*1 HENRY v. STATE of Arkansas Gale Billy CR 82-52
Supreme Court of Arkansas Opinion delivered February March denied 1983.] [Rehearing *4 Defender, for appellant. Michael Public Dabney, Deputy Clark, Gen., Fewell, L. Asst. Atty. Victra Atty. by: Steve Gen., for appellee. an Purtle, convicted as I. Justice. John murder, or hindering
accomplice capital apprehension He was an offender. prosecution being habitual 40 years murder and to felony sentenced to death for apprehension prosecution. for hindering imprisonment be set out they will points; On appeal appellant argues do find any prejudicial this We body opinion. sentence but reduce death error we comparing appellant’s life without parole. on the were together Britton Rodney Britton had Fork was killed. date the West Chief Police on farm where appellant a few out spent days camped On Mountainburg, with his mother Arkansas. lived near 20, 1981, day and Britton spent March o’clock after Shortly and around the 9:00 City Fayetteville. Fayetteville on that date the Pizza Hut North p.m. *5 Britton was by Subsequently robbed an armed intruder. Hut North. man robbed the Pizza identified as the who in cafe were at a that he and Britton stated but in question, on the date Fayetteville p.m. 9:00 for about car and was gone another Britton borrowed returned Britton contended that when minutes. Appellant trunk, car, keys appellant’s opened he obtained the color took out one of another in the truck and jacket placed and appellant after 10:00 Britton Shortly p.m. it on. and put Mountainburg, toward south on Highway headed U.S. in Fork to obtain station West at a service they stopped when in the process attendants were The service station gas. At that time to sell them any gas. and refused closing car, of his walked who had been out driving, got appellant, Britton moved over to the to the side and passenger around indicate had been driver’s The facts position. appellant He gave and also medicine for heart disease. drinking taking intoxicated because the attendants being the appearance he when he walked around the car. After stated staggered an attendant notified Chief Paul Mueller away car pulled of the car to be Chief occupants appeared drinking. attempt Mueller then south on an proceeded Highway 71 to overtake the car. with the caught up suspects Mueller his them over the side of the road. using bluelight pulled he in the making stop While radioed that parties vehicle were his acting message. That was last “squirrely.” After he the car the stopped out got side and officer’s car when passenger started back toward the car, Mueller him Chief told back get stating wanted to talk with the driver. Britton then out of the got driver’s side and four shots were fired. A immediately nearby resident testified that the first two shots were louder than the second two shots. Britton magnum a .44 caliber using and Chief Mueller had a caliber pistol magnum pistol. .38 Chief Mueller was shot twice Britton and by apparently chief fired one round which struck the in the back. The other bullet fired the chief hit the trunk and passed vehicle. A passenger into compartment appellant’s witness on the was driving appel- arrived scene as Britton Mueller, lant’s car The witness found Chief with away. hand, the shoulder of the in front of on road pistol dying his At in the of a ditch. edge vehicle. that time The wounds to turned out not to be too serious. matter of officers arrived on the scene within a
Back-up them, minutes and one of armed with a shotgun, approached *6 shoot, surrender,” or “Don’t who stated: “Don’t I appellant shoot, shoot, or I’ve been shot.” Appellant I “Don’t give up” he did not know officers at the that police hospital stated of Britton who he stated was a hitchhiker. identity road, a mile or so down the vehicle found Appellant’s It to the and department out of was towed gas. police asking without either a warrant or appellant searched to search the vehicle. The search produced, permission which was identi- money bag other a among things, green one which was used fied of the Pizza Hut as employees robbery Doug Fogley, in the of that establishment. Officer search, that in the who conducted the knew at the time of the search. also Fayetteville Fogley hospital test on a trace metal detection and administered The gun determined that he had handled evening. and four other officers interro- following morning Fogley in the intensive care unit of the Veterans gated appellant Fayetteville. interrogation Administration Hospital was conducted with the consent of the attending physician. this indicated that he had During interrogation appellant was killed several (Britton Britton as a hitchhiker. picked up in a shootout with the not far from the scene days police later Mueller.) of the death of Chief Britton the trial it was established that
During while had become time to- acquainted serving at Leavenworth Federal There was no gether Penitentiary. but of Britton when identity knew dispute he said he did not know him. was allowed serve his trial. After his conviction as an during as co-counsel murder and accomplice capital hindering apprehension jury he was allowed to address the on prosecution that the requested this penalty phase. During argument him the death rather than life jury penalty imprison- give ment. The jury obliged.
