GUILTY AR - Beverly Carter, 49, Little Rock, 25 Sep 2014 - #11

[arkansasmimi]

goes over chronological events... The Defendant introduced the arrest report created by Officer Cedric Roy of the LRPD.
Defendant's Ex. 1. In that report, Officer Roy indicates that the Defendant requested an attorney
when he was transferred to the custody of the Sheriff. Officer Roy did not convey this
information to the Sheriff s investigators. The State did not call Officer Roy as a witness, but
they also did not dispute the authenticity of the report or the facts contained therein. The Court
finds the information contained in the report credible and finds that this request by the Defendant
at the time of transfer from LRPD to PCSO constituted an assertion of his right to have an
attorney present during interrogation.l0 Once an accused has expressed his desire to deal with the

police only through counsel, he is not subject to further interrogation by the authorities until
counsel has been made available to him, unless he himself initiates further communication,
exchanges, or conversations with the police. Edwards v. Arizona 451 U.S. 477,484-485 (1981).
See also Wedgeworth v. State,374 Ark.373 (2008) (accused may waive his rights by initiating
further communication with the police...any resulting statements may be admissible')

The Court finds that the introduction of any statements the Defendant made after he
invoked his right to counsel in the presence of Officer Roy would be a violation of his right to an
attorney under Edwards. The Court finds further that the Defendant's yelling for the investigators
to return was a voluntary re-initiation of communication with the investigators

**IIRC AL didn't say much to the SA Burroughs...

**note, AL alleges that it was after the FBI guy and Sgt Blain left when he was beat up by the Reserve Deputy afterwards is when he that he asked for the FBI guy to come back according to AL.

The defense's Motion to Suppress Statements During Interrogation is therefore granted
with respect to any statements made between his invocation of his right to an attorney in the
presence of Officer Roy and his re-initiation of contact with the investigators by "yelling" and
requesting to speak to the FBI agent again. The Motion is denied with respect to any statements
he made during interrogation after that re-initiation but before he said the word "lawyer" and the
investigators ceased communications with him

*** anything after FBI went back in was not recorded, nor was anything in the patrol car or afterwards except by the media **

 

[arkansasmimi]

IF AL gets cocky and wants to take the stand (his right) but jmho he shouldn't (going by what we know). IF AL takes the stand they can use anything that the judge has suppressed (not able to use at trial) they can use. Right now most everything AL said has been deemed unable to use as far as interrogation wise. JMHO

Notwithstanding the Court's Order with respect to this Motion, the Defendant will not be
permited to use this holding to perjure himself should he choose to testify on his own behalf..
The parties are put on notice of the holding of Harris v. New York,401 U.S. 222 (1971). That
case stands for the proposition that should a Defendant testiff on his own behalf at trial, any
statements or evidence that has been suppressed as violative of Miranda may nonetheless be used to impeach him. The State will be permitted to introduce anything that has here been suppressed
for impeachment purposes should the Defendant take the witness stand.ll

AL is the one who played that tape had he not, it wouldn't have been able to have been used jmho

The State's argument here is
well taken. Patane and its progeny show that where a suspect has been interrogated in violation
of Miranda, only the testimonial fruit of that interrogation should be suppressed, and not physical
evidence obtained as the fruit of a voluntary statement. Accordingly, as the recording of the
victim is not testimonial, it does not run afoul of the constitutional rights sought to be protected
by Miranda. The recording of the victim is admissible.

 

[arkansasmimi]

***This is the same Reserve Deputy that AL filed a Fed Civil Suit against (one of the 2 Defendants that the case was allowed to move forward on Excess Force allegations only in their individual capacities. AL was given an Attorney in that Fed Civil case.

As a final matter, the State has requested that another hearing be held prior to trial to
rebut the allegations made by Defendant during his testimony at omnibus that he was assaulted
by a reserve deputy in the bathroom prior to his interrogation by the Pulaski County Sheriff s
investigators. The State cites cases such as Smith v. State,254 Ark.538 (1973) and various
persuasive authority from sister jurisdictions for the proposition that once an allegation has been
made that a confession was the result of coercion, the charge must be rebutted. The Defendant stated during cross-examination by the State that prior to his "yelling" for
FBI Agent Burroughs that he had been taken to the bathroom by Reserve Deputy Gary Siebel
and that the reserve deputy beat him up. The Defendant asserted that the only reason he yelled to
speak to Burroughs again was that he had been threatened and attacked. Defense attomeys did
not question the Defendant about this statement. This encounter has not been mentioned in any
of the Defendant's pleadings, in any of his statements to the media, or in any testimony elicited
from any other witness. The Court is aware of the authority cited by the State, but it does not find
the Defendant's testimony credible regarding this encounter. The Court will not grant the State a
hearing on this matter but will allow the State to revisit the assertion at the time of trial.

