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SUPREME COURT OF ARKANSAS 

No. CR-15-825

ROBERT FRIAR

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

Opinion Delivered: June 9, 2016

APPEAL FROM THE JACKSON

COUNTY CIRCUIT COURT

[NO. CR-2013-75]

HONORABLE HAROLD S. ERWIN, 

JUDGE

AFFIRMED.

COURTNEY HUDSON GOODSON, Associate Justice

Appellant Robert Friar appeals the sentencing order entered by the Jackson County 

Circuit Court convicting him of capital murder, two counts of attempted capital murder, 

and seven counts of committing a terroristic act. For these crimes, the circuit court 

sentenced Friar to life in prison without parole for capital murder1 and, as an habitual 

offender, to consecutive terms of imprisonment totaling 165 years for the remaining 

offenses. For reversal, Friar contends that the circuit court erred by denying his motion to 

suppress, in granting the State’s motion in limine, and by declining his request to provide 

the jury with instructions on lesser-included offenses. We affirm on all issues.2

 

1

 The State did not seek the death penalty. 

2 We heard oral argument in this case in Batesville as part of our “appeals on wheels” 

program. This court was honored by the presence of Attorney General Leslie Rutledge, 

who ably presented argument on behalf of the State in her hometown. Friar was well 

represented by Janice Vaughan, a four-time veteran of the travelling program. The court 

expresses its appreciation to them both for their participation and the professionalism they 
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2 

I. Factual Background

Our review of the record reveals that Delana Aguirre and her children lived in a 

duplex in the Crossroads area of Newport, Arkansas, with her sister and her mother, Leslie 

Curl. During the early morning hours of February 27, 2013, Friar fired seven shots from 

outside the home through the window of Aguirre’s bedroom where she had retired for the 

evening with two of her children. Aguirre survived three gunshot wounds—one to her 

back, one to her buttocks, and another to her arm. Unfortunately, Aguirre’s twenty-monthold daughter, Tacquari, perished after being struck by a single bullet. Aguirre’s other child 

was unharmed. 

According to the testimony, Friar and Aguirre had been dating for seven months, 

and the relationship had become volatile. Aguirre testified that Friar had physically abused 

her, saying that he had choked her, had struck her with a closed fist, and once had hit her 

with a belt buckle. She also testified that Friar had threatened her life and the lives of her 

children and her mother. On the evening of the shooting, Friar sent Aguirre an ominous 

text message saying, “YEA I WILL HAVE THE LAST SAY SO U N UR MOM TELL 

D KIDS U LOVE THEM.” At 2:32 a.m., mere seconds before the shots rang out, Friar 

placed a cellular phone call to Aguirre, wherein he said something that she could not 

understand, and then disconnected the call. Aguirre testified that she was sitting on her bed 

 

displayed to the court and to each other. Their exemplary arguments set a fine example for 

the school children and members of the community who were in attendance. 
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3 

smoking a cigarette when Friar called and that the light from her phone was shining in the 

direction of the window. 

The testimony also established that Friar was in close proximity to Aguirre’s home at 

the time of the shooting. Friar lived with his mother near Garfield Street, which was at 

least a couple of miles from Aguirre’s residence. However, that morning he had been riding 

in a vehicle with Bobbie Woodruff, who parked beside her aunt’s house, which was near 

Aguirre’s duplex. Bobbie testified that Friar got out of the vehicle to relieve himself; that 

he did not return to the vehicle; and that she picked him up a short while later around the 

corner from where she had parked. The evidence showed that Friar and Woodruff 

exchanged text messages and phone calls within minutes of the shooting and before they 

reconnected. 

 Officers arrested Friar that morning at 4:12 a.m. on Garfield Street and transported 

him to the Jackson County Sheriff’s Office. During the booking process, officers seized 

Friar’s clothing and his cell phone. At that time, Friar was heard to say, “Baby mama drama. 

It is what it is.” That morning, agents of the Arkansas State Police attempted to question 

Friar, but Friar refused to speak with them. However, later that morning, Friar gave a 

statement to an officer with the Newport Police Department, and the agents from the state 

police subsequently interviewed Friar twice that same day. In his three statements, Friar 

denied that he had been involved in the shooting. 

II. Motion to Suppress

 

As his first point on appeal, Friar argues that the circuit court erred by denying his 

motion to suppress. His argument is multifaceted. Friar contends that there was no probable 
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4 

cause for his warrantless arrest, which requires the suppression of his statements and of the 

evidence collected from his clothing and his cell phone.3 In addition, Friar argues that the 

circuit court should have suppressed his statements because the police failed to honor his 

requests for an attorney and to remain silent. He also asserts that his statements were not 

voluntarily given but were instead the product of coercion, intimidation, deception, and 

ignorance. 

A. Probable Cause 

We first address the issue of probable cause for the arrest. The record of the 

suppression hearing reflects that Officer Chris McClellan of the Newport Police Department 

was the first officer to respond to the scene and that his superior, Lieutenant Allen Edwards, 

arrived moments later. When Edwards entered the residence, he instructed McClellan to 

secure the area outside the home. Edwards said that Curl was hysterical and that Aguirre 

was conscious and sitting in a pool of blood on the floor in the hallway. Edwards testified 

that he immediately began to clear the house to make sure that the perpetrator was not still 

present. With that purpose in mind, he asked Curl who shot Aguirre and the child. Curl 

replied that it was “Junior,” whom she identified as Friar. Edwards said that Curl also 

informed him that Friar had sent Aguirre a text message that night telling her and Aguirre 

to “kiss their babies” and that Friar had called Aguirre moments before the shots were fired. 

He testified that Curl also mentioned that Aguirre and Friar had recently broken off their 

relationship. Edwards explained, 

 

3

 A small amount of gunshot residue was found on Friar’s clothing. 
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5 

I asked who did this. They told me. At that point I wasn’t interrogating 

them trying to gather every detail that would - like our investigators would 

be doing. I was trying to make the scene safe. Provide aid. They said he did 

it. I relayed that information along to the other officers and - you know, I 

told Patrolman McClellan later on, you know, get one of the deputies. Go 

to the lower end of town. See if you can locate Robert Friar and take him 

into custody. 

