Gross v. State, 5408

• Decision Date: 12 May 1969
• Docket Number: No. 5408,5408
• Citation: 440 S.W.2d 543,246 Ark. 909
• Parties: Billy GROSS, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 543

440 S.W.2d 543

246 Ark. 909

Billy GROSS, Appellant, v. STATE of Arkansas, Appellee.

No. 5408.

Supreme Court of Arkansas.

May 12, 1969.

Rehearing Denied June 9, 1969.

Clark, Clark & Clark, Conway, for appellant.

Joe Purcell, Atty. Gen., Don Langston, Jerry D. Pinson, Asst. Attys. Gen., Little Rock, for appellee.

BROWN, Justice.

This is an appeal by Billy Gross from a conviction of second degree murder and a sentence of twenty-one years, which punishment was imposed as the result of a second trial which began on October 7, 1968. The principal attack upon the verdict is based upon the admission of evidence which showed that Gross remained silent in the face of a statement accusatory in nature made in his presence by an alleged accomplice. Other points for reversal are based upon the admission into evidence of certain photographs, testimony given at the first trial by a doctor who was absent from the State at the time of the second trial, and the reception in evidence of various items showing the presence of blood.

The State produced eyewitness evidence of an orgy of drinking, fighting, and sexual acts which occurred at the home of Frank A. Birch in the Hattieville community, Conway County, on the night of Saturday, September 28, 1963, and which culminated in Birch's death. Birch was better known as Dutch Chartan. As did the witnesses, we will refer to him as Dutch.

According to the State's evidence, two couples assembled in North Little Rock early that Saturday night. They were Billy Gross, Dollie Jean Roberts, Benjamin Winegart, and Beverly Wilkerson. After procuring some whiskey and wine the two couples motored to Hattieville, some sixty miles distant. They first visited briefly at the home of Billy's mother. From there they drove to the home of Dutch Chartan, with whom Billy and Dollie Jean were well acquainted. The party first engaged in licentious dissipation with all five participating. The festivities culminated in a fight. Billy is said to have called Dutch vile names and accused Dutch of 'snitching' on him. Dollie Jean testified that Billy announced his intention to kill Dutch; that Billy struck Dutch with a stick of wood, cut on Dutch's throat with a pocket knife, and then procured a saw and 'started sawing his throat.' She testified that the blows from the stick felled Dutch near a stove and that he remained there. The two couples were said to have left the premises shortly before dawn Sunday morning; they went back to the home of Billy's mother and slept until midafternoon. Upon arising they returned to Dutch's house, assertedly to procure more liquor. Gross and Winegart entered the house and stayed for some time. When they returned to the car the two couples drove back to North Little Rock. On the return trip Gross allegedly told the women to get together on a story that they had not been with Gross and Winegart and that Gross stated further the men would probably be out of the State by night.

Sheriff Marlin Hawkins, in response to a call, went with other officers to the home of Dutch Chartan that Sunday night about eleven o'clock. In the disheveled house they found Dutch's body. One or two sticks of wood and a coke bottle and a saw were observed to be stained with a red substance which appeared to be blood. There was also a towel and a pan of water, both of which contained a reddish substance.

An all-points bulletin was circulated on Gross and Winegart and they were shortly apprehended in Lubbock, Texas. Sheriff Hawkins returned them to Morrilton, the county seat. Other facts pertinent to the appeal will be related as the points for reversal are discussed. We will not burden the opinion with much of the voluminous evidence introduced because the sufficiency of the evidence to sustain a conviction is not in question.

The first two points for reversal are concerned with what is commonly called the 'tacit admission rule.' Sheriff Hawkins testified that on the return trip from Lubbock, Benjamin Winegart started talking about the incident. The sheriff said he thereupon advised both Winegart and Gross that they were not being asked to discuss the charges, that any statements by them could be used at the trial, and that they were entitled to consult an attorney before making any statements. Winegart is said to have stated that they did not know they had killed Dutch until the officers arrested them in Lubbock.

Another conversation allegedly occurred at the jail in Morrilton some few days after Winegart and Gross were incarcerated. At that time they were together in a cell 'no larger than a jury box.' Sheriff Hawkins had learned that on their flight from North Little Rock to Lubbock, the men came through Morrilton, which was not on a direct route between the first named cities. Hawkins said he told Winegart and Gross at the jail that he was curious to know why they went out of their way to come by Morrilton. He testified that Winegart answered by saying that Gross intended to proceed to Hattieville, a short distance north of Morrilton, to the home of Dutch Chartan, and burn the building--'the building in which Chartan's body was at.' Winegart said he dissuaded Gross from that plan while they were eating a sandwich at Morrilton, and they proceeded to drive to Lubbock. Sheriff Hawkins testified that Gross could not help hearing the damaging statements made by Winegart and that Gross made no response.

The fact that Gross remained silent in the face of Winegart's statements was admissible in his first trial in 1964. Moore v. State, 229 Ark. 335, 315 S.W.2d 907 (1958); Martin v. State, 177 Ark. 379, 6 S.W.2d 293 (1928). The 1964 conviction, which carried a life sentence, was set aside by the federal court on a finding that Gross had been denied his constitutional rights with respect to having an appeal perfected. Gross v. Bishop, D.C., 273 F.Supp. 992 (1967). It was there held that the denial of due process could not be corrected except by new trial.

Prior to the second trial came the decisions in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); and Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). This rule affecting tacit admissions was stated in Miranda: 'In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation.' Then followed the pronouncement in Johnson which said Miranda should apply only to cases commenced after Miranda was announced; and it was also stated that the Miranda guidelines 'are therefore available only to persons whose trials had not begun as of June 13, 1966.'

This brings us to the vital question in this case, namely, whether Miranda applies to the 1968 retrial. The question is treated exhaustively in State v. Branch, 1 N.C.App. 279, 161 S.E.2d 492 (1968). There it is emphasized that the whole tenor of Miranda is prospective in application, not retroactive. Branch cited with approval the case of Jenkins v. State, 230 A.2d 262 (Del.1967). Jenkins summarizes the view of that court in these words:

It is our opinion that Miranda should not apply at retrial, notwithstanding the fact that it will be held after the June 13, 1966 effective date of Miranda. We think it neither logical nor reasonable that the retrial should be conducted under rules different from those prevailing when the cases were tried the first time. In Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), the United States Supreme Court stated: 'We hold further that...