Bowden v. State, CR

• Decision Date: 05 December 1988
• Docket Number: No. CR,CR
• Parties: Michael Dale BOWDEN, Appellant, v. STATE of Arkansas, Appellee. 88-46.
• Court: Arkansas Supreme Court

Page 148

761 S.W.2d 148

297 Ark. 160

Michael Dale BOWDEN, Appellant, v. STATE of Arkansas, Appellee.

No. CR 88-46.

Supreme Court of Arkansas.

Dec. 5, 1988.

Buford Gardner, Harrison, for appellant.

Theodore Holder, Asst. Atty. Gen., Little Rock, for appellee.

HOLT, Chief Justice.

The appellant, Michael Dale Bowden, was convicted of capital murder and sentenced to life imprisonment without parole. For reversal, he argues that the trial court erred in (1) admitting identification testimony into evidence; (2) finding there was probable cause for arrest; (3) ruling that a child witness was competent to testify; (4) refusing to allow the defense to play a tape to question the credibility of a child witness; (5) allowing testimony from an expert witness regarding an experiment he conducted; and (6) admitting into evidence testimony regarding statements not furnished in discovery. Inasmuch as the court erred in two respects, we reverse and remand for a new trial.

At 1:55 a.m. on April 19, 1987, Gary Keeter, a Harrison police officer, went to the home of Johnny Hefley in response to a call that there was a disturbance there. Upon the officer's arrival, a man from across the street told him that he had "a little boy over at his home who says his mom and dad is bleeding." Upon entering Hefley's residence, Keeter saw the bleeding bodies of Johnny Hefley and Cindy Bowden, Hefley's former wife. In addition, Keeter saw a number of nine millimeter shell casings lying on the floor.

Other officers arrived on the scene a few minutes later. According to Officer Glen Redding, the police were able to make the following factual observations at this point: (1) the victims were shot to death; (2) neither victim appeared to be armed; (3) there was no forced entry into the residence; (4) in light of the location of the bodies (Hefley's was slumped over in a chair; Bowden's was on the floor beside Hefley's), what they were wearing, and the fact that there were no signs of forced entry, Hefley and Bowden apparently knew their murderer.

Upon being advised that Hefley's and Bowden's five-year-old son, John David Hefley, was across the street at a neighbor's residence, Officer David Cone spoke with him. John David told the officer that he had been in his bedroom and heard what he thought was a fight between his mother and father and that he got out of bed, walked into the living room, and found his mother and dad lying on the floor. The officer then asked him if anyone else had been there that night. John David replied, "Michael Bowden from Texas."

Officers at the scene also talked with Michael James, who lived two houses down from the Hefleys' home. According to James, as he was driving up to his house earlier that night around 1:30 a.m., he noticed a late 70's dark blue Ford pickup truck parked on the street in front of the Hefleys' home. A few minutes later, while he was at his home, James heard a loud metallic banging noise and a female voice "trying to get them to stop." In all, he heard seven or eight of these noises. Immediately thereafter, he heard a car door slam and gravel spin out from under the tires. He then looked out of his window and saw the pickup which had been parked in front of the Hefleys' residence leaving the scene rapidly. As the truck turned the corner, he heard something sliding across its bed.

After learning that Michael Bowden had been in the house that night, the police immediately attempted to gain information about him. Relatives of Cindy Bowden informed the police that Michael Bowden was Cindy Bowden's husband and that two weeks prior to the murders, she had left him in Waxahachie, Texas, where they were living, and returned to Harrison to live with her former husband, Johnny Hefley.

Carl Bowden, Michael's brother, informed the police that Michael was driving Carl's tan or cream-colored 1979 Ford pickup truck and that the bed of the truck contained plastic milk crates.

Christine Franz, Michael and Cindy Bowden's daughter, informed police that Michael had contacted her twice on April 18, 1987, in an attempt to contact Cindy Bowden. In addition, the police talked to Cindy's mother, who told them that Cindy was afraid of Michael because he had recently found out that Cindy was living with Johnny Hefley.

At 9:00 a.m. on April 19, Rondall Campbell told police that seven days prior to the murders, while he was at Hefley's residence, Cindy Bowden had a telephone conversation with Michael Bowden's sister, Kathleen Bowden Harless. According to Campbell, Harless told Cindy that Michael was suicidal. In addition, he told police that Cindy informed him that she believed Harless had made threatening calls to her the day before.