 Edwards further testified that he had known Friar since childhood. He said that 

sometimes large crowds gathered at the lower end of town and that Friar was often 

combative with the police on those occasions. Edwards described Friar as an “instigator” 

and said that Friar was the main focus of attention when dispersing the crowd. Edwards 

recalled a previous incident in which Friar had been accused of shooting a firearm at another 

person. For reasons of safety, Edwards had made other officers aware of Friar’s aggressive 

behavior. 

 In his testimony, McClellan stated that Edwards sent him to provide security at the 

hospital where the victims had been taken. He said that he spoke with Aguirre, who told 

him that Friar had shot her and that Friar had purchased a gun from Bobbie Woodruff. 

McClellan stated that Aguirre implied that Friar was her ex-boyfriend. When McClellan 

was dispatched to take Friar into custody, he located Friar walking down Garland Street. 

 Detective Chuck Benish also testified at the hearing. When he arrived at the duplex, 

Aguirre and Tacquari had been taken to the hospital. Benish said that Edwards advised him 

that the shooter had been outside the residence because shell casings were located near the 

window that was riddled with bullet holes. Benish drove to the hospital and spoke with 

Aguirre. She told him that Friar had shot her and that she had received a phone call from 

Friar just prior to the shooting. Aguirre also informed Benish that Friar had sent a text 
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6 

message to her that night saying that “[Aguirre] and her mother better tell their kids they 

loved them.” Benish recalled that Aguirre told him that Friar had asked her which bedroom 

she was sleeping in that night and that she had informed Friar that she was sleeping in her 

children’s bedroom, as she did not have one of her own. Benish testified that Aguirre never 

told him that she saw the shooter and that Aguirre informed him that she had not seen Friar 

in two days. 

 For reversal, Friar argues that the officers neither individually nor collectively had 

probable cause to arrest him. He contends that the evidence amounts only to a strong 

suspicion based on an ambiguous text message and a phone call immediately prior to the 

shooting. Friar points out that no one claimed to have seen the shooter and that the police 

located him after the shooting on the other side of town. Friar asserts that the statement he 

made during booking, the other statements he gave to the police, his clothing, and the 

information contained on his cell phone must be suppressed as the fruits of the unlawful 

arrest. 

 In reviewing the denial of a motion to suppress evidence, this court conducts a de 

novo review based on the totality of the circumstances, reviewing findings of historical facts 

for clear error and determining whether those facts give rise to reasonable suspicion or 

probable cause, giving due weight to inferences drawn by the circuit court. MacKintrush v. 

State, 2016 Ark. 14, 479 S.W.3d 14. A finding is clearly erroneous, even if there is evidence 

to support it, when the appellate court, after reviewing the entire evidence, is left with the 

definite and firm conviction that a mistake has been made. Johnson v. State, 2015 Ark. 387, 

472 S.W.3d 486. 
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7 

 This court has held many times that probable cause to arrest without a warrant exists 

when the facts and circumstances within the collective knowledge of the officers and of 

which they have reasonably trustworthy information are sufficient in themselves to warrant 

a man of reasonable caution in the belief that an offense has been committed by the person 

to be arrested. Friend v. State, 315 Ark. 143, 865 S.W.2d 275 (1993). Such probable cause 

does not require that degree of proof sufficient to sustain a conviction; however, a mere 

suspicion or even “a strong reason to suspect” will not suffice. Id. at 147, 865 S.W.2d at 

277. The assessment of probable cause is based on factual and practical considerations of 

prudent men, rather than the discernment of legal technicians. Roderick v. State, 288 Ark. 

360, 705 S.W.2d 433 (1986). It is based on the officers’ knowledge at the moment of the 

arrest. See Friend, supra. The determination of probable cause is also measured by the facts 

of each particular case. Wong Sun v. United States, 371 U.S. 471 (1963). 

 Here, the officers were advised by Aguirre and Curl of their belief that Friar was the 

shooter. In addition, they were told that Friar and Aguirre had recently broken up and that 

he had sent a threatening text message to Aguirre that night. The officers were also informed 

that Friar had asked Aguirre which bedroom she was sleeping in that night and that he had 

called her seconds before the shooting. The officers were also advised that Friar had 

purchased a gun. Moreover, they were aware that Friar was known to be aggressive and 

combative and that he had been investigated in connection with another shooting. When 

the totality of the circumstances is considered, we are unable to say that the circuit court 

clearly erred in ruling that the officers had probable cause to arrest Friar. Therefore, we 

affirm the circuit court’s denial of the motion to suppress on this basis.
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B. Miranda Rights 

 In addition to the absence of probable cause, Friar argues that the officers violated 

his right to counsel and his right to remain silent. He contends that, as a consequence, his 

three statements to the police should have been suppressed. 

 At the suppression hearing, it was disclosed that Friar had asked for an attorney 

multiple times during the booking process. Initially, the officers did not tell Friar why he 

had been arrested. However, Sheriff David Lucas informed Friar about the reason for his 

arrest within thirty to forty-five minutes of Friar’s arrival. Once the booking process had 

been completed, Friar was placed in a holding cell. Agents Wendall Jines and Michael 

McNeil of the Arkansas State Police had been tasked with providing assistance to the 

Newport Police Department in the investigation. At 7:19 a.m., Jines and McNeil attempted 

to interview Friar. They advised Friar of his Miranda rights, and Friar indicated that he 

understood them by signing a rights form. However, after completing the rights form, Friar 

immediately invoked his right to counsel and his right to remain silent. Consequently, the 

agents discontinued the interview, and no statement resulted from the encounter. 

 Michael Smith, a jailer whose shift began that morning at 8:00 a.m., testified that 

Friar got his attention and asked to speak with Officer Benish. Benish then came to the jail 

to meet with Friar. Benish testified that he reminded Friar that he had earlier declined to 

visit with the agents from the state police. He said that Friar explained that he did not speak 

with the agents because he did not know them but that he wanted to talk to Benish. Benish 

informed Friar of his rights, and Friar agreed to waive them. The rights form signed by 

Friar was completed at 8:22 a.m., and the interview lasted approximately twenty minutes. 
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In his statement, Friar denied that he had a gun and that he had been in the vicinity of 

Aguirre’s home after midnight.

