*1 with this opinion. of an order consistent entry of Arkansas STATE OWENS Dwight CR 88-156 Court Arkansas
Supreme September delivered Opinion *3 Smith, Stroud, McClerkin, Nutter, & W. David Dunn by: Carter, for appellant. Eberhard, Clark, Gen., Asst. David B. Att’y Att’y
Steve by: Gen., for appellee. Glaze, Justice. was convicted capital
Tom Appellant death “Buddy” Appellant murder for the of L.D. Perkison. when by Charles Eason robbed accompanied Ray Arkansas, Buckner, gas station in Lafayette County, Perkison during robbery, resulting Eason stabbed repeatedly in his death. and was sentenced to Appellant separately tried life In this he raises six reversal. imprisonment. appeal, points that, first based an alleged contends upon 8.1, violation of Rule the trial erred in denying A.R.Cr.P. court his motion suppress his statement. Rule 8.1 that an provides arrested who is not released a citation lawful person manner be shall taken before officer unneces judicial a without sary This court that Rule delay. has stated 8.1 is not mandatory, and that discretionary, while a violation does not call for dismissal it charges, does call for a of the in-custodial suppression statement. Cook v. S.W.2d 820 (1981). Our review the law and record reveals no of Rule violation 8.1.
In Duncan v. (1987), the court adopted three-part test to determine when a statement should be excluded 8.1: (1) violation of Rule upon *4 delay must be (2) the evidence must unnecessary; prejudicial; be (3) and the evidence must be related to the reasonably delay. Duncan, granted we the defendant’s motion to his suppress incriminating statement because the law prosecutor and enforce ment officers for held deliberately (and reason) no Duncan 5, 1985, from incommunicado about noon on March Tuesday, until late the following night three and one-half Friday day —a period. Duncan initially gave only statements until exculpatory he facts, confessed late on finally Friday. On those we concluded the state violated all of the in three-part test the court adopted Duncan.
Here, while was detained a two one-half appellant day period before his giving a three and inculpatory statement and officer, one-half before day period taken before a being judicial those are the only similarities between the situation before us now
77 hand, cause at the Duncan. In the facts in and the a.m. on at 2:00 when was arrested in bar intoxicated he 27, the The record reflects that June 1987. Saturday, that he or an attorney never from his friends kept family, viz., occasions, when he was been mirandized on two separate had on County Lewisville in jail Lafayette first incarcerated at the following Monday 27 on the June and at 10:00 p.m. he had been taken Jail in where County Magnolia, Columbia on rights waived his It was when he safekeeping. voluntarily his offered his confession. Before that the Monday interrogated; had never been statement on Monday, appellant record, had he a statement of nature. From given nor for appel- had been scheduled arraignment hearing apparently on Court to be held lant before the Circuit Lafayette County the appellant June 197—which was the after Tuesday, day was still incarcer- volunteered his statement to officers while he ated in Columbia on June 29.1 County Monday, that, based the facts
We are unable to say upon here, the three and wrong ruling the trial court was presented one-half between arrest day period delay First, arraignment was reasonable. was arrested and held Ark. over a weekend In Brown v. period. we held Rule 8.1 was not violated when a defendant was arrested on a through late and held Friday weekend before he was to be taken to a on the magistrate able noted, here following Monday morning. As previously was arrested he could and the earliest early Saturday morning Furthermore, have been was on arraigned following Monday. Duncan, unlike in the record here was not reflects members, held incommunicado and denied family access to friends or an attorney.
Although given warnings was first his Miranda arrest, Lewisville not to after his the officersdecided immediately of his interrogate statement him because accept any given by intoxicated state. For officers own safekeeping, *5 The officers testified of this scheduled had not advised arraignment hearing giving rights when he was read and his before his statement waived Monday, on June 1987. opted take to the jail Columbia County Magnolia where he throughout the balance of the weekend. The stayed following the officers Monday returned to to mirandize Magnolia time, the once again. At this volunteered and rendered his incriminating statement. during Sometime time these events and taking circumstances were place, Judge had also Purifoy been contacted so as to arrange arraignment hearing be held in Lafayette County robbery —where homicidal act occurred. In view of the circumstances and events arrest, surrounding appellant’s we have no hesitancy holding that the time between his arrest and arraignment necessary and that the confession he did not gave result from undue delay caused state. next
Appellant’s arguments two concern whether the trial judge erred when he failed to sequester and when he jury denied appellant’s motion for new trial because of jury miscon- duct. His claim regarding misconduct juror, concerns a Dehan, who, claims, Mary had improperly discussed case appellant’s with others after she was selected but to the prior actual In trial. this arguing Dehan, point, appellant asserts that when others, discussing case appellant’s with revealed her previ- concealed ously as to opinion guilt. We appellant’s disagree.
