Antonio L. BRITT v. STATE of Arkansas
CR 97-200
Supreme Court of Arkansas
Opinion delivered July 9, 1998
Petition for rehearing denied September 10, 1998
974 S.W.2d 436
ARNOLD, C.J., and GLAZE and CORBIN, JJ., would grant.
Winston Bryant, Att‘y Gen., by: Kent G. Holt, Ass‘t Att‘y Gen., for appellee.
ANNABELLE CLINTON IMBER, Justice. The appellant, Antonio Britt, was convicted of first-degree murder, two counts of aggravated robbery (merged with the murder convictions), two counts of kidnapping, and attempted first-degree murder. Britt was sentenced to a total of life imprisonment in addition to 110
The evidence adduced at trial showed that during the early morning hours of April 9, 1995, the victims, Jonathan Hancock and Bradley Davis, were driving in a white Chevy pick-up truck looking for drugs in Blytheville. They pulled up to a Pontiac Bonneville that was occupied by Britt, Clarence “Ray Ray” Williams,1 Scotty Hodges, and William Hunt. The victims asked them if they had any drugs, and Scotty Hodges walked to the driver‘s side of the truck and pulled a gun on Hancock. Britt went to the passenger‘s side of the truck and forced the passenger (Davis) out of the truck and into the car. Davis testified that the person that came to the passenger side of the truck was “rather skinny, and taller than I am.” Davis was six feet four inches and Britt was six feet five inches, the tallest of the four perpetrators. The man that accosted Davis placed a gun to his head and put him in the backseat of the car, and then forced him to get inside the trunk, along with Hancock.
Britt took the truck keys and drove the truck, following the Bonneville to an area adjacent to the river. Hodges accompanied Britt in the truck, while Williams and Hunt were in the Bonneville. While trapped in the trunk, Davis heard a tape continually played that had lyrics to the effect of “snatch ‘em, slam ‘em in the trunk, f**k ‘em, kill ‘em, dump ‘em, we don‘t give a f**k.” When the car stopped for the final time, Davis heard doors shut and the men arguing over guns. He believed that one of them said that a gun was jammed, and one said a gun was empty. The trunk opened, and Davis was able to see an armed person at the passenger side of the truck. He and Hancock got out of the trunk, and were told to lie down and take off their clothes. The shooting began after they stripped. At one point Davis heard someone say
Britt gave four statements to the police, all of which were admitted at trial. The first statement he gave was completely exculpatory, and he denied any involvement or knowledge of a crime. In a second statement he admitted that he had been present at the crime. He said that Hodges told him to get out and drive the white truck after the victims were forced into the trunk. In this version of events Hodges struck one of the victims with his gun, which resulted in the gun discharging into the other victim. Hodges then began shooting both victims. Britt jumped in the truck, and he told Hodges to “come on.” Britt and Hodges then went back to Osceola. In a third statement, Britt admitted to possession of a gun (probably a .380) during the incident and that he gave the gun to Hodges after they left the crime scene. In the fourth statement, Britt admitted that he went to the passenger side of the truck to take the passenger to the car. Britt said that he took a wallet from one of the victims. Britt also admitted to possession of a .380 that he fired one time in the air after Hodges started shooting. Britt said that he had lied in his earlier statements “about I didn‘t shoot no gun but I sh..., I shot the gun in the air.”
After Davis obtained help in the early morning hours on April 9, 1995, the police were on the lookout for the victims’ truck. It was spotted outside of Madison, and then it sped off and was later found abandoned in Madison. A nearby grocery-store employee testified that Britt and Hodges had come by around 5:00 or 5:30 a.m. in a white Chevy pick-up and had bought some gas. Britt was found sleeping at a residence about four blocks from where the truck was found. Immediately after Britt was arrested, the owner of the house found a wallet on the couch where Britt
A number of latent prints lifted from the trunk of the Bonneville and the pick-up truck were positive for Britt. Two guns were located: a Bryco Jennings .380 recovered from the Hodges’ home, and a Lorcin .380 recovered from a Freddie Malone, who said that Glen Blount gave him the pistol in the early morning on April 9. Bullet fragments removed from Hancock‘s head had been fired from the Jennings gun. Various other bullets and bullet casings recovered at the site of the shooting had been either fired or ejected from both the Jennings and the Lorcin guns.
