Graves v. State

• Decision Date: 04 March 1974
• Docket Number: No. CR,CR
• Citation: Graves v. State, 505 S.W.2d 748, 256 Ark. 117 (Ark. 1974)
• Parties: Willie GRAVES, Appellant, v. STATE of Arkansas, Appellee. 73--164.
• Court: Arkansas Supreme Court

Page 748

505 S.W.2d 748

256 Ark. 117

Willie GRAVES, Appellant, v. STATE of Arkansas, Appellee.

No. CR 73--164.

Supreme Court of Arkansas.

March 4, 1974.

Richard L. Slagle, Hot Springs, for appellant.

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

FOGLEMAN, Justice.

Appellant Willie Graves, an indigent, was convicted of robbery and sentenced to nine years in the penitentiary. For reversal appellant contends the failure of the Municipal Court of Hot Springs to appoint counsel to represent him at a preliminary hearing held on the day following his arrest, together with the subsequent denial by the Circuit Court of Garland County of his pretrial motion to remand for a preliminary hearing after counsel had been appointed, deprived him of the right to counsel at a critical stage in the criminal process. He also alleges that the judgment was not supported by the evidence and that a ring introduced into evidence was obtained as a result of an illegal arrest and a warrantless search.

Robert Simpson, a Springfield, Missouri, resident, who was in Hot Springs on business, gave the following account of the incident:

On the night of September 6, 1972, Simpson, who had been visiting bars and having a drink of beer in each, was approached in a bar by the appellant who inquired if Simpson wanted a girl. Simpson said no, left the bar and returned to his car. Appellant appeared at the car window and tapped on it. Simpson lowered the window and appellant reached through, unlocked the door, opened it, and got in the automobile. Appellant told Simpson to drive to a certain address to find a girl and Simpson, believing this to be the easiest way to get appellant out of the car, complied. Upon reaching the address (317 Grove), both men got out of the car. At this point, appellant struck Simpson from behind, and began clawing at his clothes trying to get in his pockets. When the first police officers arrived, both men were down, and the struggle was still in progress, but Graves then arose, and by the time of officers got out of the car both Simpson and appellant were searching for Simpson's glasses which had been knocked off in the struggle. Simpson told the first officer to arrive what had happened, and, in response to questions from the officers, realized that a diamond ring was missing from his little finger. The ring was recovered from appellant, but Simpson did not see the actual search of appellant's person.

Simpson also testified he did not remember blowing the horn at the residence located at 317 Grove, did not recall appellant going to the house and did not remember a woman coming out to the car. Simpson said he could not remember if he ever asked appellant to get out of the car, and could not explain why he did not drive off when appellant left the car at their destination. Simpson said he thought his pants were unzipped when the officers arrived, but denied any homosexual relationship with appellant.

Officer Hayes of the Hot Springs Police Department testified that at about 1:00 a.m. on September 7, he and Officer John Trammel were dispatched to 317 Grove. Hayes said that upon reaching the scene he observed another police car already there with the officers still seated in the vehicle. He stated no struggle was going on, and said appellant was attempting to enter the Simpson car and Simpson was stammering and 'staggerin' around' at the rear of the car. According to Hayes, he conferred briefly with Officer Cockman, who had arrived in the other police car, and then walked over to Simpson, who told him appellant had robbed him of a diamond ring which he described, in response to Hayes' questions, as a Shriner's ring worth $2,500. Hayes said he then arrested appellant, 'frisked' him and placed him in his police car. After talking further with Simpson and taking a statement from Jewell Lofton, who lived at 317 Grove, and who had called the police, Hayes said he asked appellant if he had the ring, and appellant said he did not. Hayes stated he then ordered appellant out of the car and conducted another search which resulted in the ring being found in appellant's shoe.

Appellant took the stand and gave the following version of the incident:

As appellant walked out of a bar, Simpson, who was seated in a car parked at the curb, asked appellant if he could arrange a date for him. At Simpson's invitation, appellant got into the car, and directed Simpson to the Grove Street address, dress, where Jewell Lofton lived. After Simpson blew the horn, appellant went to the door and talked to Miss Lofton, who refused his proposal. When appellant returned to the car, Simpson, who was urinating in the yard, made homosexual advances toward him. Appellant hit Simpson, and a struggle ensued. The fight stopped just before the first police car approached. Simpson asked appellant to help find his glasses, which had been lost in the struggle, and to say nothing to the officers. Appellant found the glasses and the ring, returned the glasses to Simpson, but, not knowing to whom the ring belonged, stuck it in his shoe. He then told the first officer who inquired that nothing was wrong. Officer Hayes then arrived, and Simpson told him appellant was trying to rob him. Hayes jumped from his car, grabbed appellant, searched him and placed him in the police car. Hayes talked to Simpson, and then returned to the car and told appellant to get out for another search, because Simpson said he had lost a ring. The second search produced the ring from his shoe.

We find error in the failure to provide counsel at the preliminary hearing. The United States Supreme Court has held that, when a preliminary hearing is conducted prior to a grand jury proceeding, the appointment of counsel for an indigent is required. Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970). The court, looking, as it held it must, to Alabama law to determine the purpose of that state's preliminary hearing, found that, since a grand jury indictment could have been sought without having it, the hearing was not a step required in prosecution, but was conducted for the sole purpose of determining whether there was sufficient evidence against the defendant to warrant presenting the case to the grand jury, and if there was, to fix bail. Still, according to the United States Supreme Court, a preliminary hearing under such circumstances is a critical stage requiring the assistance of counsel to an accused.

In Arkansas, as in Alabama, the holding of the preliminary hearing is discretionary. Jeffries v. State, 255 Ark. ---, 501 S.W.2d 600, (1973); Ellingburg v. State, 254 Ark. 199, 490 S.W.2d 904. We have held that the purpose of our preliminary hearing is to determine whether the accused should be held to await grand jury action so that, in the meantime, he would not unlawfully be deprived of his freedom if there were not sufficient grounds for holding him. Day v. State, 185 Ark. 710, 49 S.W.2d 380. Since that decision our Constitution has been amended to make an information by a prosecuting attorney an alternative to indictment by a grand jury. Amendment 21.

The United States Supreme Court, in reaching the decision in Coleman v. Albama, supra, set out four major reasons why counsel was required at a preliminary hearing:

Plainly the guiding hand of counsel at the preliminary hearing is essential to protect the indigent accused against an erroneous or improper prosecution. First, the lawyer's skilled examination and cross-examination of witnesses may expose fatal weaknesses in the State's case that may lead the magistrate to refuse to bind the accused over. Second, in any event, the skilled interrogation of witnesses by an experienced lawyer can fashion a vital impeachment tool for use in cross-examination of the State's...