Livingston v. State, 2013 Ark. 264

Kathy Livingston was charged with capital murder for the June 18, 2011 death of her husband after her daughter Dawn Sims called 911 saying Livingston had shot him; the daughter found the husband dead and Livingston wounded by a self-inflicted gunshot.
Officers made an emergency entry to the kitchen to render aid and secure the scene; they then waited outside for paramedics and other investigators.
Investigators prepared and obtained a search warrant executed after 8 p.m.; evidence seized from the living room and patio included blood samples, a 9mm shell casing, and a bullet.
Appellant moved to suppress the evidence seized under the first (nighttime) warrant, arguing the affidavit did not justify a nighttime search under Ark. R. Crim. P. 13.2(c).
The trial court denied suppression, finding (alternatively) that the evidence would have been inevitably discovered under a later valid warrant and admitted the items; a jury convicted Livingston of first-degree murder and sentenced her to life.
On appeal Livingston also challenged the denial of a mistrial after her trial counsel’s father died during trial; the court had continued the trial for one week instead of granting a mistrial.

Issue	Livingston's Argument	State's Argument	Held
Admission of evidence seized under first (nighttime) warrant	Warrant affidavit did not justify a nighttime search under Rule 13.2(c); seizure of items from living room/patio should be suppressed	The unauthorized nighttime warrant was not a substantial violation; evidence would have been inevitably discovered and admission was harmless error given overwhelming other proof	Admission of the challenged evidence was harmless error; conviction stands
Denial of mistrial after defense counsel’s father died	Defense counsel was ineffective to proceed that day; mistrial required	Continuance for one week protected interests of both parties; court gave cautionary instruction and later questioned jury about prejudice	Trial court did not abuse discretion in denying mistrial; continuance and jury safeguards were adequate

Pickering v. State, 412 S.W.3d 143 (Ark. 2012) (standard of review for suppression rulings)
Criddle v. State, 388 Ark. 744 (Ark. 1999) (harmless-error analysis for suppression rulings)
Abdullah v. State, 301 Ark. 235 (Ark. 1990) (harmless-error doctrine)
Wofford v. State, 330 Ark. 8 (Ark. 1997) (limits on searches incident to emergency entries)
Fouse v. State, 337 Ark. 13 (Ark. 1999) (invalidating unsupported nighttime warrants)
Garner v. State, 307 Ark. 353 (Ark. 1990) (nighttime-warrant requirements)
James v. State, 372 S.W.3d 800 (Ark. 2010) (intent may be inferred from wound nature/location)
Zachary v. State, 188 S.W.3d 917 (Ark. 2004) (mistrial is a drastic remedy; trial-court discretion)