Decker v. State, CR

• Decision Date: 01 October 1973
• Docket Number: No. CR,CR
• Citation: 499 S.W.2d 612,255 Ark. 138
• Parties: William Wayne DECKER, Appellant, v. STATE of Arkansas, Appellee. 73--8.
• Court: Arkansas Supreme Court

Page 612

499 S.W.2d 612

255 Ark. 138

William Wayne DECKER, Appellant, v.STATE of Arkansas, Appellee.

No. CR 73--8.

Supreme Court of Arkansas.

Oct. 1, 1973.

William C. McArthur, Little Rock, for appellant.

Jim Guy Tucker, Atty. Gen. by O. H. Hargraves, Deputy Atty. Gen., and Richard Mattison, Asst. Atty. Gen., Little Rock, for appellee.

HARRIS, Chief Justice.

William Wayne Decker, appellant herein, was convicted in the Pulaski County Circuit Court of robbery allegedly occurring on January 21, 1970.The jury, under the Habitual Criminal Act, fixed his punishment at twenty-one years confinement in the Arkansas Department of Correction.Two days later, Decker was convicted in the same court of the crime of grand larceny and his punishment was fixed by the jury at thirty years confinement.No appeal was taken from the judgment in either case.Attorney J. H. Cottrell represented Decker in both cases through appointment by the court.Thereafter, Decker filed a petition for a Writ of Habeas Corpus in the Pulaski County Circuit Court, and that court, treating the petition as a Criminal Procedure Rule I Petition, appointed new counsel to represent Decker.On hearing, the trial judge denied any relief, and from the judgment so entered, Decker appealed to this court.Three points were asserted for reversal as follows:

I.

The alleged confession of appellant was improperly admitted into evidence.

II.

The appellant was denied adequate representation of counsel at trial insofar as a key witness was not called.

III.

Appellant was denied his constitutional right to appeal his case.

The original cases were tried by an assigned judge, and following the Rule I hearing and before judgment was entered, the regularly presiding judge of the Pulaski County Circuit Court caused the record of the two trials to be transcribed for his use and information in determining the Rule I Petition.These transcripts were filed with this court along with the record of the Rule I hearing.On April 16, 1973, this court entered an order which inter alia provides as follows:

'Inasmuch as the complete record is now available, it is the order of this court that this appeal (from the denial of relief under Criminal Procedure Rule I) be treated as an appeal from the original convictions, and the clerk of the court is directed to notify counsel for appellant that he may present and brief any additional points wherein it is felt that the trial court committed reversible error.The clerk shall likewise notify the Attorney General to reply to appellant's brief, said briefs to be submitted in compliance with Rule Eleven of this court.'

These briefs have now been filed and the case is ready for disposition.The following additional points for reversal have been raised.

IV.

Defendant's requested instruction re alibi was improperly refused.

V.

Defendant's motion for dismissal of grand larceny charge(No. 72070) on grounds of double jeopardy was improperly denied.

VI.

Defendant's motion for a directed verdict was improperly denied.(No. 72070).

VII.

Defendant's objection to reference of the robbery in the trial for grand larceny was improperly overruled.

VIII.

Defendant's confession was improperly admitted in rebuttal.(No. 72070).

IX.

Defendant's confession was inadmissible and improperly admitted because he was not properly advised of his constitutional rights.

Two other points are raised but they are repetitious of the first two points asserted in the Rule I hearing.

We proceed to a discussion of the contentions for reversal.

I.