1. Sufficiency of the evidence.
In his third point on appeal, Britt challenges the sufficiency of the evidence to support his convictions. Double jeopardy considerations necessitate that this court consider challenges to the sufficiency of the evidence prior to other alleged trial error. Burris v. State, 330 Ark. 66, 954 S.W.2d 209 (1997). We have often stated the test in determining the sufficiency of the evidence whether there is substantial evidence to support the verdict. Sanford v. State, 331 Ark. 334, 962 S.W.2d 335 (1998). Substantial evidence is direct or circumstantial evidence that is forceful enough to compel a conclusion one way or another and which goes beyond mere speculation or conjecture. Id. In making this determination, we review the evidence in the light most favorable to the State, and consider evidence both properly and improperly admitted. Id.
At trial, Britt moved for a directed verdict, arguing that there was no evidence linking him to the crime scene. Britt now emphasizes that the Jennings gun was found at the home of Scotty Hodges, and that the Lorcin was not connected to him either. With regard to the fingerprints on the Bonneville, Britt concedes that he was connected to the car at one point, but not when the victims occupied the car. Britt maintains that there is no proof that he was an accomplice aside from simply being present at the crime scene. This court has explained the required elements of accomplice liability as follows:
An accomplice is one who, with the purpose of promoting or facilitating the commission of an offense, either solicits, advises, encourages, or coerces another person to commit the offense, aids, agrees to aid, or attempts to aid the other person in planning or committing the offense, or, having a legal duty to prevent the offense, fails to make a proper effort to prevent the commission of the offense.
Ark. Code Ann. § 5-2-403 (Repl. 1993) . One‘s status as an accomplice ordinarily is a mixed question of law and fact. Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981). One‘s presence at the crime scene or failure to inform law enforcement officers of a crime does not make one an accomplice as a matter of law. Pilcher v. State, 303 Ark. 335, 796 S.W.2d 845 (1990) (citing Spears v. State, 280 Ark. 577, 660 S.W.2d 913 (1983)).
Williams v. State, 329 Ark. 8, 946 S.W.2d 678 (1997). Relevant factors in determining the connection of an accomplice to a crime are the presence of the accused in proximity of a crime, the opportunity to commit the crime, and an association with a person involved in the crime in a manner suggestive of joint participation. Banks v. State, 315 Ark. 666, 869 S.W.2d 700 (1994) (citing Smith v. State, 310 Ark. 247, 837 S.W.2d 279 (1992)). This court has repeatedly held that to sustain a conviction of a felony murder, it is not necessary that the defendant be shown to have taken an active part in the killing as long as he was an accomplice and had the requisite intent for the underlying felony. O‘Neal v. State, 321 Ark. 626, 907 S.W.2d 116 (1995) (citing Dixon v. State, 319 Ark. 347, 891 S.W.2d 159 (1995)).
In the present case, Britt first denied any involvement in any crime in his first statement to the police on April 9. Britt admitted that he had “rented” the Bonneville from a man known as “Big Bone.” In his second statement that day, Britt admitted that he was present with Williams, Hodges, and Hunt as Davis and Hancock were forced out of their truck and placed in the trunk of the Bonneville. He denied that he aided in placing the victims in the trunk. Britt also admitted that he drove the white pick-up to the site where the victims were shot. In this version of events Britt related that Scotty Hodges struck one of the victims in the head with a gun, resulting in the discharge of the gun at the other victim. Hodges then “went to shooting.” After this happened, Britt jumped in the pick-up and told Hodges to “come on.”