I. THE TRIAL ITS DISCRETION IN COURT ABUSED FOR SEVERANCE DENYING DEFENDANT’S MOTION THE HINDERING APPREHENSION OF OFFENSES OF MURDER. AND ACCOMPLICE TO CAPITAL who Britton The evidence that was clearly indicated There was no fired the shots which killed Mueller. Chief in the shoot direct evidence that assisted appellant actively granting of the officer. Our established law that ing *7 of the trial a severance is within discretion refusing State, 94, 617 court. Denton v. Ark. Ruiz & Van S.W.2d6 Rule (1981). (b) A.R.Cr.P. states: 22.2 court, The on of (b) application prosecuting on of the other than attorney, or defendant application under (a), subsection shall a offenses: grant severance trial, if (i) before is deemed a appropriate promote to fair determination of the defendant’s or innocence guilt of each offense . . .
Pursuant
to
rule the
deter-
foregoing
trial court
mined that it was not
to
a
in order
necessary
grant
severance
to promote a fair determination of the
or
defendant’s guilt
innocence.
facts
to prove the offenses would
necessary
almost all be
in
required
each trial
if a severance were
Evidence
granted.
Pizza Hut
in
robbery was found
trials,
appellant’s car. This evidence would be used in both
evidence,
scheme,
as would other acts and
to establish a plan,
motive or state of mind. The conduct of
both
appellant,
murder,
before and
after
would be
for the
admissible
a
purpose
showing
plan or scheme.
Rule
A.R.Cr.P.
21.1
that
(b) provides
offenses
be
when
may
joined
trial
they
or
acts
based on
same conduct
on a series of
con-
are
or
of a
scheme
parts
single
nected together
constituting
Owen v.
plan.
(1978).
II. THE TRIAL COURT ERRED IN FAILING TO DI- RECT A VERDICT.
The appellant argues that the evidence insufficient the conviction of support murder. realize capital We that the evidence is circumstantial primarily but it was such the average person that it would induce the mind of
force
was of sufficient
and
It
beyond suspicion
conjecture.
pass
of reasonable
finding
force and character
support
one
or the
way
material
and to
a conclusion
certainty
compel
other.
S.W.2d 748
Jones
The evidence revealed that
and Britton had
been
most of the
and that both were
at
together
day
present
time of the
of Chief Mueller.
were
shooting
They
automobile and evidence of the
appellant’s
robbery
by
Pizza Hut was found
the automobile which was owned
and driven
Britton. Several witnesses
testified as to the association of
and Britton while
were
Leavenworth. Most of the witnesses indicated
they
was not a friend of Britton’s.
inmate
One
Leavenworth testified
he had
Britton
from
observed
*8
as they
matters
ate
appellant discussing legal
together
from
Leavenworth.
was released
Leavenworth
Appellant
to Britton’s release. Britton arrived at
prior
appellant’s
the
15,
in or around
on
He stayed
residence
March
1981.
residence until
the death of Chief Mueller on
appellant’s
20,1981.
the
he
falsely
March
told
officers that
did
not know Britton. There is considerable other evidence
the
and Britton were
supporting
finding
at the time of the death of Chief Mueller. It is
acting together
of the
to determine the
province
jury
credibility
203,
State,
witnesses. Riddick v.
Ark.
