Her main argument is that she did not knowingly and intelligently waive her rights. The rights form which Cope signed is identical to that in Fleming v. State, 284 Ark. 307, 681 S.W.2d 390 (1983). It does not say "I expressly waive my rights.
[1-4] Some of the principles by which we are guided in attempting to resolve these conflicts are: the burden is on the state to show the statement was made voluntarily, freely, and knowingly, without hope of reward or fear of punishment [Tatum v. State, 266 Ark. 506, 585 S.W.2d 957 (1979)]; when reviewing the admissibility of a confession on appeal, we make an independent determination of the voluntariness of the confession based on the totality of the circumstances, and the trial court's decision will not be reversed unless it is clearly against the preponderance of the evidence [Stone v. State, 290 Ark. 204 (1986)]; Fleming v. State, 284 Ark. 307, 681 S.W.2d 390 (1984); a confession based on threats of harm is inadmissible [Davis v. State, 275 Ark. 264, 630 S.W.2d 1 (1982)]; conflicts in the testimony are for the trial court to resolve as it is in a superior position to determine the credibility of the witnesses [Stone v. State, supra.]
Defense counsel then moved to have Mr. Beard struck for cause. The trial court allowed additional voir dire questioning by the State, qualified Beard as a juror, and denied appellant's motion. [6-9] In Fleming v. State, 284 Ark. 307, 681 S.W.2d 390 (1984), the Arkansas Supreme Court stated the standard of review for a ruling on juror qualifications as follows: We will not reverse a ruling on juror qualifications absent an abuse of discretion. Henslee v. State, 251 Ark. 125, 471 S.W.2d 352 (1971).
Similarly in United States v. Ogden, 572 F.2d 501 (5th Cir. 1978), the court found that where Ogden was arrested, advised of his Miranda rights, indicated that he understood them, and nevertheless chose to speak with law enforcement and give inculpatory statements, those statements were admissible. In Fleming v. State, 284 Ark. 307, 681 S.W.2d 390 (1984), the criminal defendant was advised of his rights, made no comment invoking them, and thereafter answered questions. The statements were found to be voluntary and admissible.
This determination lies within the sound discretion of the trial court. See Fleming v. State, 284 Ark. 307, 681 S.W.2d 390 (1984). Henry p. State, 309 Ark. 1, 5-6, 828 S.W.2d 346, 349 (1992)
[6] The use of a rights form that contains no express waiver provision to prove that an accused has waived his rights has not escaped strong criticism from this court. See, e.g., Leshe v. State, 304 Ark. 442, 803 S.W.2d 522 (1991); Fleming v. State, 284 Ark. 307, 681 S.W.2d 390 (1984). Humphrey correctly points out that the officers attempted to use a different form containing an express waiver later the same day. Nonetheless, a form with an express waiver provision is not a prerequisite to a finding of a knowing and intelligent waiver.
In Arkansas, it is presumed that persons comprising the venire are unbiased and qualified to serve. Franklin v. State, supra, citing Fleming v. State, 284 Ark. 307, 681 S.W.2d 390 (1984). It was appellant's burden to prove otherwise.
[10, 11] The conflicting testimony during the Denno hearing presented issues of credibility to be resolved by the trial court. See Fleming v. State, 284 Ark. 307, 681 S.W.2d 390 (1984). Clearly, the recorded statements given by Coleman, together with the record of the proceedings on the motion to suppress, supported the trial court's refusal to grant the motion to suppress his recorded statement.
In Arkansas, we presume people comprising the venire are unbiased and qualified to serve. Fleming v. State, 284 Ark. 307, 681 S.W.2d 390 (1984). The burden is on the contestant to prove otherwise, and we will not disturb a circuit court's ruling absent an abuse of discretion.
The waiver was also voluntary. In making his ruling the Court made a threshold inquiry whether there is any requirement that prior to making a statement an accused must sign a written waiver. Hayes's counsel conceded there is no such requirement, and we so held in Fleming v. State, 284 Ark. 307, 681 S.W.2d 390 (1984). [8, 9] The totality of the circumstances approach in these situations involves two major components; first, the conduct of the officers and second, the vulnerability of the accused.