Dendy v. State, CA CR 05-67 (AR 11/30/2005)
| Decision Date | 30 November 2005 |
| Docket Number | CA CR 05-67 |
| Parties | Elery DENDY, Appellant v. STATE of Arkansas, Appellee |
| Court | Arkansas Supreme Court |
Appeal from the Garland County Circuit Court, [CR2004-144-IV], Honorable Edward T. Smitherman, Jr., Circuit Judge, Reversed and Remanded.
A Garland County jury convicted appellant Elery Dendy of nine counts of forgery in the second degree, and he was sentenced to the Arkansas Department of Correction for ninety years. The appellant argues on appeal that the trial court erred in denying his motions to suppress evidence and a statement, as well as his motion for a directed verdict. We agree that the trial court erred in denying the appellant's motions to suppress and reverse and remand. On January 14, 2004, officers of the Hot Springs Police Department were in the area of the home of appellant Elery Dendy for the purpose of locating a stolen car and a suspect in the theft. The appellant was not a suspect. While the police officers were questioning an individual who was standing in the appellant's yard concerning the theft of the car, the appellant came outside his home and stood on his front porch. Detective Chapmond testified that he observed that the appellant had paper in his hand when he stepped outside his door—paper that Chapmond identified as blank stock often used for the printing of checks. When questioned as to the purpose of the check stock, the appellant told Chapmond that he was printing gift certificates for a local company and provided the phone number of the company for verification. Another Hot Springs police officer testified that this information was indeed verified in a phone call to the company. The appellant then additionally offered to show the detectives his "artwork" and went inside his home. Chapmond followed the appellant inside the home, testifying variously that he "interpreted," "assumed," or deduced by implication that the appellant invited him into the home. The appellant denies that he invited the detective inside his home, pointing to the fact that as a four-time convicted felon he was not in the habit of inviting police officers into his home. He instead asserted at trial that his intent was simply to retrieve a printed gift certificate to additionally convince the detectives of his legitimate use of the check stock.
Chapmond testified that after he entered the home he observed a check partially inside an envelope and several crumpled checks in a trash can. He then obtained written consent from the appellant to search the home. Further search revealed what Chapmond testified appeared to be fake identification cards, which he said may have included those in the name of Bill Clinton, James Dean, Marilyn Monroe, Eddie Murphy, Elvis Presley, and perhaps Richard Nixon.
The appellant's motion to suppress evidence seized pursuant to the warrantless entry was denied by the trial judge after a hearing, and the appellant was convicted in a jury trial of nine counts of forgery in the second degree. The jury was presented with evidence of the appellant's prior convictions and sentenced him as a habitual criminal to a term of thirty years and a one thousand dollar fine for each of the nine counts. The trial judge ran three of these counts consecutively and the remaining six counts concurrently with the first three—for a total period of incarceration of ninety years. Appellant presents three arguments on appeal: 1) that the trial court erred when it denied the appellant's motion to suppress items seized during a search of his home; 2) that the trial court erred in allowing into evidence a statement taken from the appellant at the Hot Springs Police Department; 3) that the trial court erred in denying the appellant's motion for a directed verdict. We agree that the trial court erred when it denied the appellant's motion to suppress the evidence and statement and therefore reverse and remand.
Although the appellant's last point on appeal concerns the trial court's denial of his motion for a directed verdict, we address this point first due to double jeopardy considerations it is a "general rule that, when an appellant challenges the sufficiency of the evidence, we address that issue prior to all others." Misskelley v. State, 323 Ark. 449, 458, 915 S.W.2d 702, 707 (1996) (citing Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984)). When a defendant makes a challenge to sufficiency of evidence of the evidence on appeal, we view the evidence in the light most favorable to the State. Baughman v. State, 353 Ark. 1, 110 S.W.3d 740 (2003). The test for determining sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial; substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture; only evidence supporting the verdict will be considered. Id. When a challenge to sufficiency of the evidence is reviewed, the conviction will be affirmed if there is substantial evidence to support it. Id.
