Gary MAUPPIN [Garry Mauppins] v. STATE of Arkansas
CR 91-107
Supreme Court of Arkansas
Opinion delivered May 4, 1992
831 S.W.2d 104
Reversed and remanded.
BROWN, J., not participating.
Winston Bryant, Att‘y Gen., by: Kent G. Holt, Asst. Att‘y Gen., for appellee.
ROBERT H. DUDLEY, Justice. Appellant was convicted of
Appellant, Gary Mauppin, and Kenneth Reed, a convicted felоn, were both in the Cross County jail the day before the crimes were committed, and appellant told Reed: “Kenny, I am going to kill me two guys. One of them was named Dolphus Sams and another guy out in a trailer house.” Early in the evening of August 10, 1985, appellant and Dolphus Sams were riding in Sams‘s truck when Sams scolded him for breaking into the house of his former girlfriend, Pat Lloyd. Appellant became angry when Sams scolded him and asked to be taken to his home in Colt. Sams took appellant home, where he remained until about 11 p.m., when he left on foot and found a car with the keys in it. He took the car, drove to his former girlfriend‘s house in Wynne, looked through a window, and saw her in bed with another man, Rick Stapler. He went to a liquor store, bought a six-pack of beer, went home, and got a .22 caliber rifle and a box of shells. He left his home and drove to the mobile home of Dolphus Sams near Fitzgerald Crossing. He opened the door with a key he had possessed for about four months and, once inside, found Dolphus Sams and Ervin Snyder asleep in separate bedrooms. He went into the living room area and, over a considerable period of time, drank the six-pack of beer plus eight or ten more cans of beer which he found in Sams‘s refrigerator. Sometime between 2:00 and 3:00 a.m., he put a shell in the chamber of the .22 and went into Sams‘s bedroom, where Sams was sleeping face down. Appellant put the .22 next to the back of Sams‘s head and shot him. The shot instantly killed Sams. He took $15.00 from Sams‘s pocket and went to Snyder‘s bedroom and shot him in the back of the head. Again, death was instantaneous. He said that the reason he shot Snyder was because he thought Snyder might have seen or heard him shoot Sams. He took $75.00 to $100.00 from the top of a chest-of-drawers that was next to Snyder‘s bed.
Appellant found the keys to Sams‘s truck and drove the truck to the home of his former girlfriend, Pat Lloyd. He hid outside her house for about an hour, cut her telephone line, and
Appellant quickly left and tried to go to an aunt‘s house but saw a number of police cars around her house so he left there and, at about 6:30 a.m., went to the home of Mary Jane and David Franz. He told them he had gone to Pat Lloyd‘s house, cut the phone line with wire cutters and, while there, shot three or four policemen, killing at least two of them. He said, before going to Pat Lloyd‘s house, he had killed Dolphus Sams and another man who was staying at Sams‘s mobile home. He said he killed Sams and Snyder in self-defense. He tried to give David Franz the wire cutters and did give him a wristwatch that came from Pat Lloyd‘s home. The Franzes left and called the police.
The police responded and ordered appellant out of the house. He did not come out. They threw tear gas into the house, and Officer Elmer St. Clair rushed inside just in time to see appellant shoot himself in the head with the .22 caliber rifle. The appellant was transported by ambulance to a Memphis hospital where he underwent brain surgery. He was subsequently returned to Wynne and was confined in the Cross County Hospital where, on August 24, 1985, thirteen days after shooting himself in the head, he gave a confession. Expended cartridge cases found at Sams‘s mobile home and expended cartridge cases found at Lloyd‘s home were determined to have been ejected from the .22 caliber rifle which Officer St. Clair recovered from the appellant. The watch that appellant gave David Franz was determined to be Rick
Appellant makes a number of arguments involving the trial court‘s orders directing the State Hospital to evaluate his mental condition. In one of the arguments he contends that, under the applicable statutes, the circuit court lost jurisdiction to try him, and therefore, his convictions are void. The factual predicate to his argument is as follows. On September 13, 1985, the circuit court ordered the State Hospital to evaluate the appellant to determine (1) his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law and (2) whether appellant was aware of the nature of the charges and capable of cooperating effectively with his attorney in the preparation of his defense. On December 10, 1985, Dr. Roy Ragsdill, the Director of Forensic Psychiatry Services of the State Hospital, responded that appellant was unaware of the nature of the chаrges and the proceedings against him and that he was unable to cooperate with his attorney. On the basis of that report, and the statute then in effect,
It is my opinion that Mr. Mauppin is still suffering from the mental defect, Dementia Secondary to Trauma to the head with residual aphasia, for which he was found not competent to stand trial for first degree murder in that he still can marginally communicate on any complex thought process and express himself in a limited way using short simple sentences only. His comprehensiоn of what is said to him appears to be even more limited than his expressing himself.