271
Ark. 1977) Stat. Ann. 41-303 defines (Repl. accomplice § solicits, advises, as a who or coerces the person encourages aids, aid, other to commit the who person crime or agrees or to aid the other in or attempts person com planning Also, it. if the mitting has a person duty prevent commission of an offense and fails to make a effort to proper so, do he is an Bow v. accomplice. les 265 in a (1979). A need not take an active person part S.W.2d murder to be if convicted of such the person accompanied or murder who committed the person persons actually and assisted such commission. Hallman &Martin v. 901, 575 Our murder capital law 1977) is as Ann. which codified Ark. Stat. 41-1501 (Repl. § states in part:
A(1) commits murder if: person capital (b) with the and deliberated premeditated purpose officer, causing any death of law enforcement jailer, official, fireman, official, other prison or court judge officer, officer, military probation any per- parole sonnel, when person duty, such line of he acting causes death of or . . . any person; A review of the record confirms jury that the could have properly found the as an accomplice appellant guilty the death of causing Chief Mueller.
III. THE TRIAL ERRED ADMITTING THE COURT IN STATEMENT, SHOOT, “DON’T I GIVE UP.” the trial Officer Price
During testified that when first at the Mueller was Henry scene where Chief approached killed, Henry, who was on his back “Don’t lying stated: shoot, I that his statement give up.” appellant argues shoot, jury right “Don’t I’ve been shot.” The had the *9 decide which statement to believe. to Appellant’s objection the is statement that it was not to his provided response motion for discovery. It is conceded the state that it was not to the provided defense. contended state prosecutor itself did not know the statement had been made until revealed in the testimony at trial. The defense had timely entered its motion for discovery to A.R.Cr.P. Rule pursuant We do not find 17. evidence that state any deliberately avoided this information order to have it obtaining 19.7, presented at trial. Under Rule is to the court up it trial to decide whether such a should be statement admitted. knew Appellant that Officer Price would be a witness and had his counsel time to right duty, permitting, 488
interview the officer and perhaps discover what officer to at the going say trial. relies Appellant on the case of State, 527, Williams v. 593 for the (1979), that the argument statement should be excluded. In Wil- liams, statements, the state found out about other which had defense, not been furnished the infor- before trial. The day mation was not furnished to the defense until after voir dire of doubt, then, We jury. reversed and stated: “There is no officer knew police of the statement. That know- to ledge imputed the prosecuting In the attorney.” present case the state and the defense found out about the statement at the same time. We find that it was not prejudicial error for the trial to continue after Officer Price made his unexpected Furthermore, statement. we cannot with say any degree certainty statement was either inculpatory damaging appellant’s defense.
IV. THE DEATH PENALTY IS UNCONSTITUTIONAL IN THIS CASE. argues that an who did not accomplice in the
participate actual murder should not receive the death In penalty. 195, 106, Collins v. 261 Ark. 548 S.W.2d cert. den. 434 U.S. denied rehearing (1977), U.S. 977 we discussed this court’s responsibility reviewing death cases as they relate other death cases. In Sumlin v. (1981), we S.W.2d 372 also made a comparison the sentence which had been imposed since Collins. We reviewed Sumlin’s death sentence and com- it with pared that of life imprisonment without parole which had been given his wife in the same case. We reduced Sumlin’s death sentence to life without We parole. cannot compare appellant’s sentence to that of Britton because he was killed by officers soon police after the murder. After comparing with other death sentences and sentences of life without we find parole, that appellant’s sentence should be reduced from death to life without parole for two reasons: (1) the evidence is that he overwhelming an merely and did not accomplice personally fire the fatal *10 shots, and (2) have jury may sentenced him to die out of
489 in the murder because the main actor passion prejudice not be tried. could
V. APPEL- THE TRIAL COURT ERRED IN DENYING LANT’S THE DEATH MOTION CHALLENGING OF QUALIFICATION PROSPECTIVE JURORS. readily admits that we have previously a death is im-
rejected argument qualified jury State, v. Ark. 466 permissible. Lasley (1981). We are at this time still of the opinion such is qualification constitutional.
