Davis v. State, CR

• Decision Date: 09 November 1987
• Docket Number: No. CR,CR
• Citation: 739 S.W.2d 150,293 Ark. 472
• Parties: Royce Everette DAVIS, Appellant, v. STATE of Arkansas, Appellee. 87-79.
• Court: Arkansas Supreme Court

Page 150

739 S.W.2d 150

293 Ark. 472

Royce Everette DAVIS, Appellant, v. STATE of Arkansas, Appellee.

No. CR 87-79.

Supreme Court of Arkansas.

Nov. 9, 1987.

Larry D. Vaught, Little Rock, for appellant.

Clint Miller, Asst. Atty. Gen., Little Rock, for appellee.

HAYS, Justice.

Appellant Royce Davis was convicted of murder in the first degree and possession of a controlled substance. He was sentenced to forty years for murder and ten years for possession. On appeal he challenges the validity of an arrest warrant issued for his arrest and the rejection by the trial court of an instruction on the defense of insanity.

On April 23, 1986, Mike Hardin was shot and killed in a beauty salon in Little Rock. The next day, based on descriptions of eyewitnesses and on information supplied by a friend of the appellant, the Little Rock police obtained an arrest warrant for appellant's arrest for first degree murder. The warrant was issued by the clerk of the Little Rock Municipal Court on the basis of an information filed by the prosecutor in accordance with A.R.Cr.P. Rule 7.1(c). Pursuant to the warrant, appellant was arrested at a Little Rock motel and charged with murder and possession of cocaine. He moved to suppress the evidence based on an invalid arrest warrant and the motion was denied.

Appellant first argues the trial court erred by denying his motion to suppress evidence which was seized pursuant to an invalid arrest warrant, issued on the basis of A.R.Cr.P. Rule 7.1(c). Rule 7.1(c) provides:

The clerk of a court or his deputy may, when authorized by the judge of that court, issue an arrest warrant upon the filing of an information or upon affidavit sworn to by the complainant and approved by the prosecuting attorney. Any such information or affidavit shall be indorsed by the prosecuting attorney approving the issuance of the warrant.

Appellant argues that under Shadwick v. City of Tampa, 407 U.S. 345, 92 S.Ct. 2119, 32 L.Ed.2d 783 (1972) and as more recently discussed in Fairchild v. Lockhart, 675 F.Supp. 469 (D.C.Ark.1987), constitutional requirements are such that a warrant issued under Rule 7.1(c) must be issued by a detached, neutral officer who makes an independent determination of probable cause. We agree and we so held in Webb v. State, 269 Ark. 415, 601 S.W.2d 848 (1980), as the district court noted in the Fairchild case.

Here the warrant requirements were not met. The arrest warrant shows only that it had been issued by the clerk of the Little Rock Municipal Court upon the presentation of a prosecutor's information. There is nothing to indicate the warrant was issued or approved by a judicial officer as we found was necessary in Webb, supra, and we cannot assume that such was the case. Id.

Nor can we expand the holding in Shadwick, supra as the state suggests. There, the court found on the basis of specific statutes and procedures that a clerk was competent and sufficiently detached and neutral to make probable cause determinations on "common offenses" covered by a municipal code. At issue here is the power of the clerk to have general authority over arrest warrants. Given our holding in Webb, we are unwilling to expand the holding in Shadwick beyond the circumstances of that case in order to find the warrant invalid in this case. Furthermore, the supporting affidavit in this case was insufficient to find probable cause. The statement in its entirety provided:

Acting on information from a variety of witnesses, the defendant was seen at the parking lot, told people he was going to the beauty shop, and was clothed in a manner and carrying a briefcase similar to that of the suspect.

Without further circumstances surrounding the murder, the statement tells us little. The affiant may have given further information in sworn testimony at the time of the issuance of the warrant which would have made the above statement significant for determining probable cause. A.R.Cr.P. Rule 13.1; Lunsford v. State, 262 Ark. 1, 552 S.W.2d 646 (1977). However, there is nothing in the record reflecting such testimony and the burden is on the state to produce the necessary record to show the affidavit is in compliance with the law. Lunsford, supra. We find the warrant was not issued pursuant to the requirements of the law nor was it sufficient to support a finding of probable cause.

Whether the good faith defense under United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) is available to the state is not necessary to a determination of this case. See Fairchild, supra. For even if the warrant must fail, the arrest itself is valid as it was supported by probable cause. Allen v. State, 277 Ark. 380, 641 S.W.2d 710 (1982). Detective Ivan Jones obtained the arrest warrant. His information came primarily from Ricky Croon, a friend of appellant. Jones obtained additional information from witnesses at the scene of the crime and from an undercover officer.

The murder took place about 11:00 a.m. at a beauty salon in the Colony West Shopping Center where the victim, Mike Hardin, was employed. The day after the shooting Ricky Croon contacted the police department to say that he had gone to appellant's house off Barrow Road about 10:00 a.m. the morning of the murder. Appellant asked Croon to take him to the shopping center which he did. Appellant told Croon he would be about twenty minutes and said "something about a beauty shop around the corner." Croon did some shopping and returned to his car about twenty to thirty minutes later and appellant was waiting for him. Croon then dropped him off at La Quinta Motel. Croon stated that earlier appellant had told him he thought his wife was having an affair with Mike Hardin. Croon thought appellant "wanted to get even." Croon described appellant as a very average looking black man in his mid-thirties, about 145 lbs., 5'6""--5'7"" and light-complected. On the day of the shooting, Croon said appellant was wearing gray warm-up pants and was carrying a black briefcase.

Witnesses to the murder gave varying descriptions of the assailant, but the general composite description was of a black man in his twenties to thirties, light or medium complected, about 150-170 lbs, 5'5"" to 5'10"" tall and wearing gray clothes or a gray warm-up suit and carrying a black briefcase.

Officer Tappan was an undercover narcotics agent and talked to Jones about 8:00 o'clock on the evening of the murder. Tappan told Jones he thought appellant was a suspect because of drug usage, because of conversations Tappan had had with appellant's wife, because appellant matched the description of the suspect given by witnesses, and because appellant frequently carried a black briefcase. In sum, the police knew appellant was taken to the shopping center at about the time of the murder, that appellant indicated he was going to the particular shop where the murder occurred, that descriptions of the assailant matched that of appellant, specifically the clothes he was wearing that day, plus the black briefcase he had with him at the time. Coupled with the foregoing was the possible motive, i.e. the victim's involvement with appellant's wife. The undercover agent had expressed interest in appellant as a suspect based on conversations he had had with appellant's...