On February 20, 1987, Dr. Ragsdill again gave the trial court a letter of evaluation. In it, Dr. Ragsdill wrote:
In my opinion, he continues to be unable to appreciate the
charges and proceedings against him in any rational way and unable to assist effectively in the preparation of his own defense due to the neurological residuals of his self-inflicted head wound. He continues to have severe difficulties in comprehending language and in expressing his own thoughts. In my opinion, it is not likely that he is going to improve sufficiently ever to be able to be considered competent to stand trial.
Although the record does not give us the exact date, it was apparently just after this letter that appellant was returned to the Department of Correction as a parole violator to serve thе remainder of a prior sentence. On January 25, 1988, while appellant was still in prison, the State asked for a re-evaluation. The trial court immediately ordered another evaluation. For some reason unknown to us, but agreed by the parties not to be the fault of either the State or the appellant, appellant was not taken to the State Hospital for the evaluation. Nine months later, on October 21, 1988, the trial court ordered the Sheriff of Cross County to go to the Department of Correction, get appellant, and take him to the State Hospital for a re-evaluation. On December 13, 1988, David A. Pritchard, a staff psychologist, not a psychiatrist as required by
Diagnosis: Axis I - Dementia secondary to gunshоt wound to head, Moderate; Axis II - Deferred; Axis III - Bilateral, mild to profound, sensorineural hearing loss, secondary to gunshot wound to head.
The defendant appears to be unaware of the nature of the charges and the proceedings taken against him. He is not capable of cooperating effectively with an attorney in the preparation of his defense.
At the time of the commission of the alleged offense, the defendant did not lack the capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.
The report did not state whether the appellant‘s condition was of a nature that would preclude fitness to proceed at some future date or whether the appellant presеnted a danger to himself or others.
The above patient has now improved from his previously diagnosed psychiatric illness and is now fit to proceed. He is ready to return to Court for disposition. He is able to understand the charges against him and is able to assist his attorney in his defense.
He is no longer in need of inpatient psychiatric care. However, at the time of the commission of the alleged offense, the defendant did not lack the capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.
The patient has neurosensory deficit secondary to the gunshot wound to his head sustained in 1985. Close attention should be given to talking to him face to face and with no surrounding noise.
The trial court ordered the case to go to trial on October 1, 1990.
Appellant contends that under the statutes applicable to the above set of facts, the circuit court lost jurisdiction to try him. The argument is without merit. The governing statutes are now codified as
Here, the accused was never acquitted by the circuit court, and the circuit court never lost jurisdiction to the probate court. Instead, the issue concerned the accused‘s competency at the time of trial. From 1985 to 1990, the accused was determined to be unable to cooperate effectivеly with his attorney in the preparation of his defense. Section 5-2-302 of the Arkansas Code Annotated of 1987 provides that no person who lacks the capacity to understand the proceedings against him or to assist effectively in his defense shall be tried, convicted, or sentenced so long as such incapacity endures. Section 5-2-310 provides that if the circuit court determines that the accused lacks fitness to proceed, the proceedings against him shall be suspended. Thus, the circuit court never lost jurisdiction.
