Sanders v. State

bulldozer, land, Weldon the owner of the clearing the his During directions, he that, McDowell, following realized line, he so asked appellant property to cross going appellees’ was the exact line location. When concerning consult appellees told with appellees, appellees discussed the matter appellant on and he was over “getting [appellees’] property,” appellant so a could be survey wait or three days him if he would two asked declined, he saying questions. to resolve any taken clearing going and that he of the on money surveys all spent obtained an earlier had Although appellant apparently spend. instructing referred to it before he never this survey property, work. with the McDowell to continue sum, had informed McDowell appel In appellees that, the brush and trees as continued clear lant if McDowell directed, working appellees’ would be McDowell warnings, with this information appel Confronted property. On these McDowell the work as instructed. complete lant still had facts, court, had damages, found the trebling the trial line before of the claim fully property appellees been apprised incurred, he to have yet the damages proceeded We anyway. cross the line to clear property bulldozer operator trial erroneous. say clearly are unable to court We affirm. v. STATE of Arkansas SANDERS 805 S.W.2d

CR 90-223 Court Arkansas Supreme delivered March Opinion [Rehearing April denied 1991.*] Glaze, Brown, rehearing. * Hays, grant JJ. would Allen, for L. J. Lemons and Arthur Phyllis appellant. III, Frank J. Wills B. Stallcup, Att’y Gen., Asst. by: Mary Gen., for Att’y appellee. Sanders, Corbin, L. Justice. Appellant,

Donald by County jury murder a Hot Spring was convicted capital sentencing him judgment from the appeals March 1990. He in Arkansas of Correction. Department life the to imprisonment was not as for reversal: there grounds He raises five issues to a underlying felony support evidence of the sufficient conviction; in his motion for denying the trial court erred murder continuance, state- in-custody in his motion to denying suppress ments, as to to admit an the refusing testimony in exception rule, to a tendered instruction. refusing jury and in hearsay arguments We find statements and regarding in-custody meritorious, reverse the jury judg- the tendered instruction We other issues ment conviction. discuss asserted to to error if the case is retried. necessary the extent avoid only

I. IN THAT THERE THE TRIAL COURT ERRED OF EVIDENCE ROBBERY WAS INSUFFICIENT TO A THE FELONY SUPPORT AS UNDERLYING CONVICTION. CAPITAL MURDER did at the not move for directed verdict Appellant (b) P. a failure of the case. Ark. R. Crim. 36.21 provides close of the move for a directed verdict at both the conclusion to case, of the and at the close by evidence presented prosecution to the any sufficiency constitutes a waiver question pertaining failing to jury evidence to verdict. support Appellant, case, waived any move for directed verdict at close See of the evidence. also challenge sufficiency Hayes

II. THE TRIAL COURT ERRED WHEN IT RE- TO FUSED ADMIT INTO EVIDENCE PROFFERED TESTIMONY OF KENNETH TRAYLOR AS AN EXCEPTION TO THE HEARSAY RULE. evidence, sought admit into as an exception

the hearsay rule under Rule 804(b)(3), statements his co- defendant, Byron made to Hopes, allegedly Kenneth Traylor in sometime 1989. trial August judge in chambers heard of Mr. testimony Traylor, which was to the effect that Mr. Hopes sometime August around of 1989 him about approached robbing the same bootlegging that was the operation target of the robbery involved in this murder trial. The court also heard the testimony chambers; Hopes Mr. Hopes, exercising his fifth amendment privileges, testified for the of the only purpose for hearing the limited only question of whether or not he ever had a conversation with Mr. Traylor concerning robbing the deceased. Mr. Hopes denied having ever had such a conversation Traylor. Mr. The court ruled that portion Traylor’s Mr. inadmissible, testimony stating 1, that “Number the witness is unavailable; 2, not unavailable, Number if the. witness were the testimony offered Kenneth by is not Traylor reliable sufficiently to allow it as an to the rule.” exception hearsay

