The state Supreme Court Thursday overturned the conviction and life sentence of a Desha County man convicted in Ashley County of the 2006 kidnapping and strangulation death of a 17-year-old girl who was on her way home to Pine Bluff when her SUV ran out of gas on U.S. 65 at Dumas after visiting her boyfriend.
Kenneth Osburn was arrested on September 28, 2006, nearly a month after Casey Crowder’s body was found near a drainage canal east of Dumas with a plastic zip-tie around her neck.
The divided court said 49-year-old Osburn’s rights were violated when the 10th Judicial District Circuit Court failed to suppress statements he made to police after invoking his right to speak to an attorney.
The court reversed Osburn’s murder conviction and sent the case back to the circuit court for a new trial.
Osburn raised three points on appeal: the 10th Judicial District Court’s refusal to suppress two statements he made to police, admitting testimony regarding an incident that occurred 27 years before Crowder’s death, and not granting his motion for new trial based on an allegation of juror misconduct.
The state Supreme Court found that the lower court did not abuse its discretion in admitting testimony about a 1981 incident in which Osburn attacked a woman and did not address his claim of juror misconduct. It did, however, agree that the court’s failure to suppress Osburn’s statements to police were a violation of his rights.
Allegedly to avoid media gathered at the Southeast Arkansas Law Enforcement Center in Dumas the afternoon of his arrest, Osburn was taken to a metal building on property belonging to then Desha County Sheriff-elect Jim Snyder where he was interviewed by investigators trying to get him to confess to the kidnapping and murder.
The interview occurred on September 28, 2006 at 4:45 p.m.
“While the transcript and the recording of the interview reveal that at one point Osburn asked the agents to call his lawyer, the interview continued,” Associate Justice Paul Danielson wrote in the ruling. “Nonetheless, upon a subsequent request by Osburn for counsel, the… interview was terminated.”
While State Police investigator Rick Newton was outside of the metal outbuilding making arrangements for Osburn’s transportation, a conversation took place between Osburn and FBI Agent Boyd Boshears.
Although that conversation was not recorded, Boshears, at a suppression hearing before trial, testified that Osburn asked him if he could see his family. Boshears explained that could not make that decision but he was ask. He then explained the process that would take place, including transport and booking, followed by arraignment. Boshears testified that Osburn again asked to see his family and Boshears assured Osburn that he would ask. At that time, according to Boshears, Osburn stated that he was “in a mess.” After suggesting prayer, Boshears said, Osburn asked him to pray for him and that Boshears responded that he had and he would.
Osburn then became emotional, his demeanor changed, and he requested to see his daughter. After a brief discussion regarding faith, Boshears asked Osburn if he wanted to “keep talking,” to which Osburn replied that he wanted to ‘do the right thing and talk.’ Boshears then informed Newton that Osburn “requested to continue our conversation.”
The agents interviewed Osburn again at 7:25 p.m. when he confessed to his involvement. Osburn was then taken to the Southeast Arkansas Law Enforcement Center to see his mother and his children.
After visiting with his family, Osburn approached Snyder who later testified that Osburn had denied that he “did that to that girl” and told him that he was “outside” himself “watching (himself) do it.”
When Snyder told Boshears and Newton what Osburn said they interviewed him again.
In what is referred to in the Supreme Court ruling as the 8:55 p.m. interview, Osburn reportedly told the agents he wanted to talk, signed the rights form, and again confessed to his involvement.
Before trial, Osburn made a motion to suppress each of his statements, arguing that they were taken despite his requests for counsel and that he did not knowingly, voluntarily, and intelligently waive his rights.
Circuit Court Judge Sam Pope agreed that any statements made during the 4:45 p.m. should be suppressed but he denied Osburn’s motion to suppress the 7:25 p.m. confession and the 8:55 p.m. confession.
Citing a 1983 U.S. Supreme Court decision, Danileson said in order for an accused to initiate, his inquiry or statement must indicate some desire or willingness to discuss the investigation.
“Here, the interaction between Osburn and Agent Boshears began with Osburn’s inquiry as to whether he could see his family before being taken to jail. Agent Boshears, after telling Osburn that that was not his decision, according to his own testimony, began to describe to Osburn what was about to happen and what Osburn could expect,” Danielson wrote in the Supreme Court ruling. “Again, Osburn asked to see his family, and, again, Agent Boshears told him that he would ask. It was at that point that Osburn simply made the statement that he was ‘in a mess,’ which the State claims constituted an initiation of contact with the police. However, we think it is clear that such a statement could have a variety of meanings…”
The state Supreme Court ruled that “absolutely no inquiry or statement made by Osburn evinced any willingness on his part to reengage or reinitiate a conversation relating to the investigation; to the contrary, his inquiries and statements indicated a desire to see his family and expressed his despair. Nor did Osburn’s statement that he was ‘in a mess’ initiate.”
Danielson said the only statement made by Osburn that indicated any willingness to discuss the investigation after his invocation of the right to counsel came after Boshears asked him if “he wanted to keep talking.”
“After reviewing the totality of the circumstances, it is abundantly clear to this court that Osburn’s statements were the result of coercion and in violation of his Fifth Amendment right,” Danielson wrote.
“Osburn argues that his confessions were the product of intimidation, coercion, and deception, citing to multiple statements made by investigators in his earlier interviews, which he claims were threatening and regarded the death penalty and his family. We agree,” Danielson wrote.
Danielson cited statements investigators reportedly made to Osburn on September 4, 2006, before his arrest, including his being told of his “last meals”, that the jury would “cook his (expletive deleted),” and “they’re going to pump the needle in (his) arm.”
In addition, at the conclusion of the September 4 interview, Newton told Osburn that the next time they met, he would only be nice for a short time and, then, “I’m going to get ugly.”
“Osborn was repeatedly pressured in a coercive context to provide a confession,” Danielson wrote. “Osborn finally succumbed to that pressure, but only after the agents had essentially dangled his ability to see and protect his family in front of him time and time again.”
Arkansas Supreme Court Chief Justice Jim Hannah concurred in part and dissented in part.
“I concur in the majority’s conclusion that the statements should have been excluded,” Hannah wrote. “However, I dissent from the majority’s conclusion that the alleged assault on Connie Sparks constitutes evidence proving that Osburn murdered Casey Crowder twenty-seven years later.”
In his dissenting opinion, Associate Justice Jim Gunther said the interview tactics used by the investigators “was not contrary to our case law.
“We have observed that the police may, without violating an accused’s rights, attempt to play on his sympathies or explain to him that honesty is the best policy, providing that the accused’s decision to make a custodial statement is voluntary in the sense that it is the product of the accused’s exercise of his free will,” Gunther wrote. “A review of the transcripts does not reveal that Agents Newton and Boshears improperly used coercive or intimidating tactics.”
Also dissenting, Associate Justice Robert Brown said that suppressing of the confession, “eviscerates the State’s case against Osburn, making a retrial a remote possibility.”