In another statement given at 12:19 p.m. on April 10, Britt admitted that he had possession of a gun from Madison, although he denied that he ever pulled the gun. In a statement given at 3:18 p.m. on April 10, Britt admitted that he went to the passenger door of the truck and escorted the passenger to the car. At the time, he knew that Hodges was attempting to rob the victims. “When I first came to the door I was, I was like wonderin’ what [Hodges] was doin‘, right? He already said he fixin’ to go rob ‘em but you know I went up there, then, he had the gun to dude head and I opened the door... I got him out, put him in the back seat of the car.” When asked whether he took anything from the victims as they were forced to undress, Britt said that he “got his wallet from him and threw it in the car.” In this version of events, Britt said that he fired his .380 gun “one time in the air” as Hodges began shooting the victims. He admitted that he had previously lied about not shooting a gun but that he had only shot the gun once in the air.
Davis testified that the person who approached him on the passenger side of the truck was skinny and taller than he was. According to the testimony, Davis was six feet four inches, while Britt was six feet five inches, the tallest of the four men that participated in the crime. Moreover, Britt had numerous fingerprints and palm prints on the trunk of the Bonneville which contradicted his version that he was not involved in placing the victims inside the trunk and removing them from the trunk. Britt admitted to driving the truck and following the Bonneville to the scene where the victims were shot. After the shootings, Britt yelled to Hodges to join him in the truck, after which they absconded. Britt also admitted to taking Davis‘s wallet, which was subsequently found on the couch where Britt had been lying immediately before his arrest. Based on the foregoing, we conclude that there was sufficient evidence that Britt assisted in the commission of the crimes for which he was convicted.
2. The April 10 statements.
Britt moved to suppress all four of his statements that were eventually admitted at trial. On appeal he brings three separate challenges to their admissibility. He argues that they were not
The evidence reflects that Britt was arrested between 8:30 and 9:00 on the morning of Sunday, April 9. He was taken to the St. Francis County jail. While there, he executed two rights-waiver forms, one which was read to him by Officer Bryan Crites and the other by Officer Mike Marshall. After the execution of these forms, Britt gave a statement that began at approximately 3:45 p.m. and concluded at 4:15 p.m. The second statement on April 9 began at 5 p.m. and concluded at about 6 p.m. The night of April 9 Britt was transported to the Mississippi County detention facility. On Monday, April 10, Britt again executed rights-waiver forms and was interviewed by the police resulting in two taped statements. The record reflects an “Affidavit of Probable Cause” executed by a judicial officer on Tuesday, April 11. The information was filed against Britt on June 19, 1995.
On appeal, Britt argues that he was denied a prompt first appearance as required by
An arrested person who is not released by citation or by other lawful manner shall be taken before a judicial officer without unnecessary delay.
The first appearance must be conducted in accordance with
(a) Upon the first appearance of the defendant the judicial officer shall inform him of the charge. The judicial officer shall also inform the defendant that:
(i) he is not required to say anything, and that anything he says can be used against him;
(ii) he has a right to counsel; and
(iii) he has a right to communicate with his counsel, his family, or his friends, and that reasonable means will be provided for him to do so.
(b) No further steps in the proceedings other than pretrial release inquiry may be taken until the defendant and his counsel have
had an adequate opportunity to confer, unless the defendant has intelligently waived his right to counsel or has refused the assistance of counsel. (c) The judicial officer, if unable to dispose of the case at the first appearance, shall proceed to decide the question of the pretrial release of the defendant. In so doing, the judicial officer shall first determine by an informal, non-adversary hearing whether there is probable cause for detaining the arrested person pending further proceedings. The standard for determining probable cause at such hearing shall be the same as that which governs arrests with or without a warrant.