The relevant portion of Ark. R. Evid. 804(b) provides the is not following excluded the if by hearsay rule the declarant is unavailable as a witness:

(3) Statement A against interest. statement which at the time of making its so far to the contrary interest, declarant’s or or so far pecuniary proprietary tended subject to him civil to or criminal . .that liability. a reasonable man in position his would not have made the he statement unless believed it to be true. A statement tending to the to expose declarant criminal liability is not admissible unless the accused exculpate

offered indicate the trustwor- clearly circumstances corroborating statement. thiness of Byron Hopes, 1989 statement alleged August

For the testimony of Kenneth declarant, through to be admissible unavailable; 2) is 1) the declarant shown that: it must be Traylor to subject its “so far tended making at the time of statement in his position a reasonable person criminal that liability him it to be the statement unless he believed not have made would true; clearly circumstances indicate 3) corroborating Riley, States v. of the statement. See United trustworthiness v. 777S.W.2d Ark. (1981); F.2d 1377 Williford discretion, will this not an abuse court (1989). Absent statement on the ruling admissibility trial court’s reverse 599 S.W.2d interest. Welch against penal denied, 996 (1980). cert. 449 U.S. ruling its on this matter said: making The court when witness, as a that if Mr. unavailable Hopes [E]ven be for the reason that that would not admissible testimony time; is it not it is too remote in for reason reliable; as for the reason that it is sufficiently established who is a Traylor, peniten- offered Kenneth testimony having recently been tiary doing sixty years, inmate who as an habitual offender and had convicted in this court from three or offenses which were convictions prior more court, notice. judicial this all of which court takes unavailable for purposes Whether Hopes statement, or whether was considering the admissibility interest,” court found the “against his the trial penal clearly did trust corroborating circumstances not indicate requisite we of the Based on the cannot foregoing, worthiness statement. allowing the the trial court abused its discretion in now say rule. 804(b)(3) statement as an exception hearsay III. IT ERRED WHEN DE- THE TRIAL COURT AP- NIED TO SUPPRESS APPELLANT’S MOTION PELLANT’S STATEMENTS. IN-CUSTODY Investigators from the Hot County Sheriffs Spring Depart- co-defendant, ment stopped appellant near Hopes, 31,1989. shooting scene of the the afternoon of December investigators recognized One of the as the subject an arrest warrant for outstanding felon in a firearm. possession was arrested on the Appellant warrant outstanding and Mr. was arrested for Hopes drug paraphernalia having alcohol in the car. Both men were taken the Hot Springs County Sheriffs Officewhere they jailed. That same afternoon appellant was office, taken Investigator Efird’s where he Henry signed rights gave statement of a statement at 4:16 On p.m. January 2,1990, at 96:5 p.m. appellant signed another statement rights, and at p.m. gave 9:00 another statement. 31,1989 said, in the December

Appellant “get statement Sheriff and the Chief in here man I and want to tell something you man really man.” He continued heavy that Mr. by saying Hopes had something done serious. He also mentioned something about a murder weapon. When Investigator Efird questioned appellant regarding the murder gun, and the I appellant replied, “[m]an, want my New Years man before I do all this.” Investigator Efird if replied, “Raymond can’t you me man I’m not help call fixing the Sheriff in interview, here.” During course Sheriff Cook joined them. told Investigator Efird and Sheriff Cook that Byron told he Hopes him killed somebody.