 

[arkansasmimi]

Looks like the Def Attorney was correct in their interpretation of this (I been waiting for this to see which was right. My non legal education read it to mean this too so that why I curious). I do find it odd that the State read it that way. And bet other attorneys prob take note of this. JMHO

To begin, the Court is not convinced by the State's interpretation of Rule 504(d). That
section reads as follows:
(d) Exceptions. - There is no privilege under this rule in a proceeding in which one [1]
spouse is charged with a crime against the person or property of (1) the other, (2) a child
oleither, (3) a person residing in the household of either, or (4) a third person committed
in the course of committing a crime against any of them.

The State reads subsection (4) as stating that any confidential communications a
Defendant might make to his spouse regarding a crime against a third person cannot be
considered privileged. Reading the subsection in that way would gut the entire privilege, as any
confidential communication sought to be introduced could be admitted, so long as it involved the
Defendant committing a crime against a third person or their property. Under this interpretation,
there could literally be no spousal privilege any time a Defendant is accused of a crime against
any person or property. The Court declines to interpret the exceptions to the privilege in this
way. The subsection is indelicately worded, to be fair, but the only logical reading is that the
.'third person" language describes a situation where the Defendant has attempted to commit a
crime against the person or property of the other spouse, a child of either, or a person residing in
the household of either and in doing so inadvertently committed the crime against a person or
property of a third party.

 

[arkansasmimi]

Looks like the Judge did not go along with the Pros either on the case law it submitted (McKool) which I found interesting only because this same Def Attorney was the attorney for wife to the Defendant in the McKool case sited. The Judge found another case where both husb and wife were involved in same crime thats how the Judge is going to allow CL to testify. JMHO

Additionally, the Court is aware of and will apply the holding of United States v. White,
2009 U.S. Dist LEXIS 15906. That case notes that "the Eighth Circuit Court of Appeals has
approved the Joint criminal activity' exception to the privilege" ld, at27, citing United States v.
Evans, 966F.2d398,401 (8th Cir. 1992). Because the defendant in White was involved in a
drug conspiracy with her husband, the United States District Court for the Northem District of
Iowa, Westem Division, found that any alleged confidential communications did not apply if
they were related to ongoing criminal activity. ld, at28

The Defendant's wife will be permitted to testifu against him, and the defense's Motion
is essentially denied. More specifically, under the precedent cited by this Court, Lowery may
testify to anything she saw, heard, or observed that was not a confidential communication. If her
testimony does involve a confidential communication made during the joint criminal activity of
the pair, that testimony will be admitted under the'Joint criminal activity" exception to the
marital privilege. If her testimony involves a confidential communication made prior to the joint criminal activity of the pair, that communication will not be allowed unless the State can show it
was made in the presence of or disclosed to a third party. 12

BBM>>SO that would mean the planning would not be allowed? :thinking:

^^^12 The State has submitted three compact discs containing interviews with the Defendant where
he is alleged to have revoked the confidentiality of statements he made to Lowery. The Court has
reviewed all of this material, and his only mention of Lowery involves extramarital affairs he
participated in. Nothing in these interviews suffices to waive any confidential communications of
which the Court is aware.

 

[beaglebrd]

http://www.arkansasonline.com/news/2015/dec/09/judge/

Y'all are way ahead of the news, but thought I'd post this anyway. I hope he doesn't get anything less than life in prison. I don't think Carl Sr. could take it, considering things he has said in the press. AL is scary and needs to be locked up forever.

 

[arkansasmimi]

The State held up a piece of paper full of type written info and submitted it as to stuff that CL was going to testify to (iirc). Or that what it appeared to me. So unsure what the Judge is speaking of here, so very possible I was mistaken in what that was.

**Side note, AL Appealed his Fed Civil Suit to the 8th Circuit Court of Appeals in St Louis on the case at Tucker where they wouldn't allow him to write to CL then they confiscated his Legal Mail, which they admitted to, then they changed and allowed him to write to CL (case was allowed to move forward) then AL got moved to Varner shortly after and the case was dismissed as Moot because he was no longer at Tucker. Dec 9 (today) the Defendants at Tucker Appeallee Response was due and is shown to have been rec'd but has not been posted yet as it is reviewed first.

