Brenk v. State
| Decision Date | 25 January 1993 |
| Docket Number | No. CR,CR |
| Citation | 311 Ark. 579,847 S.W.2d 1 |
| Parties | Herbert Fred BRENK, Appellant, v. STATE of Arkansas, Appellee. 91-182. |
| Court | Arkansas Supreme Court |
Larry Dean Kissee, Ash Flat, Tom Garner, Glencoe, for appellant.
Clint Miller, Asst. Atty. Gen., Little Rock, for appellee.
On August 23, 1990, a cooler was found floating in Lake Norfork, Baxter County, Arkansas. It contained cement and the torso of a white female severed at the upper thighs and lower back. The Arkansas State Police and the Baxter County Police conducted an investigation which led them to believe the torso was that of Lou Alice Brenk. Appellant, Herbert Fred Brenk, who was Lou Alice Brenk's husband was a suspect. On September 10, 1990, Albert Roork, Chief of Police for the City of Salem, who was aware of the investigation and that appellant was a suspect had a warrant issued for appellant's arrest for an unpaid DWI fine from 1988. Before arresting appellant on the warrant, Chief Roork contacted, David Lafferty of the Baxter County Police who was involved with the investigation of the discovery of the cooler, to make sure that his arrest of appellant would not interfere with their investigation. Officer Lafferty relayed this message to Bill Beach, who was also investigating the discovery of the torso. Investigator Beach told Officer Lafferty to tell Chief Roork to arrest appellant if he had a valid arrest, but not to do so on behalf of the Baxter County Police. Officer Lafferty relayed this message to Chief Roork. Chief Roork arrested appellant at the home of Lonnie Hodges. At the time of his arrest, appellant had a blood alcohol content of .08. Appellant was on probation in Fulton County for theft/shoplifting at the time of his arrest. A condition of appellant's probation was that he not use or have in his possession any intoxicating beverages. Since appellant's blood alcohol content violated a condition of his probation, Chief Roork notified appellant's probation officer, Billy Benton, and Mr. Benton filed a petition to revoke appellant's probation. Mr. Benton advised appellant that he would need an attorney for the revocation hearing. Appellant requested that his attorney, Tom Garner, be present On September 11, 1990, the torso was identified as that of Lou Alice Brenk and suspicion settled on appellant, her husband, as the prime suspect. On September 12, 1990, the Baxter County Police, Bill Beach, Lieutenant Frame, and Sergeant Alman, interviewed appellant at the Fulton County Jail, where he was still being held for failure to pay his DWI fine and pending a hearing on the petition to revoke probation. At that time, appellant consented to talk to the Baxter County officers about the disappearance of his wife, Lou Alice. Appellant answered several questions, but indicated he would like an attorney when the officers questioned him about his ownership of the cooler in which Lou Alice's remains were found, at which point the interview ceased.
for the [311 Ark. 584] hearing. Mr. Benton informed the sheriff's department that Mr. Brenk wanted an attorney. On September 12, 1990, the Sheriff of Fulton County, Paul Martin, informed Tom Garner that appellant wanted to talk to him.
Appellant was charged with capital murder in connection with the death of Lou Alice Brenk on September 13, 1990, and a warrant was issued for his arrest that same day. Appellant's counsel also entered their appearance on September 13, 1990, and formally requested that he not be interviewed without their permission. A jury trial was held June 17 through July 1, 1991, at which appellant was found guilty of capital murder and sentenced to death by lethal injection by a jury in connection with the death of his wife Lou Alice Brenk. Appellant appeals his conviction on eleven (11) grounds. Our jurisdiction is proper under Ark.Sup.Ct.R. 29(1)(b).
We treat a challenge to the denial of a motion for directed verdict as a challenge to the sufficiency of the evidence and address it first since the double jeopardy clause precludes a second trial when a conviction in a prior trial is reversed solely for lack of evidence. Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992). We must decide this issue on appeal even though the case is being reversed and remanded on other grounds. Moore v. State, 297 Ark. 296, 761 S.W.2d 894 (1988). "In considering the issue, we disregard other possible trial errors." Id. at 301, 761 S.W.2d at 897.