This court has specifically refused to define what an “unnecessary delay” is under
As we have said, assurance of voluntariness is not the only concern. Of equal importance is the mechanism of the first appearance that guarantees that the accused‘s constitutional rights will be protected and implemented. “Indeed, [the rights afforded under Rule 8.1] are basic and fundamental rights which our state and federal constitutions secure to every arrestee.” [citation omitted]. Furthermore, if exclusion under the rule rests on a voluntariness standard, we are again faced with a swearing-match
the rule was designed to avoid. As was stated well in State v. Benbo, [570 P.2d 894 (Mont. 1977)]: Under [the voluntariness standard] the statutory requirement of an initial appearance without unnecessary delay after an arrest is practically meaningless. Only when a defendant can affirmatively show statements, admissions, or confessions attributed to him were either not made at all, or were involuntarily made, would the failure to provide him with a prompt initial appearance be taken into account. This would put an almost impossible burden on a defendant. Furthermore, there would be no incentive for arresting officers to conform their procedures to statutory requirements.
Duncan, supra. That being said, the Duncan court adopted a three-part test used in Pennsylvania: 1) the delay must be unnecessary; 2) the evidence must be prejudicial; 3) the evidence must be reasonably related to the delay. The Duncan court held that the statement at issue satisfied this test. It was “evident” that the delay was unnecessary and that the incriminating evidence was prejudicial. With respect to whether the incriminating statements were reasonably related to the delay, the court announced that it was sufficient “if it reasonably appears the delay contributed to obtaining the confession.” Id. When Duncan was first questioned, he gave nothing but exculpatory statements. Moreover, it was only after three-and-a-half days of incommunicado detention before he incriminated himself. Thus, the statements were reasonably related to the delay, requiring their suppression under
In Clay v. State, 318 Ark. 122, 883 S.W.2d 822 (1994), the investigating officer was asked about the delay in bringing the appellant before a judicial officer. The officer responded that he was asked by the deputy prosecutor to continue to the next court date to gather evidence. Appellant moved to suppress his last two statements due to an unnecessary delay in bringing him before a judicial officer after his arrest. This court agreed in part and reversed. In examining the delay under the three-part Duncan test, there was no question that appellant could have been presented on Monday, August 27. The Clay court noted a delay to gather evidence as an example of unreasonable delay. The delay was also like the one in Duncan because it was deliberate.
The statements at issue were also prejudicial given that appellant admitted to all of the elements of the crime charged, and had not done so in earlier statements. With regard to the reasonable relationship prong the Clay court held that the August 26 statement (taken on Sunday before the first possible court appearance) bore no reasonable relationship to the delay, and could be used at retrial. However, with regard to the August 28 statement, the investigating officer‘s statement that the delay was taken “for evidence involving the case” made it apparent that the expectation was that appellant would admit to the murder. “Short of that, however, we can say with assurance that, if [appellant] had been taken before a judicial officer on August 27, the judicial officer would have followed
In other contexts, this court has refused to find a violation of
Applying the three-factored Duncan test to the present case, it is clear that Britt was denied a prompt first appearance under
The April 10 statements were also prejudicial under Duncan. While it is true that in Britt‘s second statement on April 9 he admitted to being at the crime scene when the victims were
Finally, the April 10 statements are reasonably related to the delay, unlike the April 9 statements taken on Sunday. The relevant inquiry here is whether it reasonably appears that the delay contributed to obtaining the confession. See Duncan, supra; see also Landrum II, supra (factors “relevant to this determination” are 1) any proof that the delay was for the purpose of obtaining a confession; 2) the frequency of police interrogation; 3) whether the accused was incommunicado; and 4) the passage of time). Significantly, this is not a case where the defendant initiated contact with the police for the purpose of giving a statement or to negotiate a plea arrangement. See Landrum I, supra. Rather, the delay here was deliberate, and the police admitted that the purpose for the delay was in part for “further investigation.” Obviously, the delay produced the intended result, more statements from the defendant. See Clay, supra (finding reasonable relationship between delay and statement where investigating officer admitted that delay was taken “for evidence involving the case“). Moreover, had Britt been taken before a judicial officer on Monday, April 10, and counsel been appointed, see
The State urges that the statements at issue were otherwise voluntary, so as not to constitute a violation of
3. The April 9 statements.
a. Voluntariness.
