Childress v. State

• Decision Date: 16 October 1995
• Docket Number: No. CR,CR
• Citation: 907 S.W.2d 718,322 Ark. 127
• Parties: Durrell CHILDRESS, Appellant, v. STATE of Arkansas, Appellee. 94-1222.
• Court: Arkansas Supreme Court

Page 718

907 S.W.2d 718

322 Ark. 127

Durrell CHILDRESS, Appellant, v. STATE of Arkansas, Appellee.

No. CR 94-1222.

Supreme Court of Arkansas.

Oct. 16, 1995.

Wm. R. Simpson, Public Defender, Llewellyn J. Marczuk, Deputy Public Defender, Little Rock, for Appellant.

Clint Miller, Deputy Attorney General, Little Rock, for Appellee.

DUDLEY, Justice.

Appellant Durrell Childress and Everett Foreman decided to rob Henry Callanen, an off-duty policeman, while he was transporting money to a bank. Foreman, who formerly worked at the McDonald's Restaurant on West Roosevelt in Little Rock, knew that the restaurant closed at midnight on Fridays, knew that it was customary for the restaurant manager to hand Officer Callanen deposit bags containing the day's receipts, knew that the off-duty policeman would then take the bags to his car and drive to the bank. Appellant possessed a pistol.

Just before midnight on a Friday night, appellant and Foreman got in Foreman's car, drove to the area of the restaurant, parked away from the restaurant, got out, skulked close to the restaurant, hid behind a menu board and some shrubs that are located in a drive-through area adjoining the parking lot, and waited for the off-duty officer to take the deposit bags to his car. Three people in a nearby house saw them and sensed what was about to happen. One phoned the restaurant to give warning. As the phone rang, Anthony Brown, the assistant manager of the restaurant, was handing the deposit bags containing $2,700 to Officer Henry Callanen and setting the alarm system for closing.

Carla Jackson was in a car on the parking lot and saw Officer Callanen come out of the restaurant with the bags and walk toward his car. She saw someone in the drive-through area and heard a shot just as Callanen was approaching his car. She looked up again, saw a person standing close to Officer Callanen, and heard someone say "drop it." She heard two more shots.

Appellant told his friend Tenora Riles that he and Foreman went to the restaurant to commit the robbery and told the officer to "drop the money," but instead the officer fired his pistol. He said that he then started running and threw away his pistol.

Later that night appellant gave his girlfriend Lottie Sims a jacket that had the word "Raiders" emblazoned on it. It was identical to a jacket that witnesses said was worn by one of the robbers. Sims said that appellant told her he wanted money to buy a car and to support his new child.

Appellant gave three additional incriminating statements; the first was non-custodial, and the next two were custodial. In the third of these statements, he admitted all the details of the crime. Appellant and Foreman were jointly charged, but tried separately. In this case, appellant was found guilty of capital murder and aggravated robbery and was sentenced to life imprisonment without parole for the capital murder. We affirm the judgment of conviction.

The evidence of guilt was overwhelming, and appellant does not question the sufficiency of the evidence. Rather, he raises eight points of appeal involving both pre-trial and trial rulings. We categorize the points into five parts.

I.

Appellant's first point of appeal involves the police transcription of his first in-custodial statement. In Callaway v. State, 258 Ark. 352, 524 S.W.2d 617 (1975), we said the issue of undue emphasis in transcriptions had never before been presented to us, but the issue was procedurally barred in that case. Two years later, in Baysinger v. State, 261 Ark. 605, 550 S.W.2d 445 (1977), we decided the issue. We cited the cases that reflected a division among courts, and held that a police transcription of a recorded statement was admissible (1) when it was shown to be accurate and (2) when it would have been necessary to replay the recording for the jurors several times had the transcription not been used. We did not hold that those two occasions were the only times a police transcription might be admissible. They may be admissible on other occasions, such as when the recording includes inadmissible materials and it would be best to delete the inadmissible materials from a written transcript rather than from the recording. In Williamson v. State, 263 Ark. 401, 565 S.W.2d 415 (1978), we held that an accused must be supplied a copy of a police transcription of a confession and the original tape so that they could be compared. In Leavy v. State, 314 Ark. 231, 862 S.W.2d 832 (1993), we held that a trial court had discretion to determine if a transcription was accurate and we would not reverse a finding of accuracy absent an abuse of discretion.