The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, whether direct or circumstantial. Id. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion and conjecture. Lukach, 310 Ark. 119, 835 S.W.2d 852. In determining the sufficiency of the evidence, we need only ascertain that evidence most favorable to appellee and it is permissible to consider only that testimony which supports the verdict of guilty. Id.; Moore, 297 Ark. 296, 761 S.W.2d 894.
At trial, evidence was introduced that appellant owned the cooler in which the remains of his wife were found. Appellant had access to the saw which was determined to have been used to cut up Mrs. Brenk's body. Two people who had been in jail with appellant testified at trial. One of these people, Ted Ullman, testified that appellant admitted to killing his wife and the other, William Lemmons, testified that appellant said that if he had it to do over again he'd make sure he put the portion of his wife's body that was found with the other portions so he wouldn't get caught. Several witnesses testified that they asked appellant about Lou Alice's whereabouts at a time the coroner testified she was already dead and he told them differing stories about where she was. Appellant told some people that Lou Alice had gone to visit her daughter and others that she had left him for another man, but her daughter never saw Lou Alice and reported Lou Alice missing after it became clear that no one in the family knew where Lou Alice was. In his interview with the police of September 12, 1990, appellant said his wife left him on August 24 and he saw her again on August 31 when she returned, gave him some money and took all her clothes. Appellant also told the police that on September 9, he received a note from Lou Alice at their
trailer telling him they were through and she wanted a divorce. Appellant also told the police that Lou Alice had taken the rest of her things at that time. Lying about Lou Alice's whereabouts at a time when she was clearly dead indicates a consciousness of guilt on the part of appellant and attempts to cover up a crime are admissible. See Kellensworth v. State, 276 Ark. 127, 633 S.W.2d 21 (1982); Flowers v. State, 30 Ark.App. [311 Ark. 586] 204, 785 S.W.2d 242 (1990). This constitutes substantial evidence from which the jury could have concluded appellant murdered his wife, Lou Alice Brenk.
Appellant claims the statement he made to the Baxter County Police on September 12, 1990, is inadmissible for two reasons. First, appellant claims his arrest by Chief Roork on failure to pay a DWI fine was pretextual and the statement obtained from him by the Baxter County Police, on September 12, 1990, while he was in the Fulton County Jail on that charge was the "fruit of the poisonous tree" and was inadmissible. Second, appellant had been advised by his probation officer, Billy Benton, that he would need counsel for his revocation hearing and had requested counsel for that purpose. Appellant argues that this request invoked both his Fifth and Sixth Amendment rights to counsel, prohibiting the use of any in custodial statement made by him after that request without the presence of counsel. We disagree with both of appellant's contentions.
Pretext is a matter of the arresting officer's intent, which must be determined by the circumstances of the arrest. Richardson v. State, 288 Ark. 407, 706 S.W.2d 363 (1986). Here, Chief Roork testified at a pretrial hearing that he arrested appellant because he knew appellant was being investigated, knew appellant owed almost $500.00 on a DWI, and was aware appellant had been selling things and had turned off his electric service. Therefore, Chief Roork testified that he was afraid appellant would flee the area and the city would be unable to collect its fine. Chief Roork testified that appellant could have gotten out of jail by paying the fine and posting a bond for his revocation hearing. Credibility of the witness is a matter for the trier of fact and such determinations will not be disturbed on appeal when there is substantial evidence to support the factfinder's conclusion. Atkins v. State, 310 Ark. 295, 836 S.W.2d 367 (1992). Additionally, there is no indication in the record that Chief Roork or the Salem City Police attempted to question appellant about the disappearance of his wife, the cooler, or any other related matter. The Baxter County Police, who were investigating the cooler, specifically told Chief Roork not to arrest appellant on their behalf, but to arrest him if he had a valid warrant. Also, it was not until one day after appellant's arrest for failure to pay his DWI fine that the torso was identified as that of Lou Alice Brenk and not until two days after his arrest for the DWI charge that appellant was questioned by the Baxter County Police. On these facts, we do not find the arrest was clearly pretextual.
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