VI. THE TRIAL COURT ERRED IN ITS RULING TO ALLOW IMPEACHMENT OF DEFENDANT BY USE OF A PRIOR ROBBERY CONVICTION. no other
Perhaps rule evidence or law given has us so many as Rule problems 609. Appellant brought the properly matter of the prior conviction to the robbery attention of the court a motion in through limine. The court overruled the motion and allowed the state to question appellant about a 379, 625 prior robbery conviction. In Jones (1981), S.W.2d 471 we stated: The Uniform Rule [609] unquestionably changed the law, Arkansas which permitted of a formerly proof conviction of a any felony to witness’s credi- impeach bility ... Uniform specifically Rule is directed to [t]he the conviction’s probative respect value with only . . credibility . prior
Evidence of criminal convictions is not admissible to bolster prosecution’s case that the is by showing accused bad but limited person discrediting the purpose rule, stands, witness’s testimony. We think the as presently is as stated in Floyd v. 645 S.W.2d (1983): “... be probative weighed value must against
490 convictions effect evidence of prior when
prejudicial its did abuse think that the court admitted.” We the effect against in the weighing prejudicial discretion used to be prior the conviction allowing value probative the In the case appellant for impeachment purposes. present during his conviction himself mentioned repeatedly prior waiver the and this would constitute a the course of trial the circumstances. under
VII. THE ERRED IN REQUIRING THE TRIAL COURT APPELLANT TO BE TRIED WHILE INCOMPETENT TO TRIAL. STAND of mental did not raise the defense defect trial court. After both sides had rested
disease or submitted medical record to court which psychiatrist revealed he had been referred a consulting Fayetteville. Ap- Administration Veteran’s Hospital co-counsel, was stated he did not who as pellant, acting in the record think it was relevant but wanted it anyway. think is insufficient raise the We this evidence mental stand trial. question capacity appellant’s is on the defendant The burden proving incompetence Westbrook a criminal trial. v. Ark. 580 did not abstract (1979). Additionally, any or offer discussion it which would allow report about He that he intended to consideration. did not contend below defense, gave mental disease as a no notice raise or defect by 1977). Ann. We (Repl. as Stat. 41-604 required cannot consider a first time on appeal. matter raised Kitchen 607 S.W.2d
VIII. MUELLER’S IT ERROR TO ADMIT CHIEF WAS RADIO TRANSMISSION. his radio that police
The statement the decedent over is hearsay and Britton were “acting squirrely” Evidence, Rule 801. Rules to Arkansas Uniform pursuant inadmissible, not find we do the statement though Even this how imagine We cannot been prejudicial. it to have other as one way the jury could have affected statement for which of the crime or innocence guilt to appellant’s under this error no prejudicial There was charged. been not have should the transmission though even point, *12 into evidence. admitted
IX. REQUEST DENY APPELLANT’S ERROR TO IT WAS CERTAIN SUBPOENAS. FOR to have summons issued sought Appellant John Leavenworth, persons and unnamed an inmate
Logan, of Department Cummins of the Arkansas from the Unit that Britton testify He that would alleges Logan Correction. kill that a which he intended to had list people list. the unnamed was on the He also sought for the of testifying Cummins inmates’ attendance purpose if used the officers would have been able they dogs had track Britton down He immediately. argues to the officers have enabled dog information would gave The court immediately. handlers to have located Britton was not material and that the testimony ruled that Logan’s of the inmates was also irrelevant. testimony Cummins witnesses from Leavenworth were subpoenaed Several 1977) trial. Ark. (Repl. to the Stat. Ann. brought 43-2001 § have that a defendant shall be entitled to unlimited provides However, in a witnesses murder case. subpoenaed capital this is not absolute when it out-of-state right pertains 15 Wright witnesses. v. 590 S.W.2d 267 We find that there was not a manifest abuse (1979). The not furnish court’s discretion this case. did information which indicated that these witnesses were any murder and accomplice felony material the defense Therefore, we do the court ruled on relevance. specifically not think the the action prejudiced by court.
492
X. IT WAS ERROR TO ALLOW OFFICER PRICE TO TESTIFY THAT THE APPELLANT STATED “I GIVE AT THE UP” TRIAL. insists that allowing this statement was a Arizona,
violation of rule set down in Miranda v. (1966). U.S. 436 We treated this statement under the appel- However, lant’s Point III. we hold that the statement was not a result of by the questioning police but rather was in the spontaneous nature explanation.
neither nor custody subjected to interrogation at the time of this utterance. Even heif were in custody, a spontaneous Innis, statement be would admissible. Rhode Island v. Murry U.S. See also 237(1982). XI.