 Friar gave a statement to Agents Jines and McNeil at 11:19 a.m. Jines testified that 

he learned that Friar had initiated contact with Benish after refusing to speak with him and 

McNeil earlier that morning. At the beginning of the taped interview, Jines said to Friar 

that Friar’s agreement to speak with Benish gave Jines the opportunity to talk to him. Jines 

did not repeat the Miranda warnings. Jines testified that Friar did not indicate that he did not 

wish to speak with them or that he wanted an attorney. During this interview, Jines asked 

Friar where he was at 2:32 a.m. that morning. Friar told him that he had been on Garfield 

Street.4 However, after Jines told Friar that his location could be pinpointed by using cellphone towers, Friar stated that he was in the Crossroads area of town at that time. At the 

conclusion of the interview, Friar told the agents that they could talk to him “anytime.” 

 Jines and McNeil met with Friar again that day at 5:34 p.m. At the start of this third 

interview, the following exchange occurred: 

JINES: Robert let me go back over something with you to make sure we 

understand each other. This morning I came in here and talked to you 

and you didn’t want to talk to me then. Then you called, had them 

call Chuck Benish. Chuck came up here cause you wanted to talk to 

him and then I come up here a little while later and I asked if I could 

talk to you and you said it was okay. Right? 

FRIAR: Yeah. 

JINES: And I want to talk to you some more right now, is that okay? All right. 

This is the rights form that I read to you this morning. Do you 

 

4

 The testimony established that Garfield Street was 2.7 miles from Aguirre’s 

residence. 
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remember me reading that to you and you initialed and signed it. Do 

you understand your rights? 

FRIAR: Yes. 

JINES: Okay. It’s okay to talk to you?

FRIAR: I don’t care.

In this statement, Friar continued to deny that he had shot Aguirre and her child.5

For reversal of the circuit court’s decision not to suppress these statements, Friar first 

argues that the officers violated his rights by failing to scrupulously honor his requests for an 

attorney. The State responds that the statements were not taken illegally because Friar 

subsequently initiated contact with Officer Benish. 

 Both the Fifth and Sixth Amendments provide a right to counsel. Vidos v. State, 367 

Ark. 296, 239 S.W.3d 467 (2006). Under the Fifth Amendment, the right to counsel is 

derived from the amendment’s prohibition against self-incrimination while in custody. 

Wedgeworth v. State, 374 Ark. 373, 288 S.W.3d 234 (2008) (citing Miranda v. Arizona, 384 

U.S. 436 (1966)). When the right is invoked, it must be “scrupulously honored.” Fritts v. 

State, 2013 Ark. 505, at 8, 431 S.W.3d 227, 231 (quoting Miranda, 384 U.S. at 479). Thus, 

when an accused has invoked his Fifth Amendment right to counsel during custodial 

interrogation, he cannot be subjected to further interrogation by the authorities until counsel 

has been made available to him, unless the accused himself initiates further communication, 

 

5

 Jines and McNeil interviewed Friar again the following day. The State did not seek 

to admit this statement into evidence. During the interview, Friar once again invoked his 

right to counsel, and the agents stopped questioning him. However, while the agents turned 

off the audio portion of the recording, the video continued to record their actions, and the 

tape shows that the agents continued to converse with Friar after he invoked his rights. 
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exchanges, or conversations with the police. Stevenson v. State, 2013 Ark. 100, 426 S.W.3d 

416. In other words, an accused may change his mind and decide to talk to law enforcement 

officials. Willett v. State, 322 Ark. 613, 911 S.W.2d 937 (1995) (citing Michigan v. Jackson, 

475 U.S. 625 (1986)). While the accused may initiate further contact with the police, the 

impetus must come from the accused, not the police. Airsman v. State, 2014 Ark. 500, 451 

S.W.3d 565. A statement will be admissible only if the accused initiated further contact, 

and in doing so knowingly and intelligently waived the right he had invoked. MacKool v. 

State, 365 Ark. 416, 231 S.W.3d 676 (2006). 

 In this case, the record shows that Friar asked for an attorney during the booking 

process and that he invoked his rights at approximately 7:19 a.m. during the attempted 

interview with agents Jines and McNeil. Less than an hour later, Friar, of his own volition, 

asked to speak with Officer Benish. Benish reminded Friar of his earlier request for an 

attorney and of his refusal to speak with Jines and McNeil. Benish also advised Friar of his 

rights, and Friar executed a rights form. Although Friar had previously invoked his rights, 

he clearly waived them less than an hour later when he initiated further communication 

with Benish and gave a statement after being informed of his rights. Based on established 

precedent as applied to the facts of this case, the circuit court’s ruling on this point is not 

clearly erroneous. 

 The question then becomes whether Friar voluntarily and intelligently waived his 

rights. Friar asserts that his statements were the product of intimidation and deception rather 

than a free and deliberate choice. He maintains that the acts of intimidation began when 

he was arrested at gunpoint by two officers. Friar points out that at first the officers did not 
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tell him why he had been arrested and that he requested an attorney during the booking 

process. He claims that Jines threatened to build a capital-murder case against him when he 

invoked the right to counsel. Friar also contends that the intimidation and deception 

continued after Friar’s interview with Benish. In this regard, Friar argues that, during the 

interview at 11:19 a.m., Jines gave him the impression that he could not refuse to speak 

with Jines after having spoken with Benish; that Jines asked him to reveal his cell-phone 

passcode; and that Jines lied in saying that his location could be pinpointed by use of a cellphone tower. Friar also maintains that Jines continued to deceive him during the last 

interview that day by telling Friar that the prosecutor would not cut a deal unless he 

cooperated; by saying that his clothes would “tell off on” him if there was gunpowder 

residue; in telling Friar that Aguirre could not talk and might not survive; by advising him 

that the officers would test the grass on his shoes for comparison with the grass outside 

Aguirre’s home; and by saying that he could receive the death penalty. Further, Friar asserts 

that he is more vulnerable to suggestion due to his low IQ of 65. 