JMHO, just from reading I am curious how much the rulings on the Fed Civil Suits will have in the Criminal case. To me it possible could have a big effect, but thats just my opinion and it subject to change with more info released

The Defense indicates in their post-hearing argument brief that "the State introduced a
list of topics co-Defendant plans to testify to concerning events prior to the alleged abduction of
Carter." The Court is aware that the State is in possession of a list of this type, but it does not
seem to appear in the evidence submitted thus far to the Court. If the State provides this list to
the Court, it will review the substance of the list and make determinations regarding what will
and will not be allowed. The State has argued in their brief about classes of statements like this -
statements made to law enforcement, the media, and letters to the co-Defendant - that they allege
waived the privilege and statements made to the co-Defendant that they consider 404(b)
evidence of motive and intent. To the extent that the Court's ruling above has not already
disposed of these, the Court will rule on them prior to trial once it has been provided with the
aforementioned list.

 

[arkansasmimi]

http://www.arkansasonline.com/news/2015/dec/09/judge/

Y'all are way ahead of the news, but thought I'd post this anyway. I hope he doesn't get anything less than life in prison. I don't think Carl Sr. could take it, considering things he has said in the press. AL is scary and needs to be locked up forever.

I do feel for Mr Carter, the whole family for that matter. And that AL is scary. I just trying to figure out what they have still that we know of I mean that can be used? Hoping they are able to regroup (State) and proceed without that stuff. My head is spinning I can't even begin to imagine what the family and Pros team are thinking. But the Pros team is use to this stuff and hopefully explained as well as can be expected to the Family.

 

[arkansasmimi]

The Court turns to two final matters - the Defendant has asserted in his post-omnibus
argument brief that his arrest by the LRPD was not supported by probable cause and that "the
Court should suppress all evidence found in the silver iPhone because the search warrant was a
general warrant." The defense has briefed this argument, though it filed no motions regarding
either issue prior to omnibus.13 The State has not had the opportunity to respond to these allegations, and the Court will not rule on them until they have been given the opportunity to do
so.

1313 The Court is not aware of any assertion prior to this brief that the LRPD had no probable cause
to arrest the Defendant. The defense alleged in their pre-trial Motions that the search warrants for
the home and the vehicle were overly broad, and the Court has granted these Motions. Regarding
the assertion that the warrant for the silver iPhone was also a general warrant, the Court does not

 

[arkansasmimi]

From Beaglebrd link http://www.arkansasonline.com/news/2015/dec/09/judge/

Wright ruled in favor of defense motions to prohibit prosecutors from using most of the evidence, including cell phones, that investigators found at Lewis' home and in the car he was driving when he was arrested.

JMHO that may be incorrect, the phone that AL had with him in the car was the one that Swagerty took and was already in police custody, or rather that is how I reading it that they are allowed to use that phone.

 

[arkansasmimi]

Beaglebrd, have you ever noticed documents as these in this case being released in other cases? Especially High Profile in Arkansas? I been looking through when time allows and I think I said it when I seen where the first thing scanned that I hadn't came across anything like that at least in the Dockets I scanned thru. Just recently though they started scanning divorce paperwork so that may be why. But I still haven't seen in other cases (that I have looked at) documents with so much info. This reminds me of Florida stuff lol except we don't see the actual evidence documents... EXCEPT we have seen the Textme Document.

Hopefully potential jurors wont be reading stuff. I don't want a mistrial.

 

[arkansasmimi]

Bottom page 23/29 Judge does not believe AL but going by documentation. Best thing for AL to do (for himself I mean) is to stay off the witness stand. Somehow I don't see that happening. But jmho if he was smart at this point he would. Looks like to me (right now have to go back over this again) but most stuff that left the Def could argue that the Confessed Defendant of Murder and Kidnapping is just trying to blame someone else. It looks like only thing she can testify to is what happen during the kidnapping and murder. Is it her word against his? What do they have still?

Defendant's testimony completely incredible. The Court bases its decision that the Defendant
made a request to have counsel present during his interrogation solely on the material contained
in the LRD Officer's Report and gives absolutely no weight to the testimony of the Defendant.

 

[beaglebrd]

Beaglebrd, have you ever noticed documents as these in this case being released in other cases? Especially High Profile in Arkansas? I been looking through when time allows and I think I said it when I seen where the first thing scanned that I hadn't came across anything like that at least in the Dockets I scanned thru. Just recently though they started scanning divorce paperwork so that may be why. But I still haven't seen in other cases (that I have looked at) documents with so much info. This reminds me of Florida stuff lol except we don't see the actual evidence documents... EXCEPT we have seen the Textme Document.

Hopefully potential jurors wont be reading stuff. I don't want a mistrial.

I have not followed a case in Arkansas with so much information posted for all to see, but I have noticed more and more is getting posted as time goes on. Newer cases have information not found on cases from past years.

