Montgomery v. State, CR-21-595

2022 Ark. App. 329

653 S.W.3d 21

Flando MONTGOMERY, Appellant

v.STATE of Arkansas, Appellee

No. CR-21-595

Court of Appeals of Arkansas, DIVISION II.

Opinion Delivered September 14, 2022

Rehearing Denied October 26, 2022

Willard Proctor, Jr., P.A., by: Willard Proctor, Jr., Little Rock, for appellant.

Leslie Rutledge, Att'y Gen., by: Kent G. Holt, Ass't Att'y Gen., for appellee.

MIKE MURPHY, Judge

Appellant Flando Montgomery was convicted by a Craighead County jury of one count of first-degree murder; two counts of first-degree attempted murder; one count of aggravated robbery; one count of first-degree battery; and six counts of aggravated assault. Each of these charges carried a firearm enhancement, and all but the aggravated-robbery charge carried an enhancement for being committed in the presence of a child. On appeal, Flando challenges the admission of a custodial statement; the admission of body-camera footage; and the length of his sentence. We affirm.

On January 2, 2019, Jonesboro police responded to a residence regarding a shooting. Four victims in the home sustained multiple gunshot wounds, including sixteen-year-old Malcom Jemison, who died from his injuries. Three others were on the scene but unharmed, including a one-year-old infant. Testimony at trial established that on January 2 around 5:00 p.m., Antonio Funches and Taurus Bedford went to the residence to buy marijuana. The transaction took place, and they left about fifteen minutes later. Taurus then returned some time later. Malcom was in the living room playing a video game and keeping an eye on the baby, who was sleeping on the sofa. Quenterius Finch (one of the victims) opened the door for Taurus, and they spoke for a moment. Taurus apparently turned as though to leave but opened the door for Flando. Flando came in holding two guns. Taurus also pulled out a gun. Flando moved to the living room, and Taurus began to rob Quenterius. Three shots were fired in the living room, and then Taurus shot Quenterius. Taurus and Flando continued shooting into the kitchen, unloading their clips.

When police arrived, they encountered several individuals who had been shot and began administering aid. Body-camera video from the responding officers was admitted into evidence and played for the jury. Malcom was pronounced dead at the hospital. Three others were hospitalized with gunshot wounds. After investigation, Flando was considered a suspect.

Flando turned himself in at the Jonesboro police station on January 5. He read and signed a form indicating he understood his Miranda rights and agreed to a recorded interview. Detectives Brooks and Oldham interviewed Flando for about two and a half hours. Flando confessed his participation in the shootings. Specifically, he stated, "When I turned around, the gun just went off." Flando was interviewed again ten days later. During that interview, he again confirmed that he took some part in the shooting. ("[M]y cousin ... how he said it, it was like somebody was pointing a gun at me, so, like, by me being so nervous, when I turned around, I had like fired the gun the first time and just kept shooting.")

Flando was convicted of one count each of first-degree murder, aggravated robbery, and first-degree battery, two counts of attempted first-degree murder, and six counts of aggravated assault. The jury also found that each offense was committed with a firearm and that the first-degree murder, two counts of attempted first-degree murder, and all but the aggravated robbery and battery were committed in the presence of a child and recommended sentences for those enhancements as well. The jury recommended that the sentences for the underlying felonies run concurrently and the enhancements to follow consecutively with the stipulation that all of the child and firearm enhancements would run together, for an aggregate sentence of fifty-five years.

On August 4, 2021, the circuit court entered a sentencing order that listed the time to be served as 480 months but was silent as to how the sentences were to be served. On August 9, 2021, an amended sentencing order was entered listing the total time to be served as 660 months, indicating that the two enhancement provisions found by the jury were to be served consecutively to the sentences for the respective underlying felonies.

On appeal, Flando challenges the admissibility of his confession to Detectives Brooks and Oldham; the circuit court's modification of his sentence; and the admission of body-camera video from the officers responding to the scene of the shooting.

Flando's first point argues that the confession he made to Detectives Brooks and Oldham was based on an unambiguous false promise of leniency and was not the product of his free will. The statements at issue were made by Sergeant Oldham, the first one being as follows:

Okay. Okay. Here's one of the things, once again, most of the questions we're asking you, man, we know the answers to -- Flando, no, dude, listen to me. Don't – the truth is the best way you're going to go with this. I promise you, man. I promise ya. I'll do everything I can to help you out, but you've got to be straight with us and right now you're giving us not whole truths.

And later in the interview, Sergeant Oldham said:

I understand that, but you – y'all go there, and you're on a mission to rob somebody. All right. I'm telling you right now when that gun kit comes back, you know what it's going to show me ... [a]nd it's going to show that you killed this young man right here.

That's what it's going to show. When you – you can look it however you want to, whatever light you want to, and I'll tell you right now me and Detective Brooks right now go to the prosecutor's office with you, I'll stand beside you and tell you he didn't want to do that. He didn't mean to do that. He wishes it would have never happened, but it happened. All right. But right now what you're telling us right now is I don't give a shit that I killed this kid. That's what you're telling us right now.

Flando contends these statements are unambiguous false promises of leniency and therefore rendered his statement involuntary and inadmissible. He argues, alternatively, that the statements were ambiguous and that the court erred in letting his confession into evidence after conducting the appropriate analysis.

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 circuit court's determination of voluntariness, we review the totality of the circumstances; we will reverse only if the circuit 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 statements in this case are similar to those made in Goodwin v. State , 373 Ark. 53, 62, 281 S.W.3d 258, 266 (2008). In Goodwin , 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. The supreme court held that such general promises were, at most, ambiguous. Likewise, in Kellon v. State , 2018 Ark. 46, at 2–3, 538 S.W.3d 206, 207, statements from police 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 ... I can get on the stand and say that versus saying, he came up in here and he flat out lied," were similarly held to be ambiguous.

Because the statements by Officer Oldham were plausibly ambiguous, we then take the second step of determining whether Flando was particularly vulnerable to having his will overborne. There are four factors to be considered in determining a defendant's vulnerability: "1) the age, education, and intelligence of the accused; 2) how long it took to obtain the statement; 3) the defendant's experience, if any, with the criminal-justice system; and 4) the delay between the Miranda warnings and the confession." Brown v. State , 354 Ark. 30, 34, 117 S.W.3d 598, 600 (2003).

The object of the rule is not to exclude a confession of truth, however, but to avoid the possibility of a confession of guilt from one who is, in fact, innocent. Williams v. State , 363 Ark. 395, 405, 214 S.W.3d 829, 834 (2005). A person seeking to have a statement excluded on the basis that a false promise was made must show that the confession induced by the false promise was untrue. Id.

At the suppression hearing, the...