 A statement made while in custody is presumed 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. Dickerson v. State, 363 Ark. 437, 214 

S.W.3d 811 (2005). In determining whether a waiver of Miranda rights is voluntary, 

knowing, and intelligent, we look to see if the statement was the product of free and 

deliberate choice rather than intimidation, coercion, or deception. Williamson v. State, 2013 

Ark. 347, 429 S.W.3d 250. In making this determination, we review the totality of the 

circumstances surrounding the waiver, including the age, education, and intelligence of the 
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accused; the lack of advice as to his constitutional rights; the length of detention; the 

repeated or prolonged nature of the questioning; the use of physical or mental punishment; 

and statements made by the interrogating officers and the vulnerability of the defendant. 

Osburn v. State, 2009 Ark. 390, 326 S.W.3d 771. We will reverse a circuit court’s ruling 

on this issue only if it is clearly against the preponderance of the evidence. Grillot v. State, 

353 Ark. 294, 107 S.W.3d 136 (2003). 

 When we examine the totality of the circumstances, there is no basis to overturn the 

circuit court’s decision. As stated, Friar initiated contact by asking to meet with Benish. 

Benish referred to Friar’s earlier refusal to speak with the agents from the state police, and 

Friar explained to Benish that he had declined to talk to them only because he did not know 

them. Before taking the statement, Benish apprised Friar of his rights, and as signified by 

his signature on the rights form, Friar agreed to waive his rights and to speak with Benish. 

Although agents Jines and McNeil did not repeat the Miranda warnings during the interview 

at 11:19 a.m., we have recognized that there is no constitutional requirement that a suspect 

be warned of his Miranda rights each time he is questioned. Bryant v. State, 2010 Ark. 7, 

377 S.W.3d 152. We observe that Friar had been advised of his rights twice in the hours 

before that statement was taken, and it is significant that Friar understood his rights by 

invoking them on the first occasion. Also, Friar told the agents at the conclusion of the 

11:19 a.m. interview that he would speak with them at “anytime.” Moreover, at the 

interview at 5:34 p.m., Friar acknowledged that he had agreed to speak with the agents 

earlier that day and that he was willing to meet with them at that time. During the final 

interview, the agents once again reminded Friar of his rights, and Friar agreed to meet with 
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them. The totality of the circumstances strongly supports the conclusion that Friar 

voluntarily agreed to speak with the officers. 

 Concerning the allegation of intimidation, at the suppression hearing Jines testified 

that he did not recall telling Friar that he would build a capital-murder case against him. 

Jines did advise Friar during the interview at 5:34 p.m. that a charge of capital murder could 

carry the death penalty and that the prosecutor was not likely to be lenient if he did not 

cooperate. The record also supports Friar’s claim that the agents were not completely candid 

with him, such as when they told him that his location could be pinpointed by use of cellphone towers. The agents acknowledged that this representation was false because 

determining the location of a cell phone requires two cell-phone towers, and the area had 

only one tower. However, the fact that a police officer makes an untrue statement during 

the course of an interrogation does not necessarily render an otherwise voluntary statement 

inadmissible. Goodwin v. State, 373 Ark. 53, 281 S.W.3d 258 (2008). We have found no 

fault with an interrogator trying to persuade an accused to tell the truth or to answer 

questions, even though there may be misrepresentations of fact made by the interrogator, 

so long as the means employed are not calculated to procure an untrue statement and the 

confession is otherwise voluntarily made. Pyles v. State, 329 Ark. 73, 947 S.W.2d 754 

(1997). “The police may use some psychological tactics and coercive statements in eliciting 

a custodial statement from the accused so long as the means employed are not calculated to 

procure an untrue statement, and the accused’s free will is not completely overborne.” 

Osburn, 2009 Ark. 390, at 54, 326 S.W.3d at 800 (quoting Rankin v. State, 338 Ark. 723, 

729, 1 S.W.3d 14, 17, (1999)). We cannot say that the tactics employed by the agents were 
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calculated to procure an untrue statement, and as noted above, the statements were 

otherwise voluntary. It is also well worth noting that nothing the officers said produced a 

confession, as Friar steadfastly maintained that he was not involved in the shooting. Under 

the circumstances, we are unable to conclude that Friar’s free will was completely overborne 

during the interviews. 

 Although mental capacity is a factor to be considered, standing alone it does not 

support suppression. Sweet v. State, 2011 Ark. 20, 370 S.W.3d 510. Here, the mental-health 

expert, who testified on Friar’s behalf at the hearing, stated that Friar’s intelligence quotient 

placed him in the category of mild intellectual disability. However, the expert said that he 

was in no position to say that Friar did not understand his rights. Additionally, the fact that 

the defendant is not a stranger to the criminal-justice system is a factor to be considered in 

determining whether a custodial statement was voluntarily made. Rankin v. State, supra. At 

the suppression hearing, the State introduced into evidence Friar’s numerous previous 

convictions, which demonstrate that Friar was well-acquainted with the criminal-justice 

system. All things considered, we affirm the circuit court’s ruling denying Friar’s motion to 

suppress. 

III. Motion in Limine

 Friar next argues that the circuit court committed reversible error by granting the 

prosecutor’s motion in limine to exclude testimony that a third person had confessed to the 

crimes. He asserts that the testimony qualifies for admission as a statement against interest. 

In response, the State counters that the testimony is not admissible on that basis because the 

statement is not clearly trustworthy. 
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 As pertinent to this issue, on May 4, 2015, a month before the trial, the prosecutor 

met with Friar’s aunt, Bessie Brandon, who reported that Tony Miller had confessed to her 

that he had “killed that baby.” Miller had died of ventricular fibrillation caused by cocaine 

abuse on March 31, 2013, approximately one month after the shooting. Although Miller’s 

death certificate stated that the manner of death was an accident, Friar represented to the 

circuit court that Bessie believed that Miller had actually committed suicide because of what 

he had allegedly done. Relatedly, Albert Brandon, Bessie’s son and Friar’s cousin, had 

directed the police to the location of a handgun that was forensically tied to the shooting. 

In arguing the State’s motion in limine to exclude Bessie’s testimony, the parties advised the 

circuit court that Brandon had made a statement to the police the day of the shooting, in 

which Brandon said that Friar had given him the gun; that Miller told Brandon to get rid 

of it; and that Miller took Brandon to the river to dispose of the gun. It was also disclosed 

that Bessie had given another statement to the police in which she professed to know 

nothing about the shooting. The circuit court granted the State’s motion to exclude Bessie’s 

testimony concerning Miller’s confession. 

