Guinn v. State

• Court: Arkansas Court of Appeals
• Writing for the Court: CRACRAFT
• Citation: Guinn v. State, 771 S.W.2d 290, 27 Ark.App. 260 (Ark. App. 1989)
• Decision Date: 10 May 1989
• Docket Number: No. CACR,CACR
• Parties: Joe GUINN, Appellant, v. STATE of Arkansas, Appellee. 88-246.

Page 290

771 S.W.2d 290

27 Ark.App. 260

Joe GUINN, Appellant, v. STATE of Arkansas, Appellee.

No. CACR 88-246.

Court of Appeals of Arkansas Division I.

May 10, 1989.

[27 Ark.App. 263] Mark S. Cambiano, Morrilton, for appellant.

Clint Miller, Asst. Atty. Gen., Little Rock, for appellee.

CRACRAFT, Judge.

Joe Guinn appeals from his conviction of conspiring to commit multiple criminal acts in violation of Ark.Code Ann. § 5-3-401 (1987) (formerly Ark.Stat.Ann. § 41- 707 (Repl.1977)). See also Ark.Code Ann. § 5-3-403 (1987) (formerly Ark.Stat.Ann. § 41-709 (Repl.1977)). We find sufficient merit in one point raised to warrant remand for further proceedings in the trial court.

The evidence presented at trial established that appellant offered to burn a dwelling belonging to Doyle Hall to enable him to collect insurance proceeds. Hall informed the authorities, and an undercover agent, posing as a relative of Hall's, thereafter met with appellant to discuss the plan. An agreement was entered into under which the appellant would burn Hall's buildings for the purpose of collecting insurance proceeds and would purchase from the undercover officer ten pounds of marijuana for resale at other places. Overt acts in furtherance of the agreement were thereafter committed.

MOTIONS TO DISMISS

Appellant first contends that the trial court erred in denying his motion to dismiss the conspiracy charge because the only alleged co-conspirators were police officers and their agents. This argument was presented and decided adversely to appellant on the first appeal of this case. See Guinn v. State, 23 Ark.App. 5, 740 S.W.2d 148 (1987). Our decision on the issue became the law of the case, and we will not address it again. Hickerson v. State, 286 Ark. 450, 693 S.W.2d 58 (1985); Mode v. State, 234 Ark. 46, 350 S.W.2d 675 (1961).

Appellant next contends that the trial court erred in denying his motion to dismiss because he had been charged by a felony information filed by the prosecuting attorney rather than by an indictment returned by a grand jury, and because no probable cause determination was ever made prior to the issuance of a warrant for appellant's arrest. We find no error.

Appellant makes three separate arguments in support of his contention that his prosecution could not go forward in the absence of a grand jury indictment. Appellant's first and third arguments are that the grand jury indictment requirement of the fifth amendment to the United States Constitution should be made applicable to the states by virtue of the due process clause of the fourteenth amendment, and that, even apart from the fifth amendment, allowing one to be charged by a prosecutor's information without the safeguard of a grand jury indictment is "unconstitutional." We could not hold in favor of either argument even if we were so inclined. The United States Supreme Court has specifically held otherwise with respect to both arguments. See Woon v. Oregon, 229 U.S. 586, 33 S.Ct. 783, 57 L.Ed. 1340 (1913); Bolln v. Nebraska, 176 U.S. 83, 20 S.Ct. 287, 44 L.Ed. 382 (1900); Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232 (1884). The Arkansas Supreme Court has also repeatedly upheld the constitutionality of this State's practice of charging people by information. See Higgins v. State, 270 Ark. 19, 603 S.W.2d 401 (1980); McCree v. State, 266 Ark. 465, 585 S.W.2d 938 (1979); Moore v. State, 229 Ark. 335, 315 S.W.2d 907 (1958) cert. denied 358 U.S 946, 79 S.Ct. 356, 3 L.Ed.2d 353 (1959). Although a state court may interpret its own constitutional prohibitions and requirements more restrictively against the prosecution than its federal counterparts have under federal constitutional standards, it cannot impress a greater restriction as a matter of federal constitutional law when the Supreme Court of the United States has specifically refrained from doing so. Oregon v. Haas, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975). See also Kidd v. State, 24 Ark.App. 55, 748 S.W.2d 38 (1988). Nor is it within our province to overrule decisions of the Arkansas Supreme Court.