We now take up a number of issues that are likely to occur upon retrial. First is the issue of the April 9 statements and whether they were voluntary. When determining whether a statement is voluntary, the issue on appeal is whether the statement was “the product of a free and deliberate choice rather than intimidation, coercion, or deception.” Sanford v. State, 331 Ark. 334, 962 S.W.2d 335 (1998). In making this determination, we review the totality of the circumstances, and reverse the trial court only if its decision was clearly erroneous. Id. Relevant factors are the age, education, and intelligence of the accused; the lack of advice as to his constitutional rights; the length of detention; the repeated and prolonged nature of questioning; and the use of mental or physical punishment. Id.
In the present case, the unrefuted testimony from the officers involved was that Britt was informed of and understood his rights. All of the officers testified that no coercive tactics were used, and that Britt did not appear to be under the influence of any intoxicants. While Britt was seventeen years old, and mental examinations placed his intellectual functioning in the borderline or low-average range, this court has held that age and mental capacity are factors that we consider; however, these factors standing alone are not sufficient to suppress a confession. Humphrey v. State, 327 Ark. 753, 940 S.W.2d 860 (1997). Britt highlights the fact that the interrogation room, which apparently had a glass wall, was covered with paper. This circumstance alone in no way proves that the police acted in a coercive manner. The trial court did not clearly err in denying the motion to suppress based upon the alleged involuntariness of the April 9 statements.
b. Ark. R. Crim. P. 4.1(e).
We decline to reach the merits of Britt‘s argument that his statements should have been suppressed due to a violation of
4. Judicial Bias.
In Britt‘s first point on appeal, which is ostensibly labeled in terms of the trial court‘s bias, Britt raises a number of issues that are better understood in terms of individual assignments of error. To the extent that Britt purports to make an independent cumulative-error argument here, we do not reach the merits due to his failure to make a cumulative-error objection below. See Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996), cert. denied, 520 U.S. 1244 (1997); Witherspoon v. State, 319 Ark. 313, 891 S.W.2d 371 (1995). However, where Britt has made a judicial-bias argument below, we consider the merits. See Franklin v. State, 314 Ark. 329, 863 S.W.2d 268 (1993) (“Absent an objection below the issue of bias may not be raised on appeal.“).
a. Trial court‘s questioning during voir dire.
During voir dire, the trial court questioned the panel members first and then allowed questioning by the parties. The trial court would occasionally interject questions to the panel members during questioning by the defense. During one cited sequence,2 defense counsel asked a panel member whether she knew about accounts of a crime in Lepanto where a father had shaken his baby to death. The panel member admitted to having strong feelings about the crime, at which point the trial court asked the panel member whether she would rely on media reports or evidence adduced in court. After a number of other questions by the trial court concerning the panel member‘s exposure to media accounts, defense counsel resumed questioning, and the panel member admitted that she did form an opinion about the crime when she read a media account. The trial court then asked if she had “an opinion right now as to who did this crime?” Defense counsel then moved to strike the panel member for cause, later interposing a “continuing objection” “to the Court‘s helping me out with instructions [sic]. I think that‘s an unfair comment on certain things, and the Court gave objections [sic] that tend to shed light on the way a person should answer, and I think that after the Court interjected on the last point [concerning the panel member] her whole demeanor and defensiveness changes and I think that interferes —.” The trial court then interjected that
In the present case, we cannot say that the trial court abused its discretion in the manner in which it questioned panel members. In the instance cited by Britt, it was not clear whether defense counsel was asking the panel member if she had formed an opinion about this case or about the Lepanto incident. In context, the trial court was attempting to ascertain whether the potential juror had prejudged the case and whether she could render a verdict based on the evidence adduced at trial rather than based on media accounts. This certainly does not amount to the court‘s systematic injection into the selection process as illustrated in Hobbs, supra.
b. Trial court‘s questioning of witnesses.