The following is a portion of the interview:

Cook: gun Where is that at? _didn’t Sanders: say anything Years,

about a New will you try to let me have a New Years? Well,

Cook: I don’t know what I can do

right now. I Sanders: bet I’m to have to be going locked

up. know, I Cook: don’t where’s the damn If gun. we could find we gun — might do about something man, I, you lives where he I know Sanders: the 12th know, to the pen going I’m or 30 years. for 20 man doubt I that. know about I don’t Cook: something, that can solve We that. it would be to somebody hurt he’s it. guarantee I’ll advantage, your New Years? my I have Can Sanders: that. about you We’ll talk Cook: information relates of this statement remainder In the Mr. Hopes. with alleged conversation his about began January conducted interview The talk “about going were they telling Efird Investigator killing The Hopes yourself. Mr. involving homicide of that following is a portion LaSalle.” of a Frederick interview: Now, wanted you told me that you

Efird: furlough. Year’s

a New did. Right, I Sanders: give you if we would And that Efird: could furlough, you put New Year’s murder weapon on to where a us was? — I believed Right where

Sanders: the murder Where believed you Efird: was? weapon Right. Sanders: not knowingly, claims the two statements therefore, and, made, should have

voluntarily, intelligently the first when he made He contends that been suppressed. drugs, of alcohol and influence statement he was under the making into induced him Investigator Cook and Efird that Sheriff for exchange Eve Year’s him New by promising information. to be

Custodial statements are presumed involuntary. Ark. 791 S.W.2d On Moore v. 303 698 appeal on state the burden is to show that confession made of and without reward voluntarily, freely, understanding^, hope State, 478, or fear of Jackson v. 284 Ark. 683 punishment. A (1985). S.W.2d 606 statement induced fear or of hope 264, 630 voluntary. reward is not Davis v. 275 Ark. S.W.2d (1982). determining In whether a custodial statement is we voluntary, make an review the of independent totality circumstances and will reverse if the trial only findings court’s are clearly against the of the evidence. Scherrer v. preponderance 227, S.W.2d 877 The is totality first, subdivided into two main components, the statement of the second, Davis, officer and vulnerability the defendant. supra.

Looking officers, at the statements it appears gave his first statement in anticipation being re warded with a “New Year’s furlough.” Officer Efird in the second statement even referred to that of the first part interview involving a in furlough exchange for information about where the murder weapon could be found. Appellant’s first statement to have appears been induced by Therefore, of reward. hope was not and voluntary should have been suppressed.

IV. THE TRIAL COURT IN ERRED REFUSING APPELLANT’S TENDERED JURY INSTRUCTION AMCI 1502 WHICH SET OUT THE FELONY MUR- DER PROVISION OF THE FIRST DEGREE MUR- DER STATUTE. and 3, 1990, Hopes on January

charged murder, capital violation of Ark. Code Ann. 5-§ 10-101 1989), on (Supp. December did they unlawfully commit aggravated robbery, course of and in furtherance of therefrom, said or in felony, flight immediate caused they the death of a person under circumstances manifest- ing extreme life; indifference to the value human the defend- LaSalle, times, ants allegedly shot M. Frederick Jr. four at least beat and killed him for the purpose of stealing money, whiskey, beer, and thereafter did commit the theft While property. murder and capital on both jury at trial instructed

the court murder, tendered first it refused to degree first Court’s Instructions following, murder instruction. degree given which were 16, 19, the instructions are Nos. murder, degree respectively: and first murder NO. INSTRUCTION COURT’S (AMCI 1501) offense of is with the charged C. Sanders Raymond State must charge, this Murder. To sustain Capital a reasonable doubt. following things beyond prove alone or acting C. Sanders That First: robbery, the crime of committed with one or more persons and; of, course and in furtherance That

Second: crime, or a with person acting C. Sanders Raymond him, under circum- death of Frederick LaSalle caused the an indifference to the value manifesting extreme stances human life. NO. 19 INSTRUCTION

COURT’S (AMCI 302) guilt doubt of the defendant’s If have a reasonable you Murder, will then consider charge you on the of Capital charge Degree. of Murder the First INSTRUCTION NO. COURT’S (AMCI 1502) a beyond the State must charge, prove To sustain this reasonable doubt: C. caused Raymond accomplice