 Pursuant to Rule 804(b)(3), a statement against interest is an exception to the rule 

against hearsay, provided that the declarant is unavailable. The rule states in pertinent part, 

A statement which was at the time of its making so far contrary to the 

declarant’s pecuniary or proprietary interest, or so far tended to subject him 

to civil or criminal liability or to render invalid a claim by him against another 

or to make him an object of hatred, ridicule, or disgrace, that a reasonable 

man in his position would not have made the statement unless he believed it 

to be true. A statement tending to expose the declarant to criminal liability 

and offering to exculpate the accused is not admissible unless corroborating 

circumstances clearly indicate the trustworthiness of the statement. 
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For a statement tending to expose the declarant to criminal liability and offered to exculpate 

the accused to be admissible under Rule 804(b)(3), the proponent of the testimony must 

show (1) that the declarant is unavailable, (2) that the statement was at the time of its making 

“so far tended to subject him to criminal liability” that a reasonable person in the declarant’s 

position would not have made the statement unless he believed it to be true, and (3) that 

corroborating circumstances clearly indicate the trustworthiness of the statement. Winters 

v. State, 2013 Ark. 193, at 11, 427 S.W.3d 597, 604 (citing Williford v. State, 300 Ark. 151, 

155, 777 S.W.2d 839, 842 (1989)). We have defined the term “trustworthy” to mean 

deserving of confidence; dependable; reliable. Welch v. State, 269 Ark. 208, 599 S.W.2d 

717, cert. denied, 449 U.S. 996 (1980). In determining the trustworthiness of a statement 

against the declarant’s penal interest, a court may consider “the probable veracity of the incourt witness, and the reliability of the out-of-court declarant.” United States v. Rasmussen, 

790 F.2d 55, 56 (8th Cir. 1986) (quoting United States v. Alvarez, 584 F.2d 694, 701 (5th Cir. 

1978)). Circuit courts have broad discretion in deciding evidentiary issues, and their rulings 

on the admissibility of evidence are not reversed on appeal absent an abuse of discretion. 

Conte v. State, 2015 Ark. 220, 463 S.W.3d 686. 

 In the present case, the State does not dispute that Miller is unavailable and that 

Miller’s admission tended to subject him to criminal liability. At issue is whether Friar 

presented to the circuit court corroborating circumstances that clearly demonstrate the 

trustworthiness of the statement. In his argument to the circuit court, Friar maintained that 

Miller’s statement was trustworthy because, according to Brandon’s statement, Miller had 

expressed an interest in disposing of the gun. Friar also insinuated that Brandon might have 
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received the gun from Miller. In addition, Friar asserted that Bessie did not come forward 

with the information because Miller was her friend and she wanted to protect him. In 

response, the prosecution pointed out that Bessie was related to Friar; that she had given 

inconsistent statements about her knowledge of the crimes; and that she did not disclose 

Miller’s confession until the eve of trial and over two years after the shooting had occurred. 

Citing United States v. Bobo, 994 F.2d 524 (8th Cir. 1993), the prosecution also asserted that 

Miller’s drug usage cast doubt on the reliability of his statement.

 Given the arguments presented to the circuit court, we discern no abuse of discretion 

in its decision to exclude the testimony. The circuit court considered Miller’s drug usage in 

assessing his reliability. The court also took into account the inconsistencies between 

Bessie’s statements, and the timing of her disclosure, as well as her familial relation to Friar. 

The circuit court could discard Friar’s explanation for Bessie’s failure to come forward 

sooner because Miller was dead and no longer in need of protection, while her nephew was 

in jail and facing the charges. The circuit court was apprised of Brandon’s statement that 

Friar had given him the handgun, and not Miller. Otherwise, the record reveals scant 

information surrounding the circumstances of Miller’s alleged revelation to Bessie. We 

know only that the two were friends and that the statement was made in the month after 

the shooting and before Miller’s death. Based on this record, we hold that the circuit court 

did not err in ruling that Friar failed in his burden of demonstrating trustworthiness of the 

statement. 

IV. Lesser-Included Offenses
Cite as 2016 Ark. 245 

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 In his last issue on appeal, Friar claims error in the circuit court’s denial of his request 

for instructions on first-degree murder and second-degree murder as lesser-included offenses 

to the charge of capital murder, as well as instructions on attempted first-degree murder and 

attempted second-degree murder as lesser-included offenses to attempted capital murder. 

He argues that there was a rational basis to support the instructions on the lesser-included 

offenses, even though his defense was that he was not the perpetrator of the shooting. Friar 

asserts that, based on the evidence, the jury might have concluded that, if he was the shooter, 

he may not have known that anyone was in the bedroom; that he meant to injure but not 

to kill; or that he acted either knowingly or purposely, rather than with premeditated intent. 

The State responds that no rational basis exists for giving instructions on lesser-included 

offenses because Friar denied that he had committed the shooting. 

 We have often stated that the refusal to give an instruction on a lesser-included 

offense is reversible error if the instruction is supported by even the slightest evidence. 

Starling v. State, 2016 Ark. 20, 480 S.W.3d 158. However, we will affirm the circuit court’s 

decision to not give an instruction on a lesser-included offense if there is no rational basis 

for doing so. Jones v. State, 2012 Ark. 38, 388 S.W.3d 411. It is well settled that when a 

defendant makes a claim of innocence, no rational basis exists to instruct the jury on a lesserincluded offense because the jury need only determine whether the defendant is guilty of 

the crime charged. Flowers v. State, 362 Ark. 193, 208 S.W.3d 113 (2005); Atkinson v. State, 

347 Ark. 336, 64 S.W.3d 259 (2002); Chapman v. State, 343 Ark. 643, 38 S.W.3d 305 

(2001). 
Cite as 2016 Ark. 245 

20

Given Friar’s defense of complete denial of any wrongdoing, we hold that the circuit 

court did not abuse its discretion by not giving instructions on lesser-included offenses. In 