Britt‘s next point concerns the trial court‘s sua sponte questioning of witnesses. The medical examiner testified on cross-examination that he found no evidence of deviant sexual activity in his examination of Hancock‘s body. Following this cross-examination, and before any further questions by the State on rebuttal, the trial court inquired of the medical examiner whether his testimony concerning injuries on Hancock‘s penis was consistent with his testimony about the lack of deviant sexual activity.3 Defense counsel objected that “Antonio I believe is being denied a neutral and detached magistrate. From the beginning of voir dire, the Court has — and it is the Court‘s right, but I think to a certain degree has in my opinion been prosecuting. It has rehabilitated witnesses. When the State does something and something is left — or you know — when we challenge something or we do anything, the Court is quick to come back and ask a significant amount of questions as should the prosecutor, if they felt there was any —.” The trial court responded that “I‘m going to ask any question that I think is appropriate to clear up a confused issue. That‘s my job as judge.”
Britt further alleges that the trial court occasionally “rehabilitated” the State‘s witnesses following a defense objection, without waiting for the State‘s response to the objection. At one point in Officer Guthrie‘s testimony, defense counsel objected to him testifying concerning the various heights of the suspects. Before the State responded, the trial court went into a foundational colloquy with Guthrie and overruled the objection. The trial court proceeded in a similar manner following a foundational objection to the introduction of clothes recovered from the trunk of the car. After a chain-of-custody objection and a bench conference concerning the introduction of certain fingerprints, the trial court told the prosecutor to “Ask [the witness] how many of ‘em he
The judge has the right, in a criminal prosecution, to interrogate the witnesses but he has no right to usurp the place of the state‘s attorney, “and prescribe the order of introduction of the witnesses, and become active in their examination“; nor has he the right to assume the duties resting on the prisoner‘s counsel in the general conduct of the defense. He may ask questions which the attorneys had the right to propound, and failed to ask, when the answers to the same may tend to prove the guilt or innocence of the accused. It would be a reproach to the laws of the state, if he was required to sit and see the guilty escape, or the innocent suffer through a failure of parties or their attorneys to ask a witness a necessary question. * * * In all trials the judge should preside with impartiality. In jury trials especially, he ought to be cautious and circumspect in his language and conduct before the jury. He should not express or intimate an opinion as to the credibility of a witness, or as to controverted facts. For the jury are the sole judges of fact, and the credibility of witnesses; and the constitution expressly prohibits the judge from charging them as to the facts.
Jordan v. Guinn & Etheridge, 253 Ark. 315, 485 S.W.2d 715 (1972) (quoting Ratton v. Busby, 230 Ark. 667, 326 S.W.2d 889 (1959)). In a criminal case, the reasons for the restraints upon the judge‘s examination of witnesses are of greater importance than in civil cases. See Jordan, supra. In instances where this court has found impermissible examination of witnesses by a trial court, the judge has typically impugned the credibility of the witness at issue. See Oliver v. State, 268 Ark. 579, 594 S.W.2d 261 (Ark. App. 1980); West v. State, 255 Ark. 668, 501 S.W.2d 771 (1973); compare with Hillard v. State, 321 Ark. 39, 900 S.W.2d 167 (1995) (trial court
It goes without saying that a trial judge should refrain from advocacy, especially in a criminal jury trial, and “[t]he presentation of a litigant‘s case in an adversary proceeding should be left to the initiative of counsel who has the responsibility to represent the interest of his client.” See Oliver v. State, supra. In this case, the trial court‘s occasional questioning of witnesses before the State‘s response to a defense objection may have appeared unduly precipitous. However, it was in the context of evidentiary objections and did not impugn or bolster the credibility of those witnesses. Nor did the trial court‘s questioning of the medical examiner intimate an opinion as to his credibility. Under these circumstances, we cannot say that the trial court abused its discretion.
c. Time limitation on voir dire/Strikes for cause.
After some voir dire, the trial court announced that it was going to limit each side to thirty minutes of voir dire per three-person panel. However, the trial court also stated that it would not “hold an absolute clock” if the questioning warranted. Britt objected on grounds of denying him effective assistance of counsel, and his right to an impartial jury. We find no abuse of discretion here. Significantly, it does not appear from the record that the trial court mechanically imposed this time limit.