In talking with the Waxahachie, Texas, police, the Harrison police learned that Michael Bowden previously had been convicted of a homicide that involved the breakup of a marriage.

On April 19, 1987, the Waxahachie police issued a warrant for Michael Bowden's arrest, and at approximately 1:30 p.m., they arrested him at Carl Bowden's home in Waxahachie.

On April 22, the police brought Bowden back to Arkansas. Upon arrival at the Harrison police station, he invoked his right to counsel.

On April 23, 1987, an information was filed against Bowden. On the same day, police officers, in attempt to obtain additional evidence that Bowden had been in Arkansas on the night of the murders, showed two pictures of Bowden to Joe Williams, an attendant at a service station in Conway, Arkansas, and asked him if he had seen the individual in the pictures. Williams replied that he had not. The police then showed him a driver's license picture of Bowden depicting him with glasses. Williams told police he had seen the individual in the picture on April 19 between 2:00 and 3:00 a.m. Williams also told police that Bowden was driving an older light colored truck and gave the police a detailed description of him.

On April 24, Bowden was arraigned. Public Defender John Nichols appeared at the arraignment as Bowden's counsel.

On the morning of April 27, the police advised Bowden that a lineup would be conducted later in the day. According to Officer Glen Redding, he asked Bowden if he had an attorney he would like to contact prior to the lineup, and Bowden advised him that he or his brother had been in contact with Buford Gardner and that he anticipated Mr. Gardner being hired as his attorney. In addition, Redding informed Bowden that John Nichols would be present at the lineup.

Redding then transported Bowden from the sheriff's office to the police department, where the lineup was to be held. Upon arrival at the police station, Redding contacted both Nichols and Gardner. Gardner stated he did not represent Bowden and would not attend the lineup. Nichols indicated he did not believe he could represent Bowden because of his lack of experience. According to Redding, he then informed Bowden that neither would be present, and Bowden did not thereafter request an attorney.

Bowden's account is somewhat different. According to Bowden, Redding told him that he had the right to an attorney at the lineup but never asked him if he wanted an attorney present. In addition, Bowden asserts that after they arrived at the police station, Redding told him that John Nichols was on the way over and just before the lineup, Redding told him that Nichols was there.

The lineup was then held without counsel being present, and Joe Williams positively identified Bowden as the man he saw at the service station on the night of the murders.

I. IDENTIFICATION TESTIMONY.

Bowden argues that the trial court erred (1) in admitting into evidence testimony by Joe Williams that he identified Bowden in the lineup in that the lineup was conducted without counsel present and (2) in allowing identification testimony at trial by Williams that during the early morning hours of April 19, 1987, Michael Bowden stopped at a service station in Conway where Williams was working in that this evidence was tainted by the illegal lineup procedure. We conclude that the trial court erred in allowing William's testimony regarding the lineup and reverse and remand for a new trial.

Bowden clearly had the right to counsel at the post-information lineup absent a knowing and intelligent waiver. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Loane v. State, 271 Ark. 797, 611 S.W.2d 190 (1981); Jackson v. State, 249 Ark. 653, 460 S.W.2d 319 (1970). The burden is upon the State to show that an accused's waiver of his constitutional right to counsel at a lineup was given voluntarily, knowingly, and intelligently. Loane, supra. The determination of whether there has been an intelligent waiver of right to counsel depends upon the particular facts and circumstances of the case, including the background, experience and conduct of the accused. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct 1019, 82 L.Ed. 1461 (1930). A trial court's ruling on waiver of counsel will not be set aside unless clearly erroneous. Loane, supra.

We conclude from the facts and circumstances before us that Bowden did not knowingly relinquish or abandon his right to counsel at the lineup. There was testimony by Redding that after he informed Bowden that counsel would not be present, Bowden did not request an attorney. However, he was not asked if he chose to proceed [See Loane, supra], but simply placed in the lineup. In sum, the State did not meet its burden of showing an intelligent and voluntary waiver by Bowden of his right to counsel.

The presence of counsel at a lineup serves not only to allow an informed challenge to be made to identification testimony at trial in order to diminish the weight given to it by the jury, but also to minimize the likelihood of an unduly suggestive confrontation. Wade, supra; United States v. Allen, 408 F.2d 1287 (D.C.1969). As Wade recognizes, "[t]he trial which may determine the accused's fate may well not be in the...