IT WAS ERROR TO ADMIT EVIDENCE OF THE ROBBERY OF THE PIZZA HUT.
Appellant
that
the
argues
court erred in admitting
it
evidence about the
that
robbery of the Pizza Hut
insists
Evidence,
violates Uniform Rules of
Rule
and Rule 403.
402
provides
Rule
all
that
relevant evidence
402
is admissible
as otherwise
except
provided by statute or rule. Rule 403
provides
unfair,
that relevant evidence which is
prejudicial,
issue,
confuses the
misleads the
or is a
jury,
waste of time
However,
may be excluded.
the court admitted this evidence
pursuant
to Rule 404 (b).
provides
This rule
that evidence
may be
for
admissible
the
of
purpose
of
showing “proof
motive,
intent,
opportunity,
preparation, plan, knowledge,
or
identity,
absence of mistake or accident.” Admittedly,
there
no
is
that
proof
was
the
scene of the
of
However,
the Pizza
robbery
Hut.
evidence found in his
vehicle
to
definitely tended
show
or
that
person
persons
after
car shortly
who robbed the Pizza Hut were in appellant’s
This
robbery.
evidence was
to
ruled
be relevant in regard
to appellant
and Britton
a motive
kill
having
Chief
of
over;
fear
being
the motive
them
he pulled
when
Mueller
held
haveWe
evidence.
robbery
Hut
the Pizza
discovery
Wil-
admitted.
is properly
evidence
times that such
many
399,
Ford
(1982);
State,
Ark.
THE COURT EVIDENCE. CERTAIN of the connecting robbery
Evidence
when his automobile was searched
Pizza Hut was obtained
The car
hours after the death of Chief Mueller.
about
two
Britton.
been driven from the scene
the killing
had
the car had been stolen. At
told the officers
the officers
possession
time
the search
vehicle
in the
room or
emergency
of the
indicated
intensive care unit
Since
hospital.
no
within his
custody
that
the automobile was
longer
control,
would
he did
have a
interest which
protected
seizure of articles found
the vehicle. We
held
prevent
have
it
to search an abandoned
permissible
police
vehicle,
if
is one from which a
flees to
especially
suspect
avoid
Pickens v.
apprehension.
(1977), cert. den.
S.W.2d 212 obviously suspect might had reason vehicle reveal the contain evidence which would identity hitchhiker who had stolen the vehicle and who was allegedly *14 at The of still circumstances this case further reveal large. well that the officers have believed that might unable to information about the vehicle or consent to its give the burden recognize search. We that state has the of a warrantless search of a vehicle. An automobile justifying does the same that a enjoy prohibition not constitutional home does in all situations. Vinston v. An has become an automobile
625 S.W.2d to in cases exception the Fourth Amendment’s protection v. California, where circumstances exist. Chimel exigent that an (1969). The circumstances here were U.S. 752 unknown murder was still at in suspect large probably the We think did not act vicinity West Fork. the police in the search of the improperly the automobile under circumstances in this case. present
XIII. IT WAS ERROR TO ADMIT CERTAIN STATEMENTS INTO EVIDENCE. is argued security
It statements by guard at Veteran’s Administration were ad- Hospital improperly mitted. At the time was admitted he hospital was not under arrest nor was it known by personnel that he hospital was even a The to a crime. guard suspect in dressed a uniform similar to that of a police officer. However, he did not investigate this incident at all. made to the were statements not the result of guard were, rather, questions but guard state- voluntary ments on the part did appellant. Appellant deny that he made the statements them but wanted have excluded as having been given violation of his right remain silent. The courts have gone never so as far to exclude statements by an given accused which were made voluntarily before he was considered a suspect a criminal act. There is no simply precedent cited this been argument. We have unable to find a case wherein a voluntary statement given prior to the time that the person is suspected of a crime Therefore, violation his constitutional is no rights. there error in regard to this point.