 

[arkansasmimi]

Now to go back over the Motions and Response from State vs Judges Orders/Decisions. https://caseinfo.aoc.arkansas.gov/c...=P&case_id=60CR-14-3928&begin_date=&end_date=

 

[arkansasmimi]

Thinking out loud.....Just thought of something. :waitasec: Most of the stuff they had against AL they had against CL. Wonder if they had anything else on her?? Will she now still testify? Will she renig and try to get a lawyer to do the same as AL did? Take her chances?:thinking: Again wishing for an Attorney to weigh in on this thread :help:

 

[arkansasmimi]

I have not followed a case in Arkansas with so much information posted for all to see, but I have noticed more and more is getting posted as time goes on. Newer cases have information not found on cases from past years.

Same here, thanks a bunch.
ETA, while it is nice if your following a case (especially since Media is not to be relied on in reporting much) it is nice to see stuff like this but from the stand point of case.. from watching and reading stuff on other cases where live stream and doc readily available I think it has greater potential to harm case. For both sides. JMHO People make up minds whether they admit it or not.

 

[arkansasmimi]

The defense's Motion to Suppress Statements During Interrogation is therefore granted
with respect to any statements made between his invocation of his right to an attorney in the
presence of Officer Roy and his re-initiation of contact with the investigators by "yelling" and
requesting to speak to the FBI agent again. The Motion is denied with respect to any statements
he made during interrogation after that re-initiation but before he said the word "lawyer" and the
investigators ceased communications with him.

Just read back thru my notes from OM Hearing.... OMG SOO much is not going to be let in! As far as what was on the tapes they admitted to lying to AL and taped. All the stuff the FBI / Blain spoke about is out.

>>>>When AL yelled and had them come back in, is when they went and got Det Allison and he and another Det with AL in car and 2 other Det following took AL to Haskell and towards Lonoke Cty. Nothing recorded. Def asked Det Allison why he didnt record on his iPhone, he didnt know he said. When they got back to the CID office and Det Allison asked about ARGOS thats when AL said word Lawyer and the interrogation ended. <<<< this to the best I can figure is what they can use of AL interview stuff. JMHO very possible I am incorrect.

 

[arkansasmimi]

Truly HATE to say it, but I feared this was going to be the outcome after hearing the testimony... :facepalm:

It should be pointed out that the record is silent as to whether an inventory search was
done on the Defendant's vehicle between the time when it was towed away by the investigators
and the point where the invalid search warrant was executed. There is an "inventory search"
exception to the warrant requirement. "Pursuant to this exception, police officers may conduct a
warrantless inventory search of a vehicle that is being impounded in order to protect an owner's
property while it is in the custody of the police, to insure against claims of lost, stolen, or
vandalized property, and to guard the police from danger. Benson v. State,342 Atk.684, 688. If
the State can show that any items found in the vehicle that they seek to introduce were
discovered during an inventory search and not during the search pursuant to the illegal warrant,
this Court will consider admitting them into evidence. Without that showing, all evidence found
in the vehicle is to be suPPressed.

ETA: I have to go back and look at my notes, but Crime Lab was there iirc during the search. And iirc they had left at a certain point, so unsure how this >> will play out as a save. JMHO

**************
Sorry to quote my own post, trying to keep this together. In the Def Brief after the OM Hearing, stated >

Page 10/16https://contexte.aoc.arkansas.gov/imaging/IMAGES/DMS/CK_Image.Present2?DMS_ID=0MRL2XZIGTP2CHD1AWAZ1QUVLBTFZQ
"Investigator Abels testified that he did not have any
knowledge that any of the items sought in the warrant would be inside the vehicle"

If he had no idea whether items would be in veh when he wrote up the Affidavit for the Warrant as well as the Warrant... to me that means they didn't have an inventory sheet, if so would have known right?

 

[NWLady]

They might not have this and they might not have that. BUT, they do have an alleged co-defendant who is going to testify regarding what his (AL) participation in the crime was. So, instead of concentrating on what CANNOT be used, maybe we should also look at what CAN be used.

Also, what about the posting on his FB page that is signed by him (as far as we know anyways) discussing his participation regarding burying the body etc??

And, if I understand it correctly, your knowledge and/or participation of a crime before, during and/or after, means that you can be charged with the exact same charges for that crime. Isn't that how it works??

 

[NWLady]

**************
Sorry to quote my own post, trying to keep this together. In the Def Brief after the OM Hearing, stated >
If he had no idea whether items would be in veh when he wrote up the Affidavit for the Warrant as well as the Warrant... to me that means they didn't have an inventory sheet, if so would have known right?

JMO but I think what the investigator is saying by "did not have any knowledge that any of the items sought in the warrant would be inside the vehicle" meant that yes, they were looking for items related to the crime, but they did not KNOW prior to the search/serving the warrant whether they would find anything or not. I think the "inventory sheet" comes into play after the warrant has been served and the search has been conducted and then they list/write down what items were taken, if any. That's my understanding but this is JMO and I could be misunderstanding how it all works.