Appellant next argues that the trial court erred in ordering his re-evaluation for a number of reasons. First, he argues that he was in the State Hospital from December 23, 1985, to February 20, 1987, a period of thirteen months, which is longer than the one-year period that a circuit court can commit a person who lacks fitness to proceed. See
Appellant also argues that the trial court erred in sending him back to the State Hospital for re-evaluation because the statutes do not mention re-evaluation. We also reject this argument for two reasons. First, as set out above, we will not void a conviction for a prior illegal detention. Second, the circuit judge interpreted the applicable statute in a common sense manner. The statute provides, in part: “When the court, on its own motion or upon application of the Director of the Department of Human Services, the prosecuting attorney, or the defendant, determines, after a hearing if one is requested, that the defendant has regained fitness to proceed, the criminal proceeding shall be resumed.”
In a somewhat related argument appellant argues that the trial court erred in refusing to rule that he would never recover sufficiently to stand trial. The underlying facts are as follows. On January 23, 1989, appellant filed a petition asking that the charges against him be dismissed because he would never be competent to stand trial. He primarily based his petition on the report signed by David Pritchard, a staff psychologist. The trial court denied the petition stating that Dr. Pritchard‘s report “is not in compliаnce with
Appellant argues that the trial court erred in refusing to
The first assignment of trial error that we consider involves the trial court‘s denial of appellant‘s motion to suppress his confession. Appellant moved to suppress the confеssion he gave while in custody on the ground that he did not knowingly and intelligently waive his Fifth, Sixth, and Fourteenth Amendment rights. The trial court heard evidence on the motion and refused to suppress the statement. A majority of this court, consisting of the Chief Justice and Justices Dudley, Newbern, and Brown agree that ruling was in error. The Supreme Court of the United States, in a series of cases, has set out the applicable principles. In Miranda v. Arizona, 384 U.S. 436, 467 (1966), the Court recognized that custodial interrogation inherently produces “compelling pressures which work to undermine the individual‘s will to resist and to compel him to speak where he would not otherwise do so freely.” To neutralize this inherent compulsion and give true meaning to the Fifth Amendment privilege against self-incrimination, the Court in Miranda imposed a clear standard for police to follow in dealing with an acсused. Before questioning an accused, the police must fully apprise the suspect of the State‘s intention to use his statements to secure a conviction and must inform him of his rights to remain silent and to have counsel, if he desires. Id. at 468-70. A waiver of these rights is valid only if it is made “voluntarily, knowingly and intelligently.” Id. at 444. An incriminating statement obtained on the basis of a waiver must be excluded unless the State establishes to the satisfaction of the trial court by a preponderance of the evidence that the waiver was voluntarily, knowingly, and intelligently given. Colorado v. Connelly, 479 U.S. 157, 168 (1986).
The inquiry into waiver has two distinct dimensions. Colorado v. Spring, 479 U.S. 564 (1987); Moran v. Burbine, 475 U.S. 412 (1986). “First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or decep-
“Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” Moran at 421. In Colorado v. Spring, 479 U.S. 564, 574 (1987), the Court wrote:
The Constitution does not require that a criminal suspect know and understand every possible consequence of a waiver of the Fifth Amendment privilege. Moran v. Burbine, supra, at 422; Oregon v. Elstad, supra, at 316-317. The Fifth Amendment‘s guarantee is both simpler and more fundamental: A defendant may not be compelled to be a witness against himself in any respect. The Miranda warnings protect this privilege by ensuring that a suspect knows that he may choose not to talk to law enforcement officers, to talk only with counsel present, or to discontinue talking at any time. The Miranda warnings ensure that a waivеr of these rights is knowing and intelligent by requiring that the suspect be fully advised of this constitutional privilege, including the critical advice that whatever he chooses to say may be used as evidence against him.
“Only if the ‘totality of the circumstances surrounding the interrogation’ reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.” Moran at 421 (citing Fare v. Michael C., 442 U.S. 707, 725 (1979)). The “totality of the circumstances” appellate review mandates inquiry into an evaluation of “age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights.” Fare at 725. Thus, a court must look at the totality of the circumstances to see if the Stаte proved that a defendant had the requisite level of comprehension to waive his Fifth and Sixth Amendment rights.