The appellant specifically argues that the State failed to prove that he possessed forged checks with the intent to defraud, and that without the establishment of this essential element there was not sufficient evidence to sustain his conviction. The appellant points to fact that some of the checks were found in a wastebasket and that "one does not discard checks if he intends to use them to defraud others." We find this argument unconvincing. In this case appellant made a statement to the police admitting that he had been engaged in a forgery scheme and that his price for forged checks varied according to the amount of the check. A person forges a written instrument if he "with purpose to defraud he draws, makes, completes, alters, counterfeits, possesses, or utters any written instrument that purports to be or is calculated to become or to represent if completed the act of a person who did not authorize that act." Ark. Code Ann. § 5-37-201(a) (Repl. 1997). We find that there was substantial evidence to sustain the appellant's conviction based on his confession to police, combined with the forged checks found in his home.
We now turn to appellant's remaining points on appeal concerning the denial of his motions to suppress the evidence seized in the search of his home and his subsequent statement. In reviewing the trial court's denial of a suppression motion by the trial court, we make a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicions or probable cause, giving due weight to inferences drawn by the trial court. Davis. State, 351 Ark. 406, 94 S.W.3d 892 (2003).
A warrantless entry into a private home is presumptively unreasonable under the Fourth Amendment and Article 2, § 15 of the Arkansas Constitution. Welsh v. Wisconsin, 466 U.S. 740 (1984); Katz v. United States, 389 U.S. 347 (1967); Griffin v. State, 347 Ark. 788, 67 S.W.3d 582 (2002); Scott v. State, 347 Ark. 767, 67 S.W.3d 567 (2002); Butler v. State, 309 Ark. 211, 829 S.W.2d 412 (1992). This presumption of unreasonableness may be overcome if the law enforcement officer obtained the consent of the homeowner to conduct a warrantless search. See Holmes v. State, 347 Ark. 530, 65 S.W.3d 860 (2002) (citing Ark. R. Crim. P. 11.1; Hillard v. State, 321 Ark. 39, 900 S.W.2d 167 (1995)). The Arkansas Supreme Court, however, has established that the State has a heavy burden to prove by clear and positive testimony that consent to search was freely and voluntarily given. Holmes, supra; Norris v. State, 338 Ark. 397, 993 S.W.2d 918 (1999); Scroggins v. State, 268 Ark. 261, 595 S.W.2d 219 (1980). Any consent given must be unequivocal and may not usually be implied. Holmes, supra; Norris, supra (citing U.S. v. Gonzalez, 71 F.3d 819 (11th Cir. 1996)); Stone v. State, 348 Ark. 661, 74 S.W.3d 591 (2002). Further, the State must prove by clear and positive testimony that the consent to enter and search was unequivocal and specific. See id.; State v. Brown, 356 Ark. 460, 156 S.W.3d 722 (2004).
The Arkansas Supreme Court's decision in Holmes addressed the issue of a warrantless entry into a home and whether consent was given based on implied or inferred consent. The court in Holmes examined the testimony of a law enforcement officer who admitted that he did not receive a verbal invitation, but instead that an individual "opened the door and stepped back; she may have nodded." Holmes, 347 Ark. at 540, 65 S.W.3d at 865—66. The court held that this testimony was not clear and positive, and therefore it was insufficient to prove that consent was given; the trial court erred in denying a motion to suppress evidence. Id. The State argues in its brief that the holding of Holmes is that the burden of showing consent to enter a residence by clear and positive testimony requires "some verbal communication of permission" and that this burden is met here by the testimony of Detective Chapmond. The State is wrong on both counts. First, this is not an accurate statement concerning the holding of Holmes on consent to enter a residence. The court in Holmes did not explicitly require verbal communication of permission. The court stated that there was "uncertainty and lack of clarity" intended by non-verbal actions in that case, and without clear and positive testimony that provided clarity beyond inference, the trial court erred in not granting a motion to suppress. Id. Second, Detective Chapman's testimony did not demonstrate verbal communication of permission to enter in the present case.
It is the State's burden to prove by clear and positive testimony that consent to enter the appellant's home was unequivocal and specific. Yet, the consent asserted by the State here is, like Holmes, based solely on inference.
Detective Chapmond's testimony at both...
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