In Harvey v. State, 292 Ark. 267, 729 S.W.2d 406 (1987), the taped statement was inaudible in part and the police transcription so provided. We upheld its admission because the trial judge gave a cautionary instruction that the police transcription was to be used only as an aid in understanding the recording.

Here, appellant did not object to the use of police transcriptions of the two incriminating statements. Rather, he only objected to the use of certain parts of the transcript of the first statement. His objection was that, in places, the transcript reflects that at the time Officer Callanen came out of the restaurant, appellant said to Foreman, "Now man, now." Appellant contended the transcript should reflect that he said, "Naw man, naw," and he proffered a transcript so stating. He also proffered a transcript reflecting that part of the statement was "unintelligible." Two detectives testified that the tape and the transcript were both accurate. Appellant testified that the transcript was in error and the officers misunderstood him. The trial court listened to the recording, concluded that the police transcription was correct, and allowed the jurors to use it as a guide while they heard the recording of the actual statement. The trial court stated that appellant could argue to the jury that the transcript was in error.

The issue is one of authenticity. Rule 901 of the Arkansas Rules of Evidence governs authenticity and provides that authenticity may be determined by a trial court by comparing an authenticated item with a copy. The trial judge heard the testimony and compared the transcript with the taped statement and made his finding. Appellant offers nothing on appeal other than his testimony and the tape to show that the trial court abused its discretion in admitting the transcript. We cannot say that the trial court abused its discretion in weighing the evidence presented.

In Harvey, 292 Ark. at 271, 729 S.W.2d at 408, we said that we have reservations about admitting police transcripts into evidence. We still have that concern, and in that vein we note that Rule 901 provides for proof when, as here, there are characteristics of speech or dialect that might be misunderstood. Here the trial court had nothing but the testimony of the detectives, the testimony of appellant, and the tape. There is no proof indicating whether a characteristic of ethnic speech or the dialectic pronunciation of a word might show that the detectives and the transcript were in error.

In addition to comparing the tape to the transcript, the trial court gave the following cautionary instruction to the jury:

I need to instruct you, ladies and gentlemen--we're about to play an audio tape, as you well know. I'm instructing you that in the case of any variation that you might perceive between the audio tape and the typed transcript that we're going to let you read, you're to be guided by the tapes themselves, you understand, of what you hear and not by the transcript that you're going to be handed to read.

Moreover, appellant argued to the jury that the transcript was in error. Under these conditions, even if the trial court's ruling had been in error, it is doubtful that appellant would have been able to show prejudice. See Leavy, 314 Ark. at 235, 862 S.W.2d at 833.

II.

Detective Joe Oberle of the Little Rock Police Department testified that he went to appellant's mother's home to search for the weapon that was used to kill Officer Callanen. In the presence of Oberle, Ms. Childress phoned appellant, who was in the Living Hope Institute, a division of Doctors Hospital in Little Rock, and asked what he had done. Detective Oberle testified that Ms. Childress said, "Why didn't you tell me?" and then instructed appellant to get on the phone and tell Oberle what he needed to know. Oberle took the phone, identified himself as a policeman, and asked, "What's up?" Appellant told him that Foreman shot Callanen. Oberle asked about the pistol, and appellant responded that he did not know where it was. This conversation took place about 1:00, and appellant's first custodial statement took place at about 3:00 that same afternoon.

Appellant argues on appeal that the two subsequent custodial statements should have been suppressed because Detective Oberle did not give him a Miranda warning on the phone, and the two custodial statements were the result of his telephone statement to Detective Oberle; thus, they were "fruit of the poisonous tree." See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

The State did not attempt to introduce the voluntary non-custodial, but unwarned, incriminating statement by appellant, and on that we make no comment. We address only the point argued.

In Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), the Court addressed this issue, and we paraphrase the opinion as it applies to the case before us. The "fruit of the poisonous tree" doctrine assumes the existence of a constitutional violation. Violations of the Fourth Amendment's prohibition against unreasonable search or seizure are constitutional violations. Thus, when there is a Fourth Amendment violation, and a subsequent confession, it should be excluded unless intervening events break the causal connection between the Fourth Amendment vi...