Montgomery v. State

241 S.W.3d 753

367 Ark. 485

Jairo MONTGOMERY, Appellant, v. STATE of Arkansas, Appellee.

No. CR 06-62.

Supreme Court of Arkansas.

October 26, 2006.

W. Ray Nickle, Jonesboro, AR, for appellant.

Mike Beebe, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., Little Rock, AR, for appellee.

JIM HANNAH, Chief Justice.

Appellant Jairo Montgomery was convicted of possession of methamphetamine with intent to deliver, and he was sentenced to a term of 420 months in the Arkansas Department of Correction. For reversal, Montgomery argues that the circuit court erred: (1) in denying his motion for change of venue; (2) in denying his motion to suppress; (3) in allowing the State to introduce tape-recorded conversations without showing one party's consent to the recording, as required by the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. § 2510 et seq.; and (4) in denying his request to submit a jury instruction on entrapment. The court of appeals certified this case to this court pursuant to Ark. Sup.Ct. R. 1-2(b)(1) and (5), as a case involving an issue of first impression, and one needing clarification or development of the law. We find no error and affirm.

While the sufficiency of, the evidence has not been challenged, we will briefly summarize the facts. On November 8, 2003, officers from the Paragould Police Department executed a search warrant for Billy Sheridan's residence, located at 731 West Locust, in Paragould. During the search, a cell phone rang several times. Officer Rhonda Thomas answered the phone, and the male caller asked to speak with Sheridan. Thomas told the caller that Sheridan could not come to the phone, and she asked the caller if he wanted her to give Sheridan a message. Thomas testified that the caller, who was subsequently identified as Montgomery, said, "[T]ell him this is Jau and tell him it's good, it's all good." Thomas then told Officer Arvin Volner about the conversation. Volner testified that Sheridan agreed to cooperate with the police, so Volner instructed Sheridan to call Montgomery in an attempt to set up a controlled delivery of methamphetamine. Sheridan arranged for the delivery, and Montgomery and others arrived with the substance at the designated time. Montgomery was arrested and taken to the Paragould Police. Department, where Volner interviewed him the next day. In a recorded statement; Montgomery admitted to Volner that he possessed methamphetamine and intended to deliver it to Sheridan.

Denial of Motion for Change of Venue

Montgomery first argues that the circuit court erred in denying his motion for a change of venue from Greene County. This court has held that a criminal case may be removed to a circuit court of another county upon a showing that the minds of the inhabitants of the" county in which the cause is pending are so prejudiced against the defendant that a fair and impartial trial cannot be had. Collins v. State, 338 Ark. 1, 991 S.W.2d 541 (1999). The burden is on the defendant to show the general mindset of the populace and the concomitant impossibility of receiving a fair trial. Id. In making a determination of the accused's ability or inability to receive a fair trial, the trial court has an opportunity to observe witnesses and to make a determination as to whether or not a particular mindset or prejudice pervades the entire county. Id. We will not disturb the finding of the trial court in an absence of an abuse of discretion. Id. There can be no error in the denial of a change of venue if the examination of the jury selection shows that an impartial jury was selected and that each juror stated he or she could give the defendant a fair trial and follow the instructions of the court. Singleton v. State, 337 Ark. 503, 989 S.W.2d 533 (1999). In addition, a defendant cannot show that he was prejudiced by the denial of a motion for change of venue if he failed to exhaust all of his peremptory strikes. Id.

Prior to trial, Montgomery filed a motion for change of venue, based on "his own personal knowledge that a black person will not be treated fairly in Paragould." He also submitted identical affidavits from a number of persons who stated that they did not believe that a black person would be treated fairly in Paragould.¹

At a hearing on Montgomery's motion, Trichia Dunn, Montgomery's fiancee, testified that she lived in Trumann, in Poinsett County, and had never lived in Greene County. Dunn is white, and Montgomery is African-American. Dunn stated that when Montgomery was arrested, Officer Volner asked her why she "would want to be with a nigger" who got her into trouble. Dunn stated that Volner made it clear to her that he did not approve of her relationship with Montgomery. Dunn also stated that a little boy she saw in the courthouse lobby said "nigger, nigger, nigger," when he saw Montgomery. The boy's grandmother apologized to Montgomery and Dunn. On cross-examination, Dunn testified that she believed that Volner's comment was representative of other citizens of Greene County, even though she had never lived there. Volner had since been dismissed by the police department and had moved to Crossett.