Second, Britt objected to being forced to make strikes for cause in the presence of the panel members when the trial court announced that strikes for cause should be made at the moment they arise. While Britt suggests that the court additionally discouraged counsel from approaching the bench, the record reveals that counsel was allowed to approach the bench out of the hearing of the panel to make strikes for cause. Accordingly, the trial court did not abuse its discretion here.
d. The rap tape.
Appellant appears to make an
In the present case, given the State‘s theory of accomplice liability, we cannot say that the trial court abused its discretion in admitting the tape. The evidence was admissible as being corroborative of the intent of Britt and his accomplices in carrying out a plan similar to that suggested by the lyrics on the rap tape.
5. Jury selection issues.
Apparently, the venire panel in this case was drawn entirely from the Osceola District of Mississippi County, and did not include people from the Blytheville area, the Chickasawba District. On appeal, Britt argues that the exclusion of people from the Chickasawba District violates his constitutional right to have a jury selected from the entire county, relying on
In the present case, while there is no constitutional provision dividing Mississippi County into judicial districts as there was for Sebastian County in Morgan, there is a legislative provision providing that Mississippi County is a multi-judicial-district county. See Act LXXXI of 1901 (“That the County of Mississippi shall be divided into two judicial districts, to be called the Osceola District and the Chickasawba District.“); cf.
Britt also moved to quash the jury panel based on lists which indicated that the trial court had excused a number of people on those lists. On “List Four” 92 of 213 names had been stricken with the notation “excused.” Fifteen of these people were excused with a notation from the judge, while fourteen were crossed out “for various other reasons.” In his motion to quash, Britt also alluded to another list where 77 of 213 names were excused. On appeal, Britt argues that this interferes with his right to “fundamental fairness, due process of law, and a fair trial under the Sixth and Fourteenth Amendments.”
In Ruiz v. State, 299 Ark. 144, 772 S.W.2d 297 (1989), this court rejected a similar argument that mass excusals by the trial judge constituted an abuse of the trial judge‘s authority and deprived them of a jury representing a fair cross-section of the community. The Ruiz court noted the absence of any suggestion that the discrepancy in the number of venire persons scheduled for jury service, some 403 individuals, and the number actually appearing, around ninety, was the result of any attempt to influence the makeup of the jury panel. “The explained absences, as well as the unexplained, are typical of the problems encountered in summoning large numbers of people to appear for jury service and the conflicts which they perceive as valid reasons not to serve. The record, in other words, presents nothing extraordinary with
6. Ark. Sup. Ct. R. 4-3(h) Compliance
The record has been reviewed in accordance with Ark. Sup. Ct. R. 4-3(h), and it has been determined that there were no errors with respect to rulings on objections or motions prejudicial to the appellant not discussed above.
Reversed and remanded.
ARNOLD, C.J., GLAZE, and CORBIN, JJ., dissent.
TOM GLAZE, Justice, dissenting. The majority court‘s decision to reverse this murder conviction will needlessly affect and shorten law officers’ future investigations of reported crimes by law enforcement officers. The majority opinion, in my view, cannot be justified.
The court reverses Antonio L. Britt‘s conviction based on the majority court‘s assertion that he was not brought before a judicial officer in a timely fashion as required by
In Duncan, the defendant was marginally retarded, and was kept incommunicado for three-and-one-half days. Duncan was not given a waiver form to sign, nor was it shown that he intentionally relinquished his rights or had a clear understanding of what his rights were. In addition, the prosecutor in Duncan took on an investigative role and, in doing so, became a witness as well as the prosecutor in Duncan‘s case. From the evidence presented, the Duncan court concluded that the evidence showed the delay in arranging Duncan‘s appearance in court was purposeful and that the prosecutor had made a deliberate decision to hold Duncan in detention and ignore the prompt-appearance requirement. In short, because of the State‘s misconduct and delay, this court suppressed an inculpatory statement Duncan made during the delay.