That Sanders or an with the premeditated the death of Frederick LaSalle of doing deliberated so. purpose regarding is instructions following appellant’s proffered murder: degree first

DEFENDANT’S INSTRUCTION REQUESTED

1NO. (AMCI 1502) charged Sanders is with the offense of Raymond in the degree. charge, murder first To sustain this the State must prove following things beyond a reasonable doubt:

First: That Raymond acting Sanders alone or with or one more committed or persons attempted commit robbery; That in

Second: the course of and in furtherance therefrom, or that crime or in immediate attempt flight or Sanders acting him caused the person death Frederick LaSalle under circumstances manifest- ing extreme indifference to the value human life. argues the trial court erred in refusing instruction, requested AMCI because he was never charged with murder under the premeditation delib- eration but provision only under the He felony contends provision. lesser included offense to appropriate murder is capital felony first degree felony murder. agree. We

When there ais rational basis for a verdict acquitting of the charged defendant offense him the convicting of offense, included an instruction on a lesser included offense given, should be and it is reversible error to fail to give such State, instruction when warranted. Moore v. 222, 280 Ark. 656 S.W.2d (1983). 698 State, court,

This v. Hill 462, 303 Ark. 798 S.W.2d 65 (1990), was faced with a similar situation. The in Hill appellant was charged with violations of sections 5-10-101 (capital felony murder); 1989) 5-12-102 (Supp. and 5-36-103 (robbery); (Supp. 1989) (theft of Prior to property). the submission of the case the the jury, tendered a appellant jury instruction felony on. murder in the first degree as a lesser included offense of capital felony murder. The proffered instruction tracked the provisions of Ark. Code Ann. 5-10-102(a)(1) 1989), first the (Supp. § However, degree murder felony statute. the instruction on first 122 to convict jury the permitted the court gave murder which

degree finding “premedi- first-degree murder upon appellant 5-10- deliberation,” Ark. Code Ann. and followed § tation and first-degree convicted (1987)1 102(a)(2) appellant found guilty murder, charge robbery, of the acquitted instruction We found proper theft of property. misdemeanor and stated: was refused 5-10- Code Ann. 5-10-101 and Ark.

Though § § does not this circumstance 102(1) admittedly overlap, in its constitutionally applica suspect render either statute 234, 681 State, (1984); 304 v. 284 Ark. S.W.2d tion. Penn 682, (1981). State, 611 S.W.2d 739 v. 271 Ark. Wilson Indeed, felony murder is said that when we have 5-10-101, first-degree Code Ann. charged under Ark. § because the same a “lesser included offense” murder is necessity former of proves used to prove evidence Therefore, first-degree murder is an instruction latter. State, v. Ark. Rhodes required. would have instruction in this instance

(1986). The proper murder instruction as author felony first degree been the 5-10-102(1) of Ark. Code Ann. ized under the provisions § — tendered by form of instruction very the court. and refused 468-69, Hill, at at 798 S.W.2d 69. Because 303 Ark. finding murder based on a degree was convicted of first which he deliberated crime with of a premeditated purpose, charged, proper been we found the omission had not his due and violative of instruction to have been prejudicial rights. process Hill, instruction, bar, as in supra, proper

In the case at 5-10-102(a)(1), section tracking tendered instruction appellant’s determined, be question was refused. That the next being and violative of is whether the omission prejudicial addressed 287 Ark. rights. due Evans v. process S.W.2d (1985); Conley S.W.2d 879 1 5-10-102(a)(2) amended 856 of 1989 to eliminate Ark. Code Ann. Act § any “premeditated purpose. and deliberated” murder, before,

