Boyd v. State

2016 Ark. App. 407

500 S.W.3d 772

Michael Boyd, Appellant

v.State of Arkansas, Appellee

No. CR-15-259

Court of Appeals of Arkansas, DIVISION I.

Opinion Delivered September 14, 2016

Alvin Schay, Little Rock, for appellant.

Leslie Rutledge, Att'y Gen., Little Rock, by: Kristen C. Green, Ass't Att'y Gen., for appellee.

CLIFF HOOFMAN, Judge

Appellant Michael Boyd was convicted by a Pulaski County Circuit Court jury of aggravated robbery and theft of property and was sentenced to thirty and ten years of imprisonment, respectively, to be served consecutively.¹ On appeal, he contends that the trial court committed reversible error by denying (1) his motion for a directed verdict, (2) his motion to suppress statements made by him in a police interview, and (3) his motion to suppress a photo identification of him made by a bank teller. We affirm.²

The crimes were alleged to have occurred at approximately 4:15 p.m. on September 13, 2013. A man had entered a Bank of the Ozarks branch in North Little Rock with what appeared to be a handgun in his waistband, demanded money, took $4,000 of the bank's money, and left in a car that had been described by bank tellers. Appellant was stopped in his car about an hour after the armed robbery. Appellant had a similar appearance to the man described by bank tellers and seen in bank surveillance video. Appellant submitted to an interview at the police station and waived his Miranda rights. In the interview, appellant made incriminating statements, admitting to having visited three banks that day, to having been at the bank that was robbed, to having what he described as a fake gun, and to taking money from a bank teller. Appellant's attorney filed a pretrial motion to suppress asserting in part that his statement should be suppressed because the officer illegally used promises of leniency to acquire his custodial statements, rendering them involuntary.

At the hearing on this motion to suppress, Detective Michael Gibbons testified that he interviewed appellant. He explained that he read appellant his Miranda rights, that appellant told him that he understood his rights, and that he wished to waive his rights in order to give a statement. The interview lasted more than one hour. Although appellant repeatedly asked whether he could receive a bond on these charges, Detective Gibbons testified that he never promised appellant a bond, noting that appellant was not yet charged with anything.³ The detective said that he told appellant that if a gun was not used or if it was not real, then a crime was considered robbery, where a bond was possible, but that a bond was not possible for aggravated robbery. The detective made clear that appellant was “all about getting a bond, no matter what the charge was,” but that he told appellant that he would not lie and tell him he could go home. He admitted that he falsely told appellant that seven people had identified him as the robber and that traffic cameras had showed his vehicle at the scene. Detective Gibbons explained that he did not threaten appellant in order to obtain his confession. Furthermore, he testified that appellant had numerous prior offenses and that appellant had extensive experience with the criminal justice system, including having his Miranda rights read to him and having been to prison numerous times for felonies. Appellant confessed during the interview that he went into the three banks that day (two Metropolitan Banks and the Bank of the Ozarks), that he had a mask on, that he had a fake gun with him although he denied pulling it out, and that a teller gave him the money.

Defense counsel argued that this confession was involuntary because it was the product of the detective's false promise of leniency. The State argued that there was no promise, much less a clear promise, of acquiring appellant a bond and that the detective repeated that he could not make such a promise. The State asserted that under the totality of circumstances with this criminally experienced defendant, suppression was not warranted. At the conclusion of the hearing, the trial court denied the motion to suppress, and a written order was subsequently filed.

Appellant also filed a pretrial motion to suppress the evidence of a photo identification made by witness Kathryn Pannell, alleging that the lineup was unduly suggestive. There were two written orders filed prior to trial denying this motion, but the trial court agreed to consider the motion again during the course of the trial.

At trial, the State put on proof that a man matching appellant's description had shown up at two Metropolitan Bank locations that day before entering a nearby Bank of the Ozarks location, where the robbery took place. North Little Rock police officer Kasey Knight was involved in responding to the report from a Metropolitan Bank of a “suspicious male” who came in wearing a dust mask, sunglasses, a hat, and who was acting “kind of odd.” Knight viewed bank surveillance video, which led him to broadcast to other officers to be on the lookout for this approximately thirty-year-old black male.