Appellant's second argument is that amendment twenty-one to the Arkansas Constitution, which specifically allows criminal charges to be brought by a prosecutor's information, is unconstitutional under the Arkansas Constitution. We cannot agree. Appellant makes no contention that amendment twenty-one was not validly adopted, and, absent a showing of invalid adoption, a state constitutional amendment is the state constitution with regard to the subject matter it addresses.

Nor do we find merit in appellant's contention that the issuance of a warrant for his arrest without a neutral magistrate's determination of probable cause required that his prosecution be dismissed. In the first place, a law enforcement officer may arrest a person without a warrant if he has reasonable cause to believe that person had committed a felony. Ark.R.Crim.P. 4.1(a). However, even were we to assume for the sake of this argument that appellant's arrest was not based upon reasonable cause, that would not mandate dismissal of the charge against him. The appellant cannot challenge his own presence at trial or claim immunity to prosecution simply because his appearance was precipitated by an unlawful arrest. An illegal arrest, without more, has never been viewed as either a bar to subsequent prosecution or a defense to a valid conviction. United States v. Crews, 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980); Van Daley v. State, 20 Ark.App. 127, 725 S.W.2d 574 (1987). In Crews, 445 U.S. at 474, 100 S.Ct. at 1251, the Supreme Court stated:

The exclusionary principle of Wongsun [v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) ] and Silverthorne Lumber Company [v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920) ] delimits that proof the Government may offer against the accused at trial, closing the courtroom door to evidence secured by official lawlessness. Respondent is not himself a suppressible "fruit," and the illegality of his detention cannot deprive the Government of the opportunity to prove his guilt through the introduction of evidence wholly untainted by police misconduct.

Here, appellant does not contend that any evidence should have been suppressed because obtained as a result of an illegal arrest but only that the charge against him should have been dismissed.

SUFFICIENCY OF MIRANDA WARNINGS

Appellant next contends that the trial court erred in admitting evidence of incriminating statements he made to police because the Miranda warnings given him were constitutionally insufficient on their face. The rights forms used in this case included the following:

Q. Do you understand that you have the right to talk to a lawyer for advice before we ask you any questions and have him/her with you during your questioning?

A. Yes.

Q. Do you understand that if you cannot afford a lawyer, one will be appointed for you by the court before any questioning, if you so desire?

A. Yes.

(Emphasis added). Relying on Mayfield v. State, 293 Ark. 216, 736 S.W.2d 12 (1987), appellant contends that the above warnings failed to inform him that an attorney would be appointed for him "free of charge" if he could not afford to hire one, and that that failure required that any statements he made be suppressed. We construe Mayfield to hold to the contrary.

In Trotter v. State, 290 Ark. 269, 719 S.W.2d 268 (1986), the court did hold that Miranda warnings must inform an accused that, if he cannot afford one, an attorney will be appointed at absolutely no cost to him and that warnings that do not so inform the accused are constitutionally defective. However, in subsequent cases culminating in Mayfield, the court stated that Trotter went too far. Mayfield holds that, while an accused person must be informed of his right to appointed counsel if he cannot afford to hire one, there are no magic words which must be used. There, the court concluded:

While we are not holding that specific words are required, we suggest that it would be very simple for the warning to say that the person being warned has the right to have an attorney present and that he may either retain one himself or, if he cannot afford one, have one appointed by the court.

Mayfield, 293 Ark. at 223, 736 S.W.2d at 15 (emphasis added). The warnings given here fully conform to that requirement.

VOLUNTARINESS OF APPELLANT'S CONFESSION

Appellant next contends that the trial court should not have admitted evidence of an inculpatory statement appellant made to police officers following his arrest because, despite appellant's request, the trial court never held a Denno hearing to determine the voluntariness of that statement. See Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); Ark.Code Ann. § 16-89-107(b)(1) (1987) (formerly Ark.Stat.Ann. § 43-2105 (Repl.1977)). That statute provides that, when a defendant raises an issue of fact concerning the voluntariness of a confession, the trial court is to conduct a hearing and determine that issue outside the presence of the jury.

On the day of trial, appellant orally moved to suppress the statement in question and requested a Denno hearing. The trial court refused to conduct a hearing at that time because the jury was already in the courtroom. As good cause was shown for the motion's lack of timeliness, see Ark.R.Crim.P. 16.2, it was decided that a hearing might be had at some other point in the trial. Over appellant's objection, evidence of his incriminating statement was subsequently introduced. The State concedes that no Denno hearing was ever held and that the trial court never ruled on whether the statement was voluntary.

We agree with appellant that this was error. However, this failure on the part of the trial court does not in and of itself entitle appellant to a new trial. Instead, the case should be remanded to the trial court with instructions to...