Concerning Dehan, claim as he presented post-trial testimony by Wewer who stated Shirley that sometime after Dehan was selected as a juror to trial that prior Dehan appeared there, beauty shop, while Dehan expressed that she was surprised at lack of emotion and that she felt “[appellant] involved with the crime.” Even if we were to accept appellant’s contention that Dehan’s remarks reflected her pre-conceived opinion as to appellant’s guilt, we note that never raised this trial, issue until his motion for new which was filed long after trial. In Hendrix v.
768 S.W.2d we pointed out that a claim of jury misconduct raised for the first time in a motion for a new trial must be accompanied an affirmative showing the defense was unaware of the comments until after the trial. To allow otherwise defendant, would permit privy asserted jury trial, misconduct during the to await the outcome of the trial before investigating pursuing such allegations further. case, present we are unaware of when the first became *6 to Dehan. attributed now of the remarks aware affirmative an to make failure of Regardless with misconduct, disagree appel we simply showing juror as No Dehan was prejudicial. attributed to the comment lant that “involved” not he was one, ever claimed including appellant, was a contrary, appellant crime. To the with the some manner trial issue at major The robbery. in the with Eason participant any way or in committed actually became whether the aided in commanded, induced, or solicited, counseled procured, dire, her sum, Dehan, indicated on voir death. In or guilt mind as to appellant’s an willingness keep open evidence, we do not heard the innocence until after she the comments was dispelled by believe her to do so willingness were actually those comments assuming to her —even attributed alleges. made at the time the appellant comments on the rely also attempts Appellant judge of the trial being example why attributed to Dehan as course, decision of Of jury. should have sequestered discretion of the whether or not is left to the jury to sequester in the absence of court and that decision will not be disturbed trial a clear of Henderson showing prejudice. fails to show Appellant simply in this
prejudice cause. have rights argues next that his equal protection to strike challenges been violated the state’s use of peremptory case, the victim black In this is a black male and jurors. meritless. was a white find contention male. We In Ward v. selection
we stated that case of discrimination in the facie prima of (1) showing totality of could be made that the jurors by: gives discriminatory purpose, relevant facts rise to an inference of (2) exclusion total or demonstrating seriously disproportionate strikes, venires, (3) showing blacks from jury pattern voir during questions, attorney or statements a by prosecuting dire. Ward, in this case the jury
Unlike the all-white jurors the two black included two black We note that when jurors. still the prosecutor were and seated to serve on the accepted jury, had two The here peremptory challenges employ. prosecutor also used two black challenges jurors to strike peremptory while six jurors. he used to excuse white the two challenging jurors, black one prosecutor juror struck because the had been dozing and the other was because view regarding excused of his *7 the death The this short of penalty. record in case falls far any showing of discrimination. reversal, his fifth the point appellant appeals
from the trial court’s motion denial of his for a directed verdict. This court treats a motion for a directed verdict a challenge as to the of the evidence. Boren v. Ark. sufficiency 761 S.W.2d 885 On of review a denial of a motion for a verdict, directed the court appellate considers the evidence in the light most favorable to the and appellee considers testimony the support of verdict. Id. This court’s is to responsibility determine whether the verdict is supported substantial evi dence, or whether the jury could have reached its conclusion having without to resort to Id. or speculation conjecture.
The applicable part murder statute capital provides a person if: capital commits murder or
acting alone with
(1)
one
more
he
persons,
commits or
,
commit.
.
attempts
.
. . .
in the
robbery
and
course
of and in furtherance of the
or in immediate
felony,
flight
therefrom, he or causes
death of
accomplice
any
person under circumstances
indiffer-
manifesting extreme
life;
ence
the value
of human
added.)
(Emphasis
Ark. Code Ann. 5-10-101
A defendant is
(a)(1) (Supp. 1987).
§
provided an affirmative
under
defense
this section where the
if,
defendant was not the only
did not
participant
“the defendant
commit the
solicit, command, induce,
homicidal act or
way
counsel,
procure,
or aid in its commission.”
Code Ann. 5-
Ark.
§
10-101(b) (Supp. 1987). The
defendant has the burden
prove
this
evidence,
defense by
affirmative
of
preponderance
but
that a burden does not arise
until
state has met its burden of
proof as
to the elements
of the offense. Fairchild
Ark.