This allegation refers only to the trial of Decker on the charge of grand larceny as the confession was not used in the robbery case.The record reveals that appellant was arrested on July 16, 1971 by a North Little Rock policeman, subsequently brought to the Little Rock Police Department, and questioned by City Detectives Larry Dill and Bill Johnson.Decker testified that he had been wounded before his arrest ¹ and was suffering from gunshot wounds through his foot, side, and arm, and that he had been taken to Memorial Hospital in North Little Rock where he was treated, taken the next day to Medical Center where the gunshot wounds were cleansed and he was given a prescription to kill the pain.He said that he was beaten and 'slapped around' by the officers before signing a waiver ²; that he was beaten with a pistol by Dill, and finally signed the rights waiver about 1:30 in the morning; subsequently he stated that it was about 10:00 P.M. Decker also said that he asked for an attorney but the request was denied.As for the statement made, appellant said that he signed his name on a blank sheet and initialed four blank pages, being told that the officers were getting a specimen of his signature.Decker's statement is somewhat conflicting and accordingly confusing.Detective Dill testified that Decker was brought to the Little Rock Police Department and advised of his rights about 5:15 P.M.; that appellant stated he understood, and signed the waiver in the presence of the witness and Detectives Jones and Johnson.Dill stated that Decker was not beaten, threatened, nor mistreated in any manner; that the latter was entirely normal and aware of what he was doing when he signed the waiver.The witness said that when Decker would make a statement, the information given would be checked out and that he was questioned, off and on, ³ until approximately 1:45 A.M., at which time he made a complete statement which was reduced to writing by Detective Jones.The witness then read the written statement to Decker who signed it at the bottom of the third page and initialed it at the top and bottom of the first and second pages.

The court conducted a hearing in chambers on the question of whether the statement had been voluntarily given, and after hearing the evidence, ruled that it was admissible.In Mullins v. State, 240 Ark. 608, 401 S.W.2d 9, this court, in passing on the same contention now raised by Decker, stated:

'All of appellant's contentions as to the confession, including the advisement of his right to counsel, were examined by the trial court in its hearing in chambers.The conflicting testimony between appellant and the officers made a question of fact to be decided by the court pursuant to Act 489 of 1965.The court made a finding adverse to appellant and admitted appellant's confession in evidence.We have concluded that there is substantial evidence in the record to support the trial court's determination and said determination will not be disturbed here on appeal.'

We hold that there was substantial evidence to support this finding.

II.

Decker's defense was based upon an alibi, i.e., he claimed to have been in Jackson, Mississippi at the home of a sister at the time the alleged crime occurred.However, when both the robbery and grand larceny cases were called, counsel for appellant announced that he was ready; no request was made for a continuance nor was there any contention that there was an important witness for the defense who could not be present.At the trial on the charge of robbery, Donald Decker, brother of appellant, testified that 'around the 17th'(January, 1970), Decker, together with his wife and child, mother and father, went to Jackson, Mississippi to visit Decker's sister and stayed five or six days.

At the trial on the charge of grand larceny, Effie Decker, mother of appellant, testified that she and her husband, appellant and his wife and baby, and David Bryant, all went to Jackson to visit her daughter and appellant's sister, Charlene Graham, on January 17 and returned after staying there five days; that appellant was there the entire time, the family traveling in appellant's automobile.David James Bryant, a cousin of appellant, also testified to those facts.The alleged error is based on the fact that the sister, Charlene Graham, who had in the meanwhile moved to California, was not present at either the robbery or grand larceny trials.In the Rule I hearing Mrs. Graham did testify, stating that the relatives heretofore mentioned came to her home on the 16th or 17th and remained there either five or six days.She said that appellant stayed there the entire period of time.The witness had since moved back from California to Little Rock.

We find no merit in this contention for several reasons.In the first place, no effort was made to obtain the witness and Decker himself testified that he really didn't think it was necessary for her to be present since he had two other witnesses to testify to the same facts.This apparently was a decision made by the appellant himself rather than by counsel.At any rate, no motion for continuance was made and Decker accordingly has waived any right to object.Not only that, but since the mother and other relatives did testify to the alibi, the evidence of the sister would only have been cumulative.

III.

As earlier stated, this appeal is being treated as an appeal from the original convictions.

IV.

This point relates to the alibi defense.In the robbery case, the trial court was requested to give an instruction offered by the defendant on the defense of alibi, which was refused; however, no error was committed for the jury was given an instruction (the court giving its own instruction), specifically mentioning the defense of alibi, and telling the jury that such a defense is as proper and legitimate if proved as any other and all the evidence bearing upon this point, along with all the evidence, should be carefully considered by the jury and 'if the jury have a reasonable doubt as to whether the defendant was there when the crime was committed they should give the defendant the benefit of the doubt and find him not guilty.'This was a correct instruction and appellant can have no legitimate complaint that his own instruction was not given.

In the grand larceny case, no instruction was requested on this phase.We, of course, have held many times...