This court‘s decision in Clay was reversed for the same reason given in Duncan. This court in Clay said, “The delay in the case now before us was not only unnecessary, it apparently is of the same deliberate sort as we encountered in the Duncan case ....” The court in Clay then pointed to the State‘s misconduct whereby the deputy prosecutor directed a law-enforcement officer to delay taking Clay before a judicial officer with the expectation that Clay would later admit to capital murder.
There is absolutely nothing in the record before us that even hints that there was any misconduct on any law-enforcement officer‘s part in this case. But first, the issue of state misconduct aside, the record reveals that Britt obtained a prompt judicial hearing and that no unnecessary delay was evidenced in getting Britt to a hearing.
Britt and three accomplices murdered Jonathan Hancock and shot Bradley Davis shortly before 2:00 a.m. on Sunday, April 9, 1995. He was arrested the same day, and was arraigned the following Tuesday, April 11, 1995. These and other related crimes required the participation and coordination of criminal investigators from two counties, Mississippi and St. Francis.
The initial investigation commenced in Mississippi County at 2:37 a.m. on Sunday, when Hancock‘s murder was first reported. The investigation then extended into St. Francis County the same day, after authorities learned the truck occupied by Hancock and Davis at the time of the shootings had been seen in Madison. The police‘s finding the truck led to Britt‘s and one of his accomplice‘s arrest around 9:00 a.m. on Sunday. During the afternoon on Sunday, at 3:45 p.m., about seven hours after his arrest, Britt gave authorities an exculpatory statement; however, only an hour and fifteen minutes later, he admitted he had been present with other individuals at the time Hancock was killed. The record reflects that, during this short eight-hour period, Britt had been thoroughly mirandized, had been read his rights, and had voluntarily and intentionally signed and relinquished his rights.
Britt was then returned to Mississippi County for detention at 10:00 p.m. on Sunday night. On the morning of Monday, April 10, the Mississippi County Deputy Prosecutor appeared in municipal court where he learned that suspects in the Hancock murder were in custody at the jail for the crimes of murder, kidnapping, and aggravated robbery. He went to the jail to determine the status of the investigation and learned officers were taking statements from all suspects, including Britt. Blytheville Police Officer Mike Marshall explained that statements were being taken from suspects known to be involved with Britt; but because the officers were still interviewing suspects and had not completed their work, they did not take Britt to court that Monday. Officer Marshall further testified that he was also investigating Britt‘s connection with another related crime, aggravated robbery. Officers took Britt to court the next day, Tuesday, after they completed their interviews with all the suspects and had completed their paperwork.
From the foregoing, it is easily concluded that once the investigating authorities learned in the wee hours of April 9, 1995,
On the morning of April 10, officers renewed their efforts by conducting interviews of these additional suspects, and reinterviewing Britt. While the officers were required to have (and did have) probable cause to arrest Britt, they were free to follow their investigation wherever it led them. This included additional interviews with Britt so long as any delay in getting him to a magistrate was not part of circumstances employed to overbear his will in order to obtain a confession. See United States v. Daniels, 64 F.3d 311 (1995), cert. denied, 516 U.S. 1063 (1996). Here, the authorities had probable cause at the time of Britt‘s arrest and his confession on April 9.
Once again, the record is quite clear that there was no unnecessary delay between the time the officers first questioned Britt about Hancock‘s murder and the time he confessed, thereby implicating himself and others. Most important, no police misconduct occurred during Britt‘s incarceration, so there was no policy reason to apply the exclusionary rule to Britt‘s April 9 inculpatory statement. See Landrum, 326 Ark. at 999, 936 S.W.2d at 507. To the contrary, the proof shows that once the state deputy prosecutor learned of Britt‘s incarceration in the Mississippi County jail, he went to the jail, and was informed about the status of the investigations. Britt was then promptly taken before a magistrate the next day, April 11.
In the circumstances evident in this case, Britt was accorded a prompt appearance before a magistrate and was never made the subject of police misconduct that coerced his confession. I respectfully but strongly disagree with this court‘s ruling suppressing Britt‘s confession.
ARNOLD, C.J., and CORBIN, J., join this dissent.