Gustafson v. State

• Decision Date: 05 December 1979
• Docket Number: No. CA,CA
• Citation: 267 Ark. 830,593 S.W.2d 187
• Parties: Jack L. GUSTAFSON, Sr., Appellant, v. STATE of Arkansas, Appellee. CR 79-48.
• Court: Arkansas Court of Appeals

Page 187

593 S.W.2d 187

267 Ark. 830

Jack L. GUSTAFSON, Sr., Appellant, v. STATE of Arkansas, Appellee.

No. CA CR 79-48.

Court of Appeals of Arkansas.

Dec. 5, 1979.

Rehearing Denied Jan. 16, 1980.

Released For Publication by the Court of Appeals Jan. 23, 1980.

Duncan & Davis, Little Rock, for appellant.

Steve Clark, Atty. Gen. by Ray E. Hartenstein, Asst. Atty. Gen., Little Rock, for appellee.

HAYS, Judge.

The appellant was charged with burglary and theft of property. Prior to trial, a hearing was held on the appellant's motion to suppress. His motion was denied, and the case proceeded to trial where the appellant was acquitted on the burglary charge but found guilty of theft of property. The jury sentenced the appellant to ten years imprisonment and fined him $3,000. He appeals from the judgment.

Appellant's first contention is that the trial court erred in failing to suppress the evidence seized in a warrantless search and seizure. Testimony during the hearing reveals that officers went to appellant's apartment after an investigation concerning stolen CB equipment led to appellant's son's house. The officers and Mr. Jay Petray, the owner of the stolen equipment, were told by the appellant that he had no knowledge of his son's possession of the stolen equipment. However, Mr. Petray noticed