Ricky Hishaw, a white male, testified that he lived in Greene County from 2000 to 2005. He stated that Paragould was known as a place where African-Americans are "not welcome a lot," and that he did not think Montgomery could get a fair trial in Paragould. When asked if he knew of specific instances where African-Americans had been mistreated in Greene County, Hishaw stated that he did not. He testified that some persons "backed off" from him when they learned that he had black friends. He also stated that he had seen "rebel" flags on vehicles in Greene County; however, he admitted on cross-examination that he had seen such flags on vehicles in other counties as well. Hishaw also recounted that he had heard rumors of a sign in town warning African-Americans to leave before sundown, but he had never seen the sign, nor did he have personal knowledge of the existence of the sign.

After hearing testimony, the circuit court concluded that Montgomery had failed to prove that the mindset of the general population of Greene County was such that an African-American could not receive a fair trial. Montgomery contends that the circuit court should have granted his motion for change of venue because he presented proof that there was countywide prejudice against black people in Greene County, and because the State called no witnesses to rebut the testimony of Dunn and Hishaw. As previously noted, the burden is on the defendant to show that a fair trial cannot likely be had in the county. See, e.g., Richardson v. State, 292 Ark. 140, 728 S.W.2d 189 (1987). The State is not required to rebut the defendant's testimony. The issue is whether a defendant presents sufficient proof.

The State contends that the circuit court was within its discretion to find that Montgomery had failed to show that it would be impossible to select an impartial jury in Greene County. The State argues that neither of Montgomery's witnesses demonstrated a general knowledge about the state of mind of inhabitants of Greene County or of prejudice existing throughout the county to such an extent that a fair trial could not be had. In support of this argument, the State points out that Dunn had never lived in Greene County, and that she related stories concerning only two persons: a police officer who no longer lived in Greene County and a young boy who was in the courthouse. The State contends that, as unfortunate as the two instances Dunn cited were, they did not prove that racial prejudice existed in Greene County to such an extent that an impartial jury could not be seated. As to Hishaw's testimony, the State contends that, while Hishaw testified that it was known that blacks were not welcome in Greene County, he could cite no specific instance of mistreatment against African-Americans based on their race. The State's argument is well taken. We hold that the circuit court did not abuse its discretion in denying Montgomery's motion for change of venue.

Further, the State points out that jury selection was not included in the record on appeal, so it is not known how the jurors responded to the questions they were asked, if Montgomery exhausted his peremptory strikes, or if he objected to the jury that was selected to hear the case.² The burden of providing a record sufficient to demonstrate that reversible error has occurred is upon the appellant. See McGhee v. State, 330 Ark. 38, 954 S.W.2d 206 (1997). Here, in the absence of such a record, Montgomery has failed to show that he did not receive a fair trial.

Denial of Motion to Suppress

Montgomery argues that the circuit court erred in denying his motion to suppress a statement he gave to Officer Volner because Volner obtained the statement by making false promises to him. In Williams v. State, 363 Ark. 395, 214 S.W.3d 829 (2005), we stated:

We note at the outset that a statement made while in custody is presumptively involuntary, and the burden is on the State to prove by a preponderance of the evidence that a custodial statement was given voluntarily and was knowingly and intelligently made. Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003). In order to determine whether a waiver of Miranda rights is voluntary, we look to see if the confession was the product of free and deliberate choice rather than intimidation, coercion, or deception. Id. When we review a trial court's ruling on the voluntariness of a confession, we make an independent determination based on the totality of the circumstances. Id.

A statement induced by a false promise of reward or leniency is not a voluntary statement. Roberts v. State, 352 Ark. 489, 102 S.W.3d 482 (2003). When a police officer makes a false promise that misleads a prisoner, and the prisoner gives a confession because of that false promise, then the confession has not been made voluntarily,...