XIV. IT WAS TO ERROR ADMIT STATEMENTS BY MADE APPELLANT. insists did not know voluntarily,
ingly and waive his intelligently at the time he rights made statements to police officers investigating killing Chief Mueller. The voluntariness of a custodial statement 388, 517 must be proven by Degler v. state. *15 warning (1974). given Appellant was a Miranda eight was some 1981.This on March about a.m. 7:15 appellant The the death Mueller. nine hours after upon physical primarily the medi- condition and his relies voluntarily receiving that he refute the idea he was to cation gave rights knowingly form the the and executed and variety taking a is true he had been It that statement. including medications, was and valium. codeine intravenously being as administered and antibiotics fluids Also, with a heart he was connected well as mouth. which think medication and devices monitor. We the subject in the case of than those was to were less Arizona, In tubes U.S. 385 Mincey, Mincey help him breathe and were inserted into his throat to through keep nose to him from his into his stomach vomiting. bladder, He had a into his and catheter inserted being undergoing feeding in to was intravenous addition drugs. refused administered several The Arizona court given in allow statement under these circumstances impeachment prosecution’s case but did chief allow purposes. Dr. Brannon testifiedat the time statement was degree taken that the was to some under the thought fully was influence of medications but that he rights capable understanding giving The and a statement. given was form executed while the statement was the intensive unit. He had been care custody. However, not in find that the arrested and was statement would custody. we be been admissible even if had permission officers first received the appellant. doctor to interview It was the doctor’s testimony appellant’s ability clearly to think was not impaired; significantly otherwise, not have he would questioning by testimony the officers. His allowed might appellant’s have affected alertness the medications ability clearly that it would not hinder his communi- but opinion or understand. It that there was cate doctor’s nothing appellant’s physical condition about or mental prevent understanding which would him from the nature of interrogation right cooperate. and his to refuse We appellant’s hold that the and waiver were know- statement voluntarily ingly, intelligently given.
XV.
OTHER ADVERSE RULINGS.
We have reviewed the record for other rulings adverse to and find none which would constitute preju- dicial error.
Therefore, the sentence of death as an accomplice murder capital will be reduced to life without and the parole judgment otherwise affirmed.
Affirmed as modified.
Hickman, J., concurs.
Adkisson, C.J., dissents. Hickman,
Darrell Justice, This is concurring. the first case which capital we have actually had to compare the of the propriety death sentence with the sentence other cases. In none of those we have approved are there any — candidates for legal mercy deserved the death they penalty without question for their crimes. particular here,
That is not the case if we abide decision in majority’s Collins v. 106 (1977), cert. denied 434 In U.S. 878
Collins, we abandoned the notion there be a must legal mistake in order to reduce a sentence in a death case. We would, own, made a pact, so to speak, that we on our make certain death penalty was not the result of passion, or excessive prejudice under the circumstances. We have to as keep pact a matter of I concur integrity. only point out that I disagree to that extent with the dissent. That defendant did not pull is not trigger always determina — tive factor it be an may or not appropriate reason to reduce the death penalty, on the circumstances. depending Adkisson,
Richard B. Justice, Chief I dissenting. concur the affirmance of this case but dissent from this reducing judgment by modification court’s imprisonment parole. punishment to life without sufficiently majority that the state has found premeditation fully proved did with Under such circumstances kill Chief Mueller. deliberation actually pulled trigger. More often does not matter who culpable someone else the more offender allows than not dirty actually do the work.
Terry
v. STATE of Arkansas
KELLEY
Steve Arnold M. Asst. Atty. respondent. Gen., for for Review denied. Per Curiam. Petition Purtle, J., grant.
would sincerely dissenting. I believeit I. Justice, Purtle, John by rights granted the Sixth of an accused is a denial of the United States to the Constitution of Amendment limit of Arkansas Constitution Art. Sec. 10 argue his case to fifteen minutes to counsel defendant’s Appeals jury. fact the Arkansas Court a before by it should be evidence this case a tie vote is decided by Certainly consti- denial this reviewed court. legal prin- be, right, I this to involves as believe tutional ciples major (6) importance our Rule 29 as envisioned grant petition. (b). I would