sexual contact with an inmate, he needed to
“get that out” in the pre-polygraph interview or he would not pass the polygraph test.
Thereafter, Pickett reviewed with Wright a polygraph-waiver form, which Pickett said
included a Miranda warning, a waiver of rights, and a statement that Wright was taking the
polygraph test voluntarily. The DVD shows Wright reading and signing some papers, but
there are no signed papers in the record.
After Wright had given a quick summary of his life, Pickett began to ask him
questions about his answers in the book. Wright verified his answers in the book, including
that he had been suspended for being late to work and that he had had sexual contact with
a coworker while at work at ADC in 2009. After admitting sexual contact with a coworker,
1
The record reveals that a transcript of the interview was “entered only for purposes
of [the suppression] hearing.” The transcript states that Wright “read and signed an ASP-58
Polygraph Examination Release Form and Complete Truthfulness Statement regarding his
application. The ASP-58 contains a complete Miranda Warning.” No form was introduced
at the hearing.
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Cite as 2014 Ark. 266Wright said, “I’ll lose my job for that I guess.” Pickett responded, “No, listen man . . . this
doesn’t go to anybody. . . . This doesn’t go to your boss, and he can’t even get a copy of this.
I don’t care who it is. I don’t care if he’s the governor. He ain’t gonna see it, okay. So I want
you to relax about that kinda stuff all right.” Pickett then resumed asking Wright about his
answers in the book, including questions such as whether Wright had ever stolen from an
employer, whether his driver’s license had been suspended or revoked, whether he had ever
falsified a police report, whether he had ever had debts that had been referred to a collection
agency, whether his wages had ever been garnished, whether he had ever used illegal drugs,
and whether he had been involved in any criminal activity.
Pickett then asked Wright if there was any “other activity” that might be criminal in
nature or might affect the polygraph examination and told Wright that he had to tell the
truth about those things if he wanted to pass the polygraph. Pickett told Wright to start with
what he had been accused of, and Wright stated that a woman had alleged that he had had
sex with her while she was an inmate at Wrightsville. Wright stated that he did not have sex
with the inmate, but that he had held her, kissed her, and “grabbed her on the ass.” Pickett
asked Wright if he wanted to “put that in this book,” and Wright responded that he was
probably going to lose his job. Pickett replied, “They ain’t even gonna see this book, I’m
telling you. I’m telling you, this ain’t leaving this building.” Wright stated that Dexter
Holmes, the trooper investigating the allegation, was “in this building,” and Pickett told
Wright that the book would be locked away and that Holmes did not have keys. Wright
continued to state that he was going to lose his job and his family, and Pickett continued to
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Cite as 2014 Ark. 266tell Wright that he was only being tested on the book. When Wright referred to the inmate’s
allegation, Pickett said, “You think that’s what you’re here for?” Wright said, “Yes,” and
Pickett responded, “I advise you you’re over thinking it, man.” Pickett then told Wright to
put down in writing what he had told him because the “failure to answer all questions in this
book and those asked in part of your [polygraph] examination completely and honestly will
result in your removal from the hiring process.” When Wright expressed concern about
writing down what he had told Pickett, Pickett said, “What’s the difference between putting
it on paper and saying it out loud? . . . What’s done is done. . . We can either move forward
or we can just stop.” Wright replied, “No, I don’t want to stop, but I still want to have
somewhere to work.”
Pickett then told Wright that he was going to leave the room for ten or fifteen
minutes to give Wright time to decide whether he wanted to continue with the hiring
process. Pickett encouraged Wright to continue and stated that he should put in writing what
he had said about the incident involving the inmate. Wright stated that, while he did not
want to give up, he also did not want to go to jail. Pickett told Wright that he was not taking
him to jail, only seeking to give him a polygraph examination. Pickett again stated that he
was leaving the room and told Wright to write in the book if he wanted to, but if he did not
write in the book, the hiring process was over. Pickett then left the room for several minutes.
While Pickett was gone, Wright began writing in the book. When Pickett returned
to the interview room, he told Wright that he had reviewed the inmate’s statement and that
she had alleged that Wright had pulled her into a closet in the infirmary. Wright stated, “I’m
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Cite as 2014 Ark. 266going to lose my job when I . . . write this statement, but I never pulled her or raped her or
anything like that,” and added that, “with the ADC policy, it is considered rape, no matter
what.” Pickett stated that he did not care about ADC policy, and Wright continued writing.
After Wright had finished writing, Pickett asked him if the situation was as bad as the
inmate had alleged, and Wright maintained that it was not rape, but he admitted that he had
engaged in sexual intercourse with the inmate. Pickett then told Wright that he was going
down the hall to ask a coworker whether Wright could still be tested in light of what he had
said, and he told Wright not to leave the room. When Pickett returned to the room, he
informed Wright that he could not be tested due to his admission. Pickett then let Wright
leave the building through the lobby.
In an order entered August 5, 2013, the circuit court granted Wright’s motion to
suppress. The State brings this interlocutory appeal and contends that, to the extent that the
circuit court’s suppression ruling is premised on the concepts of interrogation and custody
stemming from Miranda, it was wrong. According to the State, there is no Miranda issue in
this case because Wright was never in custody. Alternatively, the State contends that even
if Miranda is applicable, the circuit court erred in suppressing Wright’s statements because
Wright had been advised of his rights under Miranda and had waived them. Finally, the State
contends that, to the extent that the circuit court ruled that Wright’s statements were
involuntary because they were induced by false promises or deception, the circuit court
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Cite as 2014 Ark. 266erred.2
As a threshold matter, we must determine whether the State may appeal the circuit
court’s ruling. This court has stated many times that the State’s ability to appeal is not a
matter of right but limited to those cases described under Rule 3 of the Arkansas Rules of
Appellate Procedure–Criminal. E.g., State v. Weatherspoon, 2009 Ark. 459, at 3. Pursuant to
Rule 3, an interlocutory appeal on behalf of the State may be taken only from a pretrial order
in a felony prosecution which (1) grants a motion under Arkansas Rule of Criminal
Procedure 16.2 to suppress seized evidence, (2) suppresses a defendant’s confession, or (3)
grants a motion under Arkansas Rule of Evidence 411(c) to allow evidence of the victim’s
prior sexual contact. Ark. R. App. P.–Crim. 3(a). We will not consider an interlocutory
appeal filed under Rule 3(a) unless the correct and uniform administration of the criminal law
requires review by this court. See Ark. R. App. P.–Crim. 3(d).
As a matter of practice, our court has only taken appeals that are narrow in scope and
involve the interpretation of law. E.g., Weatherspoon, 2009 Ark. 459, at 3. We do not permit
State appeals merely to demonstrate that the circuit court erred. E.g., State v. Jenkins, 2011
Ark. 2, at 4. Moreover, this court will not accept an appeal by the State when the circuit
court has acted within its discretion after making an evidentiary decision based on the
particular facts of the case or even a mixed question of law and fact, as those appeals do not
require interpretation of our criminal rules with widespread ramifications. Id. at 4–5; see also
2
The State notes in its brief that, “[a]lthough it did not explicitly say so,” the circuit
court “appear[ed]” to find that Wright’s “statements were induced by false promises or
deception, rendering them involuntary and requiring their suppression.”
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Cite as 2014 Ark. 266Weatherspoon, 2009 Ark. 459, at 3 (stating that when an appeal does not present an issue of
interpretation of our criminal rules with widespread ramifications, it is not an appeal
involving the correct and uniform administration of the law).
We are not persuaded by the State’s contention that a decision in this case would
establish an important precedent for the correct and uniform administration of the law
because the case “involves the significant issues of whether an applicant to be a law-
enforcement officer is the subject of a custodial interrogation during a pre-polygraph
interview, whether the provision of Miranda warnings at the outset of such an interview
weighs against the admissibility of any statements during its course, and whether misleading
statements by a law-enforcement officer in the course of an interrogation renders any
admissions involuntary.” Rather, we agree with Wright’s contention that the issues in this
appeal involve the application, not the interpretation, of laws regarding custodial
interrogation, Miranda rights, and voluntary confessions. Here, the circuit court reviewed
unique circumstances3 and decided mixed questions of law and fact. See Thompson v. Keohone,
516 U.S. 99, 112–13 (1995) (holding that the issue of whether a person is in custody for
purposes of Miranda is a mixed question of law and fact); See Jenkins, 2011 Ark. 2, at 5–6
(citing Thompson and holding that an issue involving a mixed question of law and fact is not
a permissive ground for an appeal by the State); State v. Guthrie, 341 Ark. 624, 629–30, 19
3
Indeed, when questioned by the circuit court at the suppression hearing about how
often he interviews state-trooper applicants who have been accused of sexual misconduct,
Pickett said, “This was a unique situation.”
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Cite as 2014 Ark. 266S.W.3d 10, 14 (2000) (stating that this court will not assume the role of fact-finder and
reevaluate the circuit court’s decision on an evidentiary matter and noting that this court will
not engage in a search for error if any determination it made would not set precedent or
serve as a guide in future prosecutions). Because the circuit court’s ruling in this case resulted
from its review of unique circumstances and required it to decide mixed questions of law and
fact, we must conclude that the correct and uniform administration of justice is not at issue.
See, e.g., State v. Hart, 329 Ark. 582, 585, 952 S.W.2d 138, 139 (1997). Accordingly, we
dismiss the State’s appeal.
Appeal dismissed.
Dustin McDaniel, Att’y Gen., by: Vada Berger, Ass’t Att’y Gen., for appellant.
Brian Bowen, for appellee.
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