Doby v. State, 290 Ark. 408, 720 S.W.2d 694 (1986), this court made clear that there is no 

rational basis for giving an instruction on a lesser-included offense where the defense is based 

on a claim of innocence. Subsequently, in Brown v. State, 321 Ark. 413, 903 S.W.2d 160 

(1995), cert. denied, 524 U.S. 909 (1998), we reaffirmed our position that no rational basis 

exists for instructions on lesser-included offenses when the defendant denies that he 

committed the offense. The Brown court observed that we had “wisely and consistently” 

applied this rule over the “past century,” and we “fail[ed] to find good reason” to overturn 

that body of law. Brown, 321 Ark. at 416, 903 S.W.2d at 162. We concluded the discussion 

by saying, “Sound reason undergirds the established legal principle in issue here, and stare 

decisis dictates our continued application of it.” Id. The same holds true here. The circuit 

court relied on this principle of law in refusing to give instructions on lesser-included 

offenses. Certainly, it cannot be said that the court abused its discretion by adhering to 

precedent long established by this court.6

V. Rule 4-3(i) Review

 

6

 In her dissent, Justice Hart’s reliance on Henson v. State, 296 Ark. 472, 757 S.W.2d 

560 (1988), is misplaced. There, a jury convicted Henson of aggravated robbery, and the 

issue on appeal was whether the circuit court had erred in refusing to give an instruction on 

the lesser-included offense of robbery. The evidence showed that Henson put his hand in 

either his coat or pocket after he was caught in the act of robbing a safe. We concluded that 

the case was not one of “all or nothing” and that a rational basis existed for giving a simple 

robbery instruction because the question whether Henson was armed with a deadly weapon 

was susceptible to more than one interpretation. By contrast here, the giving of instructions 

on lesser-included offenses is inconsistent with Friar’s admitted defense of complete denial. 

Thus, there is no rational basis to support instructions on lesser-included offenses. 
Cite as 2016 Ark. 245 

21

Pursuant to Arkansas Supreme Court Rule 4-3(i), the record has been reviewed for 

all errors prejudicial to Friar. No reversible error has been found. 

 Affirmed. 

BAKER, J., concurs. 

BRILL, C.J., and DANIELSON and HART, JJ., dissent. 

KAREN R. BAKER, Justice, concurring. I concur in the decision to affirm the 

circuit court, but I write separately because I would apply a different analysis to Friar’s claim 

that the circuit court erred in denying his request for instructions on first-degree murder 

and second-degree murder as lesser-included offenses to the charge of capital murder, as 

well as instructions on attempted first-degree murder and attempted second-degree murder 

as lesser-included offenses to attempted capital murder. Because the evidence in this case 

does not support that a rational basis exists for giving the lesser-included instructions, I 

would affirm the circuit court.

Friar was convicted of capital murder, which requires proof that “[w]ith the 

premeditated and deliberated purpose of causing the death of another person, the person 

causes the death of any person.” Ark. Code Ann. § 5-10-101(a)(4) (Repl. 2013). 

“Premeditation and deliberation may be formed in an instant. Winston v. State, 372 Ark. 

19, 269 S.W.3d 809 (2007). Intent can rarely be proved by direct evidence; however, a 

jury can infer premeditation and deliberation from circumstantial evidence, such as the type 

and character of the weapon used; the nature, extent, and location of wounds inflicted; and 

the conduct of the accused. Robinson v. State, 363 Ark. 432, 214 S.W.3d 840 (2005).” 

Marcyniuk v. State, 2010 Ark. 257, at 9, 373 S.W.3d 243, 250. 
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22

Here, Friar requested a jury instruction on first-degree murder, which requires proof 

that “[w]ith a purpose of causing the death of another person, the person causes the death 

of another person.” Ark. Code Ann. § 5-10-102(a)(2). A person acts “purposely” with 

respect to “a result of his or her conduct when it is the person’s conscious object to engage 

in conduct of that nature or to cause the result.” Ark. Code Ann. § 5-2-202(1). Friar also 

requested a jury instruction on second-degree murder, which requires proof that the 

“person knowingly causes the death of another person under circumstances manifesting 

extreme indifference to the value of human life,” or “[w]ith the purpose of causing serious 

physical injury to another person, the person causes the death of any person.” Ark. Code 

Ann. § 5-10-103(a). A person acts “knowingly” with respect to a “result of the person’s 

conduct when he or she is aware that it is practically certain that his or her conduct will 

cause the result.” Ark. Code Ann. § 5-2-202(2)(B). 

The test for whether an instruction should be given is whether there is the slightest 

evidence to support the instruction and whether there is no rational basis for giving the 

instruction. Morris v. State, 351 Ark. 426, 432, 94 S.W.3d 913, 917 (2003). Accordingly, in 

reviewing whether slight evidence or a rational basis exists for giving the instructions, the 

court considers what evidence Friar could have relied on as a rational basis to support giving 

the instructions. Friar must point to evidence in the record that supports a finding that he 

acted knowingly or purposely. See Flowers v. State, 362 Ark. 193, 213, 208 S.W.3d 113, 129 

(2005). 
Cite as 2016 Ark. 245 

23

In the instant case, Friar is unable to point to any evidence in the record that would 

support the lesser-included instructions that he acted knowingly or purposely rather than 

with premeditated and deliberate intent. Instead, he summarily asserts that, 

Counsel . . . reasoned that this is not a case of all o[r] nothing such as a case in which 

someone walks up to someone and executes them, rather this case involves a shooting 

from outside the house. . . Thus jurors could decide that even if Friar was the shooter, 

he might not have known anyone was in the room into which he shot FN1; or that 

he meant to injure, but not kill anyone; or that he did this knowingly or purposefully, 

rather than premeditated intent. 

FN1. [Aguirre’s] admission that the room she was sleeping in that night, for 

the first time, was not her usual place to sleep, supports this theory. 

Despite Friar’s claim, Friar does not point to any evidence to support his position. The 

record demonstrates that Friar sent the following text message to Aguirre hours before the 

shooting: 

YEA I WILL HAVE THE LAST SAY SO U N UR MOM TELL D KIDS U 

LOVE THEM. 