At the suppression hearing, in order to prove by a preponderance of the evidence that the waiver was knowingly and intelligently given, the State called only two witnesses, Buddy Early, the Wynne policeman who was the guard outside the appellant‘s hospital room on the day he gave the confession, and Dave Parkman, the investigator for the Cross County Sheriff‘s Office who took the confession. Policeman Early was asked if the appellant was given a Miranda warning, and he responded that investigator Parkman gave the appellant a written statement advising him of his rights and that appellant signed the statement and initialed each of the six questions оn the statement. He was not asked if appellant was allowed to read the statement. He was not asked if appellant was already familiar with his rights. He was not asked if the appellant was allowed sufficient time to read the warning form. He was not asked the interval of time that elapsed between his entry into appellant‘s hospital room and when appellant signed the form. He was not asked about appellant‘s age, experience, education, background, intelligence, whether he was under sedation for pain at the time, whether he had the requisite capacity to understand the warnings given him, whether he understood his Fifth Amendment rights, or whether he understood the consequences of waiving those rights. He was asked numerous questions going to the issue of voluntariness, but that is not the issue. In summary, he was not asked questions to prove that the appellant possessed the requisite level of comprehension to waive his constitutional rights.
While the State did not put on evidence going to the levеl of appellant‘s comprehension, appellant put in evidence the reports from the State Hospital which went directly to the issue. On December 10, 1985, just a little over three months after the confession, Dr. Roy Ragsdill found the appellant was unaware of the nature of the charges and proceedings against him and unable to cooperate with his attorneys. The other reports, quoted in an earlier part of this opinion, indicate that this mental condition continued for almost four years. His “aftercare plan” in 1989 states, “[P]atient does have a hearing loss and wears a hearing aid. He can understand conversation if spoken to slowly and directly face-to-face. Patient will require medication management and supportive therapy while incarcerаted pending disposition of his charges.”
The waiver of rights form initialed by the appellant and signed by him is also significant. Appellant‘s initials on the form are printed with an unsteady hand, and the signature is also
The totality of the circumstances reflects that the accused shot himself in the head on August 11, 1985. He was thereafter taken to a hospital in Memphis, had brain surgery, and was returned to the Cross County Hospital where, on August 24, 1985, just thirteen dаys after the gunshot wound and an unknown number of days after surgery, he gave the confession. The record does not reflect whether appellant was under medication for pain, nor does it reflect his level of intelligence, experience, or comprehension of his constitutional rights. The only direct evidence relating to his level of comprehension is the evidence from the State Hospital which indicated that appellant was unaware of the nature of the charges and proceedings against him. If he was unaware of the nature of the charges and proceedings, it would be most difficult for him to appreciate and understand his rights and to knowingly and intelligently waive them. Thus, upon our review of the totality of the circumstances, we hold that the State did not show that the waivеr was made with a full awareness of both the nature of the rights being abandoned and the consequences of the decision to abandon them. Accordingly, we reverse on this point.
Appellant asked the trial court to give AMI Criminal 4005.1, the instruction that outlines the defense of voluntary intoxication. The trial court refused to give the instruction, and that ruling was in error.
At common law, evidence of voluntary intoxication could be admitted to show the accused was incapable of forming the specific intent to commit a crime. In 1976, in the then new criminal code, the General Assembly provided that “self-induced intoxication is an affirmative defense to a prosecution if it negates the existence of a purposeful or knowing mental state.”
The crimes in this case were committed on August 11, 1985, when Varnedare was still the law. At the time of these crimes, our substantive law recognized the common law defense of voluntary intoxication to specific intent crimes. The ruling of the trial court applied White to retroactively abolish the justification defense, and in so doing, eliminated a defense that was available at the time of the offense. This was in error. The same conduct that would have gone unpunished under the defense made available in Varnadere, would result in a conviction after White. An accused is entitled to any defense that existed at the time of the commission of the crime, even if that defense was based only on a court‘s erroneous interpretation of the law. James v. United States, 366 U.S. 213 (1960).
