DuBois v. State
| Decision Date | 07 July 1975 |
| Docket Number | No. CR,CR |
| Citation | 527 S.W.2d 595,258 Ark. 459 |
| Parties | Anderson Gene DuBOIS, Appellant, v. STATE of Arkansas, Appellee. 74--163. |
| Court | Arkansas Supreme Court |
Elton A. Rieves, III, West Memphis, for appellant.
Jim Guy Tucker, Atty. Gen. by Alston Jennings, Jr., Asst. Atty. Gen., Little Rock, for appellee.
Appellant, Anderson Gene DuBois, was charged with the offense of murder in the first degree for the shooting and killing of Mack Crawford Howell during the early hours of June 14, 1971 in West Memphis, Arkansas. Appellant was first tried and convicted of this charge in March, 1972 and sentenced to life imprisonment. On appeal to this Court that conviction was reversed and remanded for a new trial. See DuBois v. State, 254 Ark. 543, 494 S.W.2d 700 (1973). Appellant was tried for the same offense in April, 1974 and was again convicted and sentenced to life imprisonment. It is from the second conviction and sentence that Appellant brings this appeal.
The facts of this particular criminal act have been reviewed and outlined by this Court on several previous occasions and an additional review would add nothing to this opinion. See DuBois v. State, supra, and Austin v. State, 254 Ark. 496, 494 S.W.2d 472 (1973). For this reason only the facts necessary for a review of Appellant's contentions on appeal will be mentioned.
Appellant first contends that the trial court erred in accepting twenty-two affidavits offered into evidence by the State without requiring the State to produce its affiants for an opportunity of cross-examination as to their credibility.
Appellant complied with provisions of Ark.Stat.Ann. Sec. 43--1502 and filed his Motion for Change of Venue contending Appellant could not get a fair trial in Crittenden County, Arkansas. With the Motion were two affidavits of persons meeting the statutory requirements stating that the minds of Crittenden County inhabitants were prejudiced against Appellant and would presume him guilty because of newspaper articles, pictures and television coverage.
Appellant presented numerous newspaper articles and also put his two witnesses on the stand. The State countered Appellant's position by presenting the affidavits of twenty-two (22) persons who also met the statutory qualifications but none of these persons were called on for testimony in open court. Appellant objected to the introduction of the State's affidavits on the grounds that such procedure denied Appellant the right to cross-examine the affiants as to their credibility.
The cited statute makes no requirement that the necessary affiants be presented before the Court for oral examination, even though such is permissible.
It is a well established principle in this State that the burden is on the movant in a change of venue proceeding to make credible proof in support of the motion. Maxwell v. State, 236 Ark. 694, 370 S.W.2d 113. Furthermore, a motion for a change of venue is addressed to the sound discretion of the trial court (Bailey v. State, 204 Ark. 376, 163 S.W.2d 141) and unless the trial court has abused its discretion in overruling a motion for a change of venue, the order is conclusive on appeal. Bryant v. State, 95 Ark. 239, 129 S.W. 295; Ford v. State, 98 Ark. 139,135 S.W. 821; Adams v. State, 179 Ark. 1047, 20 S.W.2d 130; Stout v. State, 247 Ark. 948, 448 S.W.2d 636. There is a presumption that the persons who make affidavits in support of such a motion are credible until the contrary is shown. Spurgeon v. State, 160 Ark. 112, 254 S.W. 376 (1923). It is also well established that after the required affidavits are submitted the only question for the determination of the Court is whether or not the affiants are credible persons. Spurgeon v. State, supra.
This Court does not deny that Appellant may well have met his statutory burden of proof on the change of venue issue. However, it is also clear that the State countered with a considerable number of affidavits and met Appellant's proof in a very convincing manner. Considering this Court's review authority and the latitude of discretion of the trial court, we do not feel it was essential that the trial court require the State to produce its affiants in person. We do, however, recognize the trial court's authority to make this requirement if it feels such testimony is necessary and it has any doubt as to the credibility of the State's affiants. Accordingly, we find no error by the trial court in this regard.
We are also inclined to comment on the newspaper articles submitted into evidence in support of Appellant's motion. From this evidence it appears there were a number of articles referring to the beginning of the first trial and during those proceedings. These all appeared between February 29, 1972 and March 4, 1972, some two years before the second trial. Appellant's other articles introduced into evidence were published in September, 1972 during the Jerry Austin trial with short references to Appellant, these being about one and one-half years before the second trial. The most recent news release introduced was dated May 21, 1973, almost one year after the first trial and eleven months before the second trial, and referred to the reversal of the Appellant's first conviction, a matter we hardly feel would be prejudicial to Appellant.
Considering the publication dates of all the articles, we feel they were of little support to Appellant's position due to their remoteness in time to the second trial. See Walker v. Bishop, 8 Cir., 408 F.2d 1378.
For these reasons we do not feel the trial court abused its discretion in overruling Appellant's Motion for a Change of Venue or in failing to require the State to produce its twenty-two affiants for open court testimony and cross-examination.
Appellant next contends that the trial court erred in refusing to quash Appellant's oral and written statements given while in the custody of the West Memphis Police Department. Specifically, Appellant claims such statements were made involuntarily.
It is undisputed that Appellant was arrested about 3:00 or 3:30 p.m. in Savannah, Tennessee on June 27, 1971; held in the county jail until West Memphis officers arrived there at 9:30 or 10:00 p.m.; was transported to West Memphis, Arkansas, and arrived there about 12:00 or 12:15 a.m., June 28, 1971; after being advised of his constitutional rights from a Miranda form, gave a six page written statement between 12:24 a.m. and 4:00 a.m.; was allowed to sleep and eat breakfast; was again advised of his constitutional rights and again executed a waiver; gave an oral statement which was tape recorded about 10:00 a.m. These facts are established by the testimony of Appellant, two of the interrogating officers and the transcribed testimony of a third officer taken at the hearing before the first trial.
While we refer to the Appellant's confession, in truth the Appellant confessed to nothing more than having traveled to West Memphis, Arkansas with Jerry and Linda Austin and G. W. Stewart; being with these people at the Austin house during the early hours of June 14, 1971; being in the front right-hand seat of an automobile driven by G. W. Stewart when Jerry Austin brought Mack Howell to the car and witnessing Jerry Austin shoot Mack Howell. In other words, this was not a confession of guilt, but an exculpatory statement on Appellant's part.
For purpose of this appeal, however, these statements must be treated as confessions in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974.
Appellant moved that the statements be quashed and not allowed into evidence at the second trial and a Denno hearing was held by the trial court outside the presence of the jury and prior to the trial, in accordance with Ark.Stat.Ann. Sec. 43--2105. At the completion of this hearing the trial court ruled the statements to have been voluntarily made and allowed them to be presented to jury by the State.
Since the landmark Miranda case, this Court has on many occasions been called upon to judge various circumstances and factors involved in the taking or giving of confessions or incriminating statements. As a result of these occasions a number of factors upon which to base this finding have been enunciated. While not necessarily all inclusive, the following is a listing of factors to be considered by the trial court in making this determination:
1. Age and intellectual strength or weakness of the Defendant;
2. Manner in which he is questioned;
3. Presence or absence of threats of harm, fear of punishment, inducements or hopes of reward;
4. Delay between advice of rights and giving of confession.
It is against these factors that we have examined the written and oral statements of this Appellant.
Appellant was 26 years old at the time of the 1974 trial and had completed 9 years of school and received a general education development diploma while in military service. While Appellant contends he had been drinking prior to his arrest the testimony of himself and officers of the West Memphis Police Department seem to make it clear that the handwritten statement was not taken until some nine hours after his arrest and transfer from Savannah, Tennessee to West Memphis, Arkansas and the oral statement some ten hours after this arrest. These extended time periods and an examination of Appellant's handwriting and responses to questions lead us only to conclude that he was not under such an influence of intoxicants so as to render either or both statements involuntary. All testimony, including that of Appellant, indicates the West Memphis Police Department officers read the Miranda rights form to Appellant before each statement and, therefore, there was no delay between the advice and the giving of each statement. On these points, we see nothing to indicate anything other than that the statements were voluntarily,...
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