The evidence also demonstrates that Aguirre testified that seconds prior to the 

shooting, at 2:32 a.m., she was sitting on the side of her bed and felt her phone vibrate as 

she was receiving an incoming call. She testified that she reached underneath her pillow to 

retrieve her phone, that Friar was calling her, and that she accidentally answered his call and 

then said “hello.” She testified that he “said something into the phone and hung up. And 

then shots were fired.” She testified that she knew it was Friar calling because she had his 

name and picture saved for when he called and she heard his voice. Aguirre also testified 

that when she answered her phone that the light on her phone illuminated, her bedroom 

light was off and she was facing the window. Additionally, Arkansas State Police Criminal 
Cite as 2016 Ark. 245 

24

Investigator Special Agent Mike McNeil testified that seven shots were fired through 

Aguirre’s bedroom window. He testified that the bed where Aguirre and her children were 

sleeping was pushed up against the wall in the corner of the bedroom adjacent to the 

window. Special Agent McNeil further testified that the bullets traveled through the fourpaneled window into the bedroom. Specifically, he testified that seven shots were fired 

through the bottom left window pane which was immediately adjacent to the bed, and the 

bullets traveled at a significant downward angle toward the bed that was located right below 

the window. 

Based on my review of the record, as well as the facts and evidence introduced at 

trial, the record does not support a rational basis to support giving the lesser-included 

instructions. In sum, the evidence demonstrates the following: 

Friar had threatened Aguirre in a text message earlier in the evening. 

Moments before the shooting, Friar called Aguirre. Aguirre, while sitting on the edge 

of the bed in her bedroom and facing the window with the lights out, answered 

Friar’s call, which illuminated her phone and the bedroom.

Seconds after answering Friar’s call, a gun was used to fire seven shots through 

Aguirre’s bedroom window. 

The shots were fired through the same lower left pane directly at the bed where 

Aguirre was located. 

Accordingly, the evidence supports that Friar acted with premeditated and 

deliberated intent and does not provide a rational basis to support giving the lesser-included 

instructions. 

PAUL E. DANIELSON, Justice, dissenting. I respectfully dissent. I would reverse 

and remand on the basis that the officers lacked probable cause to arrest Friar on the 
Cite as 2016 Ark. 245 

25

information they had at the time of the warrantless arrest.1 As a former city attorney, deputy 

prosecutor, trial judge, and current appellate judge, I appreciate and understand pressure 

faced by law-enforcement officers to find the person responsible for taking someone’s life, 

especially the life of a child. However, we must always be mindful of a person’s 

constitutional rights and the duty of law enforcement to follow proper legal procedures in 

making an arrest. In my opinion, the proper legal procedures were not followed in this 

case, leading to Friar’s unlawful arrest. While probable cause does not require a degree of 

proof sufficient to sustain a conviction, a mere suspicion or even a “strong reason to suspect” 

will not suffice. See Friend v. State, 315 Ark. 143, 147, 865 S.W.2d 275, 277 (1993) (quoting 

Roderick v. State, 288 Ark. 360, 363, 705 S.W.2d 433, 435 (1986)). The issue of whether 

the officers in this case had probable cause to arrest Friar is based on the officers’ knowledge 

at the moment of arrest. See id. According to the testimony of the officers, the following 

facts were known to officers at the time of the warrantless arrest: (1) that shots were fired 

into the window from the outside of Aguirre’s apartment; (2) that the shooter had not 

entered the house; (3) that Aguirre and her mother stated that Friar was responsible for the 

shooting; (4) that there was no evidence that anyone saw the shooter; (5) that Aguirre told 

Detective Benish that she received a text message from Friar stating that Aguirre and her 

mother should tell their kids that they loved them; (6) that Curl told Lieutenant Edwards 

that the text message from Friar told them to kiss their babies; (7) that Aguirre said that Friar 

called her before the shooting and that she did not understand what was being said in the 

 

1

I also dissent for the reasons stated in Justice Hart’s dissenting opinion, which I join. 
Cite as 2016 Ark. 245 

26

call, but recognized the voice as Friar’s; (8) that she had not seen Friar in two days; and (9) 

that Aguirre implied that she and Friar had been in a relationship that had recently ended. 

The State’s primary argument to support its claim that the officers had probable cause 

to arrest Friar is that Aguirre and Curl told the officers that Friar was the shooter. The State 

admits that the officers never asked Aguirre or Curl whether they had actually seen Friar 

fire the shots. In an attempt to explain why the officers arrested Friar without any evidence 

that he was the shooter, the State claims that at the time of the arrest, the officers were not 

aware that no one had seen Friar shooting the gun. Following this flawed logic, anyone 

could have been arrested for this shooting based simply on a statement by another person. 

There has been no explanation by the State as to why the officers never asked the 

crucial question of whether Friar had been seen firing the shots. The State had no evidence 

at the time of the arrest other than mere statements from Aguirre and Curl that Friar was 

the shooter. In fact, when interviewed at the hospital, Aguirre testified that she had not 

seen Friar in two days. In this case, at the most, the officers had reason to suspect that Friar 

was the shooter, which does not amount to probable cause. Taking into account all of the 

information that the officers had (and did not have) in their collective knowledge at the 

time of the arrest, I would hold that they lacked probable cause to arrest Friar. For the 

reasons set forth above, I would reverse and remand. 

JOSEPHINE LINKER HART, Justice, dissenting. I respectfully dissent from the 

majority’s conclusion that the circuit court did not err in refusing to grant Robert Friar’s 

request to instruct the jury on the lesser-included offenses of first-degree murder and 

second-degree murder, as well as instructions on attempted first-degree murder and 
Cite as 2016 Ark. 245 

27

attempted second-degree murder. Further, I dissent from the majority’s analysis regarding 

whether the circuit court committed error in excluding an out-of-court declarant’s 

confession to the crimes. The majority cites Brown v. State, 321 Ark. 413, 903 S.W.2d 160 

(1995), cert. denied, 524 U.S. 909 (1998), and Doby v. State, 290 Ark. 408, 720 S.W.2d 694 

(1986), for the proposition that there is no rational basis for giving an instruction on a lesserincluded offense when the defense is based on a claim of innocence. Although Robert Friar 

pleaded not guilty, he did not present any evidence at trial. This distinction is critical in 

deciding whether Brown and Doby require that the circuit court deny a defendant’s request 

for a jury instruction on a lesser-included offense. 