As stated section 5-10- capital murder, and 101(a)(1), degree first section are 5-10-102(a)(1), Hill, evidence, the same and where the accused proven by supra, is charged with homicide the course of one of committing felonies named in (a)(1), section 5-10-101 must judge also murder, instruct on first degree 5-10-102(a)(1). section Rhodes State, 60, addition, v. 290 Ark. 758(1986). S.W.2d In we held in have cases where the statues both instructions overlap are required, refuse consideration of jury may both the death and life without penalty by returning a as parole guilty verdict State, of charge murder in the first degree. Clines v. 280 Ark. (1983); 656 S.W.2d 684 Wilson v. 271 Ark. court, S.W.2d 739 (1981). The trial by refusing instructions, tendered took this away from the option jury. Although murder, convicted jury it chose lesser the two possible sentences. Because both capital murder and first degree murder this situation require proof elements, the same there ais rational basis for a verdict acquitting capital murder convicting him of degree first murder; had the third been option available to the jury, exists possibility that would have convicted appellant of first degree murder.

Based on the foregoing, we believe appellant prejudiced by the omission of the instruction. proper judgment His must, therefore, conviction be and the reversed case be remanded for a new trial.

Hays, Glaze, JJ., Brown, concur in part; dissent in part. Hays, Justice,

Steele concurring in part, dissenting in part. I agree the majority with respect the first degree murder instruction Ibut do not agree that statements should have been In suppressed. determining whether an in-custodial confession has been reward, induced by promise we look to the totality of the circumstances. Davis v. (1982). Furthermore, it is necessary that the

accused rely Hall, on such promise, State 586 P.2d 1266 (1978); Morris, State v. (Ore. P.2d 350 1978), and it App. must be accused, the police, rather than the that propose the Harwick, reward. State v. (Kan. 1976). 552 P.2d 987 tenets, fails to proof my the estimation those Applying First, it was statement. the warrant suppression officers; second, who the interview the instigated appellant officers some give he wanted to the outset that he indicated at murder; third, his about the information “heavy” statement Brown v. e.g., came, interrogation [see, end of a lengthy not at the but after some (1939)], minutes; fourth, no of an or implied there is proof express ninety statement, given be if he made furlough that would promise nor did he no allegation to contains such his motion suppress to trial court. two Only make contention himself that Cook, witnesses, testified and Sheriff Henry Doyle Officer Efird any both denied that categorically at hearing the suppression to appellant: was made promise Efird): (Officer Now, talked you, that if he to expecting

Q. where some kind of deal he could work going you Years, out for New wasn’t he? get jail No, lead Sanders to believe that. A. sir. I never did Mr. [My emphasis.] Cook):

(Sheriff any promises Do remember whether made Q. you you information, would you that for exchange the defendant something? for or him something give do him No, sir, I A. didn’t make no promises. if were to you he led to believe that he

Q. you Was effect, you or a or of that anything information statement For let him have something would do for him. example, New off? Day Year’s No, no any promises.

A. sir. I wasn’t in make position kind, Sheriff? any Did make a Q. you promise No, A. [My sir. emphasis.] hearing, did testify Since not at suppression appellant that and thus requirement stands unrefuted testimony or implied he on an express accused establish that relied fifth, of reward is it wholly promise lacking; who rather the officers as furlough, solicited than proposing inducement; sixth, gave an the statement after having rights had his Miranda which fully explained, he acknowl- seventh, edged verbally writing; was no stranger having had considerable police procedures, experience State, law enforcement. v. Wright 590 S.W.2d 15 (1979).

The trial court heard the evidence as to the voluntariness the appellant’s in-custodial statement and observed de- meanor of only witnesses who I suggest finding testified. was not clearly erroneous and should not be disturbed. Davis v. v. supra Harvey Ark. 611 S.W.2d 762 Brown, join.

Glaze JJ. STATE Arkansas VAN PELT Larry CR 90-275

Supreme Court of Arkansas Opinion delivered March

Case Details

Case Name: Sanders v. State

Court Name: Supreme Court of Arkansas

Date Published: Mar 25, 1991

Citation: 805 S.W.2d 953

Docket Number: CR 90-223

Court Abbreviation: Ark.