Such a holding is based on the judicial corollary of the prohibition of ex post facto laws. “Ex post facto” literally means a law passed after the fact. That is, after the occurrence of the fact, or the crime. The constitutional prohibition on ex post facto laws is a limitation upon the powers of the legislature and does not of its own force apply to the judicial branch. Howevеr, the principle on which the clause is based, the notion that persons have a right to fair warning of that conduct which will give rise to criminal penalties, is fundamental to our concept of constitutional liberty, and as such, is protected against judicial action by the due process clause of the Fifth Amendment. Marks v. United States, 430 U.S. 188 (1977). Accordingly, the Supreme Court held that an unforeseen judicial enlargement of a criminal statute, applied retrospectively, operates precisely like an ex post facto law that is prohibited by Article I, § 10 of the Constitution of the United States, and it follows that such an interpretation is barred by the due process clause of the Fourteenth Amendment from achieving
Appellant makes numerous other assignments of trial error, but none have merit. We address only those which might arise upon retrial. Appellant argues that the death penalty is cruel and unusual punishment in violation of the Eighth Amendment. This issue has been decided adversely to appellant‘s position. Gregg v. Georgia, 428 U.S. 153 (1976); Pickens v. State, 292 Ark. 362, 730 S.W.2d 230 (1987), cert. denied, 484 U.S. 917 (1987). He argues that the Arkansas death penalty statute,
Additionally, appellant argues the trial court abused its discretion in denying his motion for a change of venue. We have repeatedly emphasized the significance of the trial court‘s observation of the witnesses on these motions, and we cannot say the trial court abused its discretion in this case. See Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). He argues that the trial court erred in not ordering funds for a private psychiatrist. We have rejected this argument. See Branscomb v. State, 299 Ark. 482, 774 S.W.2d 426 (1989). Finally, he argues that the trial court erred in allowing a number of exhibits into evidence because of an alleged break in the chain of custody. We cannot say the trial court erred in its ruling. See Neal v. State, 298 Ark. 565, 769 S.W.2d 414 (1989). Appellant makes other
Appellant has not complied with the requirement of Rule 11 (f) of the Rules of the Supreme Court and Court of Appeals by abstracting all objections decided adversely to him in this death sentence case. The Attorney General stated that he did so but, in fact, he did not. Despite these failures to comply with the rule, we have chosen not to order that the case be rebriefed because that would cause another delay in a case that is already seven years old.
Reversed and remanded for a new trial.
HAYS, GLAZE, and CORBIN, JJ., dissent.
TOM GLAZE, Justice, dissenting in part. I strongly disagree with the majority decision that Gary Mauppin did not understand his rights and knowingly and intelligently waive them. Basically, the majority court must disbelieve the testimony of Officers Dave Parkman and Buddy Early to reach that conclusion, and such a call on credibility of witnesses is not this court‘s function. These officers’ testimony was replete with how Mauppin voluntarily and knowingly responded to questions reflecting the details of how he chillingly killed two men during their sleep.
The officers related that Mauppin could not talk, but he answered questions by writing notes, nodding his head, using his hands and demonstrating how the victims were positioned in their beds when he shot them. The officers employed crime scene diagrams which Mauppin used to show where the victims and certain items were located in the bedrooms. Parkman testified on this point as follows:
His [Mauppin‘s] responses were accurate. The nod of the head, agree or disagree, corrections in some things that we asked him, the physical facts that backed up what Mr. Mauppin responded to, which were accurate. I dоn‘t believe we found one place on our diagrams where Mr. Mauppin was inaccurate. What he pointed out was always accurate as to what the questions were toward him and that‘s why I say he understood very well what we were talking about.