When the defendant takes the stand and denies having committed the offense, then 

according to Doby and its progeny, the jury must either believe the State’s case and convict, 

or believe the defendant’s case and acquit. However, when the defendant does not present 

evidence, the jury is not faced with an all-or-nothing situation. In Henson v. State, 296 Ark. 

472, 757 S.W.2d 560 (1988), this court considered the application of Doby, 290 Ark. 408, 

720 S.W.2d 694, and reached the conclusion that, in a situation in which the defendant 

“did not take the stand to deny his guilt,” it did not “lessen the state’s burden,” as his “not 

guilty plea put the burden on the state to prove his guilt.” Id. at 474, 757 S.W.2d at 561. 

The court held that when “the facts are susceptible of more than one interpretation, a lesser 

included offense instruction should be given.” Id., 757 S.W.2d at 561. The court stated, 

“This is not a case of all or nothing.” Id. at 475, 757 S.W.2d at 561. Thus, when the 

defendant does not present a defense at trial, the court should consider whether the facts 
Cite as 2016 Ark. 245 

28

presented by the State are susceptible of more than one interpretation. If so, a lesserincluded-offense instruction should be given. 

Friar was convicted of capital murder, which requires proof that “[w]ith the 

premeditated and deliberated purpose of causing the death of another person, the person 

causes the death of any person.” Ark. Code Ann. § 5-10-101(a)(4) (Repl. 2013). Friar 

requested a jury instruction on first-degree murder, which requires proof that “[w]ith a 

purpose of causing the death of another person, the person causes the death of another 

person.” Ark. Code Ann. § 5-10-102(a)(2). A person acts “purposely” with respect to “a 

result of his or her conduct when it is the person’s conscious object to engage in conduct 

of that nature or to cause the result.” Ark. Code Ann. § 5-2-202(1). He also requested a 

jury instruction on second-degree murder, which requires proof that the “person knowingly 

causes the death of another person under circumstances manifesting extreme indifference to 

the value of human life,” or “[w]ith the purpose of causing serious physical injury to another 

person, the person causes the death of any person. Ark. Code Ann. § 5-10-103(a). A person 

acts “knowingly” with respect to a “result of the person’s conduct when he or she is aware 

that it is practically certain that his or her conduct will cause the result.” Ark. Code Ann. § 

5-2-202(2)(B). 

Here, the facts presented by the State are susceptible of more than one interpretation 

relating to Friar’s intent. Delana Aguirre testified that the shooter fired a weapon through a 

bedroom window. The lights were out in the bedroom, and the window blinds were closed, 

precluding her from seeing outside the window. Because the shots were fired through a 

bedroom window where the blinds were shut and the lights were out, the facts presented 
Cite as 2016 Ark. 245 

29

are susceptible to the interpretation that the shots were neither fired specifically at anyone 

nor fired with the intent to cause anyone’s death. As Henson holds, in such instances the jury 

should be instructed on the lesser-included offenses so as to put the burden on the State to 

prove the defendant’s guilt. 

This court has acknowledged many times that an instruction on a lesser-included 

offense is appropriate when it is supported by even the slightest evidence, and an instruction 

should be excluded only when there is no rational basis for giving it. See, e.g., Grillot v. State, 

353 Ark. 294, 318, 107 S.W.3d 136, 150 (2003). Recently, we restated our assertion that 

“no right has been more zealously protected by this court than the right of an accused to 

have the jury instructed on lesser–included offenses.” Starling v. State, 2016 Ark. 20, at 12, 

480 S.W.3d 158, 165. Here, the circuit court abused its discretion in denying Friar’s request 

to submit a jury instructions on the lesser-included offenses. Thus, I respectfully dissent. 

I further dissent from the majority’s analysis relating to the admissibility of Tony 

Miller’s out-of-court confession to the crimes. It is an open question whether Rule 

804(b)(3) of the Arkansas Rules of Evidence obligates this court to inquire into the 

trustworthiness of the witness, Bessie Brandon, who would have related to the jury the 

declarant’s confession. As one court noted,

A strong argument can be made that the credibility of the witness is irrelevant 

to admissibility under Rule 804(b)(3), which is basically a hearsay rule. A test for 

admissibility of hearsay statements based on the credibility of the witness who testifies 

about the statement is unrelated to the purpose of the general rule against hearsay. 

Hearsay statements are usually excluded because the declarant is unsworn and 

unavailable for cross-examination and because the jury cannot evaluate his demeanor. 

Consistently with these rationales, exceptions to the hearsay rule in Rules 803 and 

804 are made because the circumstances of the declaration indicate that the 

declarant’s perception, memory, narration, or sincerity concerning the matter 

asserted in the statement is trustworthy. The jury can evaluate the perception, 
Cite as 2016 Ark. 245 

30

memory, narration, and sincerity of the witness who testifies about the hearsay 

declaration, and that witness testifies under oath and subject to cross-examination. 

To exclude a hearsay statement because of doubt that it was made is to exclude it not 

because of its hearsay nature but for some other reason. Although some other rule of 

evidence (possibly Rule 403) may give the judge the authority to exclude evidence 

on that other basis, Rule 804(b)(3), to the extent that it is a hearsay rule, does not. 

United States v. Satterfield, 572 F.2d 687, 691–92 (9th Cir. 1978) (citations omitted). 

Essentially, the majority affirms the circuit court’s exclusion of Miller’s statement by 

focusing on whether Bessie Brandon was credible. Bessie Brandon’s credibility, however, 

was a question for the jury, not the trial judge. As Satterfield suggests, the focus should have 

been on the facts relating to the trustworthiness of Miller’s statement. Those facts would 

have included Albert Brandon’s testimony that Miller told him how to dispose of the 

weapon, as well as his intimation that Miller gave him the gun. Thus, I respectfully dissent 

from the majority’s analysis on this issue.

BRILL, C.J., and DANIELSON, J., join in this dissent. 

Janice W. Vaughn, Arkansas Public Defender Commission, for appellant. 

Leslie Rutledge, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.