Dyas v. State
| Decision Date | 19 July 1976 |
| Docket Number | No. CR--75--192,CR--75--192 |
| Parties | Jimmy Lee DYAS, Appellant, v. STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
Jimmy Lee Dyas, pro se.
Jim Guy Tucker, Atty. Gen. by Terry Kirkpatrick, Asst. Atty. Gen., Little Rock, for appellee.
Appellant Jimmy Lee Dyas was convicted by a jury of capital felony murder for his part in the killing of Curtis Eugene Zachry, husband of Carolyn Dianne Zachry, who has likewise been convicted of the murder in a separate trial and whose appeal has earlier come before this court. See Zachry v. State, 260 Ark. ---, 538 S.W.2d 25 (1976). Dyas received a sentence of life imprisonment without parole. From this conviction and sentence Dyas took his original appeal.
Following an order from this court reinvesting the trial court with jurisdiction, appellant filed a motion in the circuit court of Little River County for new trial on 6 January 1976. The motion was denied and appellant has brought a supplemental appeal. All told, appellant offers fifteen points for reversal, none of which, we have concluded, merits reversal. They are considered in the order in which they were presented, the first three being treated together for convenience. We will not review testimony except as to becomes necessary to treat specific points because it is very similar to the testimony summarized in Zachry v. State, supra. The Court Erred in Admitting Into Evidence Statements Made By A Witness For The State, Before The Jury, Identifying The Source Of Two Rings Belonging To The Murder Victim, The Court And The State Being Well Aware That The Rings Had Been Turned Over To The Court And Law Enforcement Officials For The State By Appellant's Defense Attorneys.
The Court Erred In Allowing The Prosecuting Attorney For The State To Comment Upon The Source Of The Two Rings Belonging To The Murder Victim In Violation of Appellant's Attorney-Client The Court Erred In Admitting Into Evidence Statements Made By A Witness For The State Concerning The Alleged Source Of Two Rings Belonging To The Murder Victim, Because The Statements Constituted Hearsay.
The testimony upon which all of these points hang was given during the state's redirect examination of Sgt. Carroll Page, who investigated the murder. However, the first mention of the rings was made by appellant's principal attorney during his cross-examination of Page. It came about thus:
Q. (Cont'd by Mr. Boyd Tackett, Sr.) Do you know of anything that I have done during your investigation since the 9th day of the month, since the 9th day of January that wasn't trying to cooperate with you and the other officers. Have I tried to keep anything from you?
A. You furnished some information. Some good and some--
Q. I even brought you the two rings taken off the dead man, didn't I?
A. Yes, sir.
Q. MR. BOYD TACKETT, SR.:
Judge, if this is wrong, you can tell me, and I will stop.
Yes, sir.
He pursued the line of questioning despite the fact the items mentioned were not in evidence and finally drew an abjection from the state. The record follows:
Q. (Cont'd by Mr. Boyd Tackett, Sr.) All right, there is evidence here that there was a key ring taken off the dead body and there was two diamond rings taken off the dead body. They've been introduced.
MR. GEORGE STEEL, JR.:
No, sir, they have not.
MR. BOYD TACKETT, SR.:
They have not?
Q. (Cont'd by Mr. Boyd Tackett, Sr.) Well, anyway, before it gets to that, there's testimony that there was a watch taken off the body. Have you ever found the watch?
MR. GEORGE STEEL, JR.:
Judge, I submit that this is not proper cross examination. We haven't even gone into that yet.
He is making him his own witness, Mr. Steel. When he does that, he is bound by his answers.
MR. BOYD TACKETT, SR.:
That's right, I am bound by his answers.
All right.
On redirect examination, Sgt. Page testified without objection to an explanation allegedly given him by Tackett about how he came into possession of the rings.
Q. I show you two diamond rings, Officer Page, and I ask you, sir, are those the rings that Mr. Tackett refers to that he gave to you, sir?
A. Yes, sir.
Q. And have you in the course of your investigation determined that those rings belonged to the deceased, Eugene Zachry?
A. I have, sir.
Q. I believe Mr. Tackett has stated that he turned those rings over to you, is that correct, sir?
A. That is true.
Q. When he did that, Officer Page, where did he say he obtained them?
A. From Jimmy Dyas' wife, Bunkie.
Q. Now, did he go any further than that, Officer Page? Did he say where she got them?
A. From a lock box--safety deposit box in the bank.
Q. Now, Sgt. Page, I ask you, sir, have you since that time attempted to determine of your own knowledge where the rings came from?
A. Yes, sir.
Q. Have you been able to determine anything different than what Mr. Tackett told you on the might he gave them to you?
A. I've been told a different story by Mr. Tackett--one or more different stories.
And, on recross-examination, appellant's attorney sought to elicit a different version of their exchange, as follows:
Q. Now, Carroll, I want you to remember something real close. When you asked me where I got these rings, didn't I tell you, 'Carroll, I can't tell you that.'
A. You did not, sir.
Q. I told you that I got them from Bunkie?
A. Yes, sir.
Q. Now, Carroll, don't you know I didn't tell you that?
A. Yes, you did, sir.
MR. GEORGE STEEL, JR.:
Judge, if Mr. Tackett made Sgt. Page his witness for this purpose, I submit that he can't cross examine him.
MR. BOYD TACKETT, SR.:
I submit I am entitled to get on that witness stand and tell the truth.
Not at this time, Mr. Tackett.
MR. BOYD TACKETT, SR.:
I know.
Q. (Cont'd by Mr. Boyd Tackett, Sr.) I gave you those rings, and when I handed you those rings, I was in the hall with J. O. Moore present, didn't you ask me where those rings came from and I said, 'Carroll, I can't tell you, I represent three people.'
A. You told me this at Judge Steel's house, sir.
Q. Well, I know that, but I didn't tell you that at Judge Steel's house. I told you that at the jailhouse, didn't I?
A. No. sir.
Q. When I handed you those rings after I identified them through Dianne that those were Eugene's rings, didn't you turn around and say, 'Boyd, where did you get those rings'? And I said, 'Carroll, I can't tell you'?
A. Actually, I received the rings at Judge Steel's house and had them in my possession, handed them to you when we went into the jail and you showed them to Dianne and then you handed them back to me. I signed a receipt for them at Judge Steel's house at which time you told me that you got them from Mrs. Dyas.
In support of his first point for reversal appellant seeks to analogize the case of State v. Olwell, 64 Wash.2d 828, 394 P.2d 681, 16 A.L.R.3d 1021 (1964), wherein the court decided that, where an attorney must and does surrender evidence to be used in the prosecution of his client, and the state attempts to introduce such evidence, it should take precautions to make certain the source of the evidence is not disclosed to the jury where it is within the protection of the attorney-client privilege. But, to be protected as a privileged communication, the court concluded, information or objects acquired must have been communicated or delivered to the attorney by his client and not merely obtained by the attorney while acting on behalf of his client, for if the evidence, in Olwell a knife, were obtained from a third person with whom there was no attorney-client relationship, the communication would not be privileged. Thus, according to Olwell, the privilege applies only to evidence if it is received by the attorney from his client and, if this is the case, the concern is that the immediate source of the evidence be held in confidence.
Page's testimony indicated that Attorney Tackett's source was not the appellant. Therefore, Olwell is readily distinguishable. But, even if the privilege is stretched to protect evidence given to a defendant's attorney by defendant's spouse, Olwell is still inapt. 1 It was appellant's attorney who opened the door to the examination of the witness about the source of the rings by his questions and disclosures during his cross-examination. See MeDonald v. State, 165 Ark. 411, 264 S.W. 961; Smith v. State, 172 Ark. 156, 287 S.W. 1026. If there was any violation of the attorneyclient privilege, it was by appellant's attorney, who disclosed that he was the source of the rings by his questioning of Page, and who revealed to Page how he in turn had acquired them, if he made the statement attributed to him by Page.
Following the prosecutor's objection that appellant's attorney was exceeding the limits of cross-examination, appellant's attorney agreed that he had made Page his own witness and would be bound by his answers. See, St. Louis, I, M & S. Ry. Co. v. Raines, 90 Ark. 398, 119 S.W. 665. He did not object at any time during Page's testimony on redirect examination. Rather, he chose to question the witness about that testimony and sought to elicit a retraction. And, in spite of the fact that Page had become his own witness on the matter of the rings, the court suffered him to attack Page's redirect testimony, thus, in effect, permitting appellant to confront the witness and seek to undermine his credibility. We emphasize that the record discloses that the rings had not been introduced in evidence and their whereabouts had not been mentioned, prior to the examination of Page on the subject by appellant's attorney.
Finally, appellant's attorney expressed a wish to testify on the matter himself and raised an objection based on hearsay only the next day, as part of a motion for mistrial, after nine other witnesses had testified and Sgt. Page had twice been recalled to the witness stand. This was decidedly too late. Montgomery v. First National Bank of Newport, 246 Ark. 502, 439 S.W. 299....
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