Yes, sir. I remember on two different occasions, I remember recalling an instance where Mr. Mauppin was arrested and where he had went to that morning after these shootings and there was a table beside a bed in the bedroom where Mr. Mauppin had been laying. There was some cigarettes and a lighter on that table. I asked Mr. Mauppin about a pack of cigarettes and a lighter on that table and he сorrected me as two packs of cigarettes and we did verify the fact that there were two packs of cigarettes on that table instead of one. I recall that incident and then he corrected me on a time element. I don‘t recall exactly where it was. I believe it was the time he spent in Dolphus Sams trailer. I believe there was a correction there. We thought the time was shorter as to the time he had spent in the trailer and he corrected us in that. I believe that‘s the time element I‘m talking about.
Officer Early testified that he was guarding Mauppin in the hospital when Mauppin wrote a note requesting Parkman‘s presence. Early was in Mauppin‘s room when Parkman spoke with Mauppin. Mauppin was sitting on the corner of his hospital bed. Early confirmed that Mauppin understood his rights and initialed each one. The majority refers to Mauppin‘s unsteady hand when initialing the rights form, but Mauppin, who was left-handed, used his right hand in initialing the form. On this point, the majority opinion refers to letters and a card which were later written in a steady and fluid penmanship. They were letters written to family members. One letter, in fact, was written only two months after his confession and during the time he purportedly was unaware of the nature of the charges against him. Yet, excerpts from that letter, written in very good penmanship, and others were read and summarized by the prosecutor, without objection, as follows:
“August 11, 1985 - I shot myself. There is a hole in my head about two inches by two inches. The doc told me wouldn‘t live long. I have a twelve year old brain and can‘t talk and can‘t remember nothing. Don‘t know why at all.
August 26, 1985 - In prison diagnostic unit. Stayеd there 37 days. Man give me test and told me I had a nine to twelve year old brain. Went to Cummins October 1 and I was in Barracks 19. Had job in laundry. Worked one day and then locked me down in 16 building.” It goes on to tell about birthdays. It goes on talking about how many letters he received from each of his children. It says here in this same letter in November of 1985 - “Diane one letter, Mom and Dad five to seven letters. They don‘t send me no money and it rough to get by on. I been there three months. Nobody ever show up. The reason Pat Lloyd cause all of it. That bitch.” So, he goes on to show hostility towards individuals. He asks questions of how members of his family are. He wrote a letter on him birthday, July 4, 1986, that‘s twenty-seven pages long. It‘s been introduced into evidence here. It‘s asking his girls if they want him to build things like this Exhibit No. 3 that‘s already been introduced and for them to write down what they want on it. He draws pictures one every page and asks them how they like his artwork. He goes into what he does during the day from 9:30 to 10:00, it tells what he did then. That he laid down, that he wrote, that he went to the visitors hours. He watched Price is Right. He goes into great detail of everything he‘s done.
Besides the foregoing passages, other letters exhibiting Mauppin‘s reasoning powers were displayed to the trial judge. Aside from grammatical errors, Mauppin‘s correspondence reflects a man with communicative skills, and the letters support Officer Parkman‘s and Early‘s assertion that Mauppin had the capability to intelligently and knowingly waive his rights before having given his confession.
The majority points out that the trial court failed to make a finding on the issue of a knowing and intelligent waiver, but both the prosecutor and Mauppin‘s counsel discussed these terms repeatedly when arguing Mauppin‘s motion to suppress.1 Appellant does not contend on appeal that the trial court failed to
The prosecutor contended Mauppin feigned an inability to understand his rights, and produced convincing evidence to support his contention. At most, conflicting evidence was presented bearing on this issue, and I believe the majority court is wrong in holding Mauppin did not have the knowledge and intelligence to waive his rights. Again, in doing so, the majority not only discredits entirely the officers’ testimony, but also it ignores Mauppin‘s own penmanship which, in my view, conclusively shows he had the ability to communicate very well.
I would not reverse this case on the voluntary and knowing issue relied upon by the majority court. Therefore, I dissent.
HAYS and CORBIN, JJ., join this dissent.