Appellant, stated that immediately prior robbing business, Eason had appellant showed time, discussed kitchen knife. At that both Eason and the office. Witnesses identified robbing Perkison’s store post in the vicinity Eason and as two men saw statement, killed. In his Perkison’s store at the time Perkison was robbing Eason in the decedent’s joined admitted he Perkison, store, and while Eason stabbed repeatedly cash After register. took from the business’s money store, both their clothes. changed Eason robbed the admitted he his shirt and off his shoes changed wiped pants and then on another of tennis shoes. Evidence put presented pair leg at trial reflected that human blood was found on the cuff and of blue owned The state also jeans firmly proved appellant. that Mr. Perkison’s the wounds he sustained death resulted from when Eason and robbed the store.
Although the does not seriously challenge sufficiency concerning the evidence or Perkison’s robbery it, death from he resulting still contends that his affirmative *8 defense to the murder because the capital charge shown evidence, confession, state’s including reflects that solicit, did not commit the homicidal or in appellant any way act command, induce, counsel or aid in its commission. We procure, note, at this that the offered no evidence of his point, appellant own to his affirmative defense. prove
We have held that a defendant is required prove evidence, an affirmative defense a of the and by preponderance the as to question which the evidence is way preponderates State, primarily a jury question. Campbell 265 Ark. (1979). An affirmative defense is established as a matter of law if only there are no factual to be by issues resolved the trier of fact. Leeper v.
Appellant attempts rely on his confession and the testi- mony given the state’s witnesses when that he arguing did sufficiently proved he not commit or in the act of participate killing Perkison. He credible argues weight that the great evidence shows that he did not or in way stab Perkison aid his murder. We cannot agree.
First, decide, we note that is for the credibility jury see McCaslin v. S.W.2d 306 while one reasonable inference can be appellant asserts death, made we solely which reflects Eason caused Perkison’s least, very believe the at the shows the counseled proof, stating, we note that the aided in the decedent. In so killing definition of counsel includes the of a urging adoption The Random course plan. of action or the recommendation of a House Dictionary (2nd ed. 1987). English Language mentioned, As and Eason (by previously statement) own to rob a store in Buckner and planned had discussed store Perkison’s and the office. While post going Buckner, Eason and it can showed knife to reasona appellant, be inferred bly knew a lethal would be weapon employed robberies. dissuaded planned actually Appellant Eason from one store in Buckner because a robbing lady baby Instead, were who present. they decided to rob Perkison was alone facts, in his store. Based these upon could infer reasonably or counseled with Eason to that the appellant planned participate in a which knew use robbery would involve of a lethal weapon. even redirected the from robbery another store to Perkison’s store because Perkison was alone at the time. Appellant’s confession revealed no that he suggestion was sur Perkison, Eason prised stabbed instead repeatedly but merely consummated the out of the robbery by taking money fact, cash register. In shows that he appellant’s statement standing Eason when he first the knife out in the store pulled when Perkison’s back was turned began stabbing and when Eason alone, decedent. Considering this a jury evidence could have concluded counseled and aided death.
Finally, the trial judge contends that the erred in *9 allowing into evidence one of the crime scene and four photograph autopsy of the decedent’s wounds. The trial photographs knife judge excluded seventeen crime scene and autopsy photographs offered by was, the state. gruesome As as the of this man death photograph the crime scene which was introduced is mild. very While one blood, can tell is a there lot of is a small photograph shot which is not very colorful or close so as to very reveal Polaroid details.
The is in admissibility the sound photographs discretion judge trial and will set aside not be absent an Henderson abuse of that discretion. can be Even inflammatory photographs to the issue or are useful light
admitted if shed some on Fairchild, 380. 681 S.W.2d jury. case, admitted
In the all of the photographs present different set of shows a were relevant. Each of the autopsy photos wounds, mentioned, one photograph stab and as previously We hold the trial court was on crime scene was admitted. correct in admitting these photographs. R. 11 we received (f), accordance with Ark. Ct. have Sup.
the record for all to the objections decided adversely above, and have found no reversible error. For the reasons stated we affirm. J., concurs.
Purtle, Justice, Purtle, concurring. I concur in the result John I. reached by majority because I find the conduct of improper the juror not to be prejudicial under the circumstances. My however, purpose writing, is to Iwhat consider to be a clarify misleading statement.
The majority opinion asserts: note that appellant “[W]e never raised this trial, issue until his motion for a new which was filed long after the it, trial.” That statement and the one following might lead one to believe that an objection the misconduct of a juror must be at or lodged before the time for a motion for a filing new trial. case,
In the present there was no the appellant dispute did not know of the alleged misconduct of a filing until after the motion for a new trial. There is wrong with absolutely nothing filing a motion to set aside on the basis of conduct after motion for made, a new trial has been this provided information was not known at the time of the motion.