Crow v. State, CR

• Decision Date: 16 September 1991
• Docket Number: No. CR,CR
• Citation: 306 Ark. 411,814 S.W.2d 909
• Court: Arkansas Supreme Court
• Parties: Nancy CROW, Appellant, v. STATE of Arkansas, Appellee. 91-3.

Page 909

814 S.W.2d 909

306 Ark. 411

Nancy CROW, Appellant, v. STATE of Arkansas, Appellee.

No. CR 91-3.

Supreme Court of Arkansas.

Sept. 16, 1991.

Craig Lambert, John Wesley Hall, Little Rock, for appellant.

J. Brent Standridge, Asst. Atty. Gen., Little Rock, for appellee.

GLAZE, Justice.

Appellant was convicted for the capital murder of her mother, Gladys Crow, and sentenced to life imprisonment without parole. On appeal, she raises four points for reversal.

As background information leading to appellant's arguments, we first relate some of the pertinent evidence introduced at trial that supports appellant's conviction. Appellant's accomplice, Donald Bates, told the police about the murder, and testified against appellant in exchange for a reduction of the charge to first degree murder and sentence of life imprisonment. The state's evidence showed Ms. Crow was murdered the morning of October 3, 1989, and on October 31, 1989, her body was found partially submerged in a pond located on property owned by Sollie Sutliff. On November 1, Bates confessed to the police, and implicated the appellant as the one who actually killed Ms. Crow. Bates lived on property which he with another person purchased from Ms. Crow and her husband. They were in arrears on the property which was located adjacent to appellant's. He said that appellant expressed concern that she believed her mother planned to disinherit her; therefore, she asked Bates to assist in a plan to murder her mother.

Ms. Crow was expected to arrive at appellant's home on the morning of October 3, and appellant and Bates designed a plan so the appellant could use a crossbow to shoot an arrow through the window of her mobile home as her mother walked towards the home through a small gate. While various means had been discussed to achieve this objective, Bates testified that he was actually present that morning at appellant's premises and, when Ms. Crow arrived and departed from her car, he suggested she walk through the small gate entrance. As Ms. Crow walked through the gate, the appellant shot her, but her wound was not fatal. Ms. Crow managed to return to her car and attempted to get away. However, by this time, appellant had run to the scene, and with Bates's assistance, they were able to stop Ms. Crow's car. Ms. Crow then passed out, and after Bates and appellant drug her out of her car, appellant proceeded to shoot Ms. Crow with the crossbow two additional times at close range. Bates related how he and appellant disposed of Ms. Crow's body, clothing, car and the arrows. Prior to Bates's confession, the police had already found Ms. Crow's car, which Bates had burned soon after the murder in order to get rid of the blood stains. After confessing, Bates took the police to where he and appellant had disposed of clothing and also the arrows used to shoot Ms. Crow. The officers were able to retrieve the clothing and two arrows from a creek.

Based upon Bates's confession, the police obtained an arrest warrant for the appellant. As a result of two searches of appellant's home, the officers found two diary sheets. These sheets of paper contained references to the murder and further implicated appellant. At the time of appellant's arrest, she was a patient in a Texas hospital. With this background, we now turn to appellant's first argument on appeal.

Upon the request of Johnson County Sheriff Eddie King, local Texas law enforcement officers effected appellant's arrest at the Texas hospital. Appellant was on oxygen and attached to an I.V. The officers did a search incident to appellant's arrest looking for possible weapons and removed a kitchen knife. While an officer remained in appellant's room, another called Sheriff King who asked if a diary had been found during the search. Upon returning to appellant's room, the Texas officer saw the diary, a brown three-ring notebook covered in foil, situated on a tray table about five to six feet from her bed. The officer seized the diary. Appellant argued at trial, and now on appeal, that the officers had unlawfully seized the diary, and the trial court erred in failing to suppress its introduction into evidence. We disagree.

Even though the officers did not have a search warrant to search appellant's room, the law permits a search of the area within the immediate control of the person arrested. A.R.Cr.P. Rule 12.2. In State v. Risinger, 297 Ark. 405, 762 S.W.2d 787 (1989), we set out the following relevant Supreme Court's discussion in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), of the "search incident to arrest" principle as follows:

[W]hen an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer's safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee's person and the area "within his immediate control"--construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence. (Emphasis added.)

In the present case, the record reflects that appellant's diary was only five or six feet from her bed, and although she was on oxygen and attached to an I.V., she was able, on her own, to leave her bed and to walk. Thus, appellant undoubtedly had the capability to destroy the diary. The accessibility issue aside, the Chimel rule defines the area which may be searched, and is not constrained because the arrestee is unlikely at the time of the arrest to actually reach into that area. United States v. Palumbo, 735 F.2d 1095 (8th Cir.1984).

Gruesome photographs are the subject of appellant's second issue on appeal. In all, eight photographs of the victim's body were introduced into evidence. The victim's body was partially decomposed, because the body had been submerged in the pond for almost a month. At the trial below, the appellant's attorney only objected to two photographs, exhibits nine and ten. While on appeal, the appellant's argument includes all the photographs, we can only address her arguments on exhibits nine and ten, since she did not properly object to the other photographs. As we have stated countless times, we will not consider arguments raised for the first time on appeal. See, e.g., Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).

We have held that admissibility of photographs rests within the sound discretion of the trial court, and its decision will not be reversed without a showing of clear abuse of discretion. Morris v. State, 302 Ark. 532, 792 S.W.2d 288 (1990)....