A bank manager at that Metropolitan Bank branch, Sholanda Jenkins, testified to her description of the man and that she asked him to take off the dust mask, but he refused, saying that he had the flu. She verified a still photo of the man in the bank that day as shown on bank surveillance.

A teller from that Metropolitan Bank branch, Kathryn Pannell, testified that, while she was on a break, she observed appellant without his mask on immediately before he entered the bank. She also observed his vehicle and license plate that she was able to report to police—a black Toyota with license plate 198 SRG. She confirmed that appellant was becoming agitated when he could not get the tellers to provide him a cash advance on a card that did not have his name on it. They locked the bank door after he left; appellant tried again to enter the bank but left instead. Pannell called the police. Pannell identified appellant in court stating that she was “100% sure” that appellant was the man in the still photos that showed a full-length color picture of appellant in her bank lobby. She said he had the mask in his hand before he put it on, and he told her that he had the flu as he walked into the bank. She said that when he was inside the bank, the mask kept coming down and he would have to put it back up.

Pannell had also identified appellant out of a six-person photo spread when presented with it about four months after the robbery. Pannell said that the detective never suggested who to pick out, and she did not have any doubts about her recognizing appellant in the photos. She testified that her job was in customer service, and she remembered people. Appellant renewed his motion to suppress the photo-spread identification made by Pannell. Defense counsel complained that Pannell did not identify appellant until months after the robbery; it was based on her brief observation of appellant; and the lineup was unconstitutionally suggestive. The State responded that this was a very good lineup with similar looking men with nothing suggestive about it. The trial court rejected the motion by sustaining its earlier ruling.

The State called employees of the robbed Bank of the Ozarks, located on Camp Robinson Road, to testify about what they saw and heard that day. Sharon Erwin, one of the tellers at Bank of the Ozarks, testified that the assailant had entered the bank wearing a black shirt, black hat, dark sunglasses, and a white surgical mask. She said she knew something was not right. She overheard him demand $10,000 from another teller, Pam Buzbee, who was in the window next to her. After Buzbee refused and told the man to take off his mask, the man told Buzbee that he had the flu, called Buzbee “a bitch,” lifted up his shirt, showed the gun, and finally pulled the gun out and waved it around. Erwin testified that Buzbee was hesitant to give him the money, so she pulled out two straps of $100 bills that contained a total of $4,000 and tossed them in the window. Erwin said that she saw the man's face as he pulled his mask back and put it back on; the man then took the money and left. Erwin explained the bank surveillance video as part of her testimony. She did not positively identify appellant in court as the man in the bank that day, but she verified that the surveillance was accurate.

Another bank employee, Greg Smith, was present working the drive-through window; he heard the interaction and heard someone say, “He has a gun,” but he did not personally observe the robbery. Smith saw the robber get into his car to leave, and he was able to describe the license plate. Another bank employee, Chris Abbot, testified about observing the robbery, hearing the man call Buzbee a “stupid bitch,” and seeing Erwin throw the money toward the man before he left.

Detective Cody Brown detained appellant after he was stopped approximately an hour after the robbery driving a vehicle matching the description given—a black 2012 Toyota Corolla, license plate 198 SRG. At the time he was pulled over, appellant said that he had not been on Camp Robinson Road that day although Brown had not mentioned that road.

Detective Gibbons testified at trial that he conducted appellant's interview and explained a summary of events similarly to his description at the suppression hearing. Gibbons said that appellant did not immediately confess to the robbery but spent most of the conversation wondering whether he could get a bond and go home. Gibbons said he told appellant “over and over” that he could not promise anything—including a bond—if he made a statement and explained that this was being investigated as an aggravated robbery. A portion of the audio-recorded interview was played, and transcripts of that portion were provided to the jury.

Gibbons said that appellant had gone that day to the Metropolitan Bank on McCain Boulevard at 11:30 a.m. and at 3:29 p.m.; to...