Fuller v. State, 5410

• Decision Date: 21 April 1969
• Docket Number: No. 5410,5410
• Parties: Milford FULLER and Leo Walton, Appellants, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 801

439 S.W.2d 801

246 Ark. 704

Milford FULLER and Leo Walton, Appellants, v. STATE of Arkansas, Appellee.

No. 5410.

Supreme Court of Arkansas.

April 21, 1969.

Rehearing Denied May 19, 1969.

Donald J. Adams, Harrison, for appellant Walton.

Moore & Brockmann, Harrison, for appellant Fuller.

Joe Purcell, Atty. Gen., Don Langston, Asst. Atty. Gen., Little Rock, for appellee.

JONES, Justice.

This appeal arises from the re-trial of Walton and Fuller v. State, 245 Ark. 84, 431 S.W.2d 462, which was reversed by this court on September 9, 1968, and remanded to the Boone County Circuit Court for a new trial.

The facts set out in that case are the same as those in the case at bar and are reiterated briefly as follows: Law enforcement officers from Missouri, accompanied by local officers, made searches of certain premises in and near Harrison in Boone County, Arkansas, and seized numerous items of personal property which had been stolen in Missouri. The principal items involved consisted of men's suits and television sets, and the items were seized under search warrants obtained in Boone County. The warrants described the premises to be searched and specifically described the property searched for. During the search of the premises, the appellant Walton directed the officers to his living quarters and pointed out to them a color television and a record player which were not designated objects of the search, but which were later determined to be stolen property and seized under voluntary relinquishment by Walton.

In the first trial all of the stolen property seized was admitted in evidence. The appellants were found guilty by the jury and sentenced by the court to four years in the penitentiary. On appeal, this court held that the warrants were defective under which the searches were conducted and that the trial court erred in admitting into evidence the objects seized thereunder. The case was reversed and remanded for a new trial. At the second trial, from whence comes this appeal, the appellants were again found guilty and sentenced on the jury verdict to ten years in the penitentiary. On this appeal from their second conviction, the appellants rely on the following points:

'1. The court erred in denying defendants' motions to suppress all evidence, statements, and other matters obtained as the result of illegal searches and seizures and their motions to suppress evidence under the doctrine of the 'fruit of the poisonous tree.'

2. The court erred in denying defendants' motion to suppress defendants' statements and in permitting testimony and evidence concerning the statements to be introduced into evidence.

3. The court erred in accepting the verdict of the jury and sentencing the defendants to a longer term in the Arkansas Department of Corrections than is permissible under law.

4. The court erred in admitting into evidence the Zenith television set and Zenith record player, the possession of which the defendants were charged and in failing to direct a verdict of acquittal of the appellant at the close of the evidence in the case.'

Appellants' first and fourth points have already been decided adversely to their contention in Walton and Fuller v. State, supra, and our decision there becomes the law of this case as to the admissibility of evidence as to the television set and the record player which defendant 'voluntarily' pointed out to the officers at the time of the second search. In that case we held this evidence to be admissible regardless of the fact that the voluntary disclosure was made at a time when the search was being conducted under the authority of the defective warrant. On this point we said:

'* * * Walton, in the presence of Fuller, voluntarily advised Sheriff Hickman of Boone County and Sgt. Rife that there was a quantity of other property besides the television sets for which the search was being conducted, and that he wanted to show them where it was. He told them that he had certain suits of clothing and the television set and record player upstairs in his living quarters.

* * * Under these circumstances, the property found in the Walton living quarters and his statements about them were not come about through exploitation of an illegal search. * * *

For the reasons above set out, the television set and record player were admissible in evidence.' (Emphasis supplied.)

Appellants' second point is likewise without merit for the same reason. In Walton and Fuller v. State, supra, this issue was resolved in the discussion of the evidence which was to be excluded as a result of the invalid search, wherein we said:

'* * * (I)dentification of property which was inadmissible should have been excluded by the trial court as 'fruit of the poisonous tree,' * * *. Furthermore, statements by both Walton and Fuller made in the prosecuting attorney's office, except for those portions relating particularly to property not listed in the second search warrant about which Walton volunteered information, were inadmissible as 'fruit of the poisonous tree."

Appellants argue that the statements made to the prosecuting attorney were inadmissible since appellants did not waive their constitutional rights under the holding of Miranda v. Arizona, 384 U.S. 436, 448, 86 S.Ct. 1602, 16 L.Ed.2d 694. This point also was decided adversely to appellants' contention in Walton and Fuller v. State, supra, when we said:

'Although objection was made to the statements made in the prosecuting attorney's office as being inadmissible under the rule announced in Miranda v. State of Arizona, 384 U.S. (436) 448, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), we find adequate evidence to support the trial judge's finding that the warnings required by that rule were given, and that the statements were voluntary and made under waiver of the rights enumerated in the above case. Neither Walton nor Fuller was in custody at that time on any charge. Before interrogation, both were advised of their rights as to the giving of statements. There is nothing to indicate that either was not intelligent enough to understand the statement of his rights. Nor does it appear that either was not conscious that he was waiving them in answering questions. Walton actually signed a written waiver, on which his constitutional privilege against self-incrimination and right to counsel are clearly and fully listed. There is no indication that this was not a free and voluntary act on his part. While Fuller did not sign the waiver, there is testimony that an identical statement of his rights was read to and by him before any interrogation, after which he expressed his willingness to answer questions. It was only after the interrogation was virtually concluded that he was asked to sign a written waiver of these rights, and he then stated that he wanted a lawyer 'if it got down to where he had to sign something.' In addition to the warnings at the time of the interrogation of Walton and Fuller in the prosecuting attorney's office, the evidence that both were advised of these rights at the time of the search is convincing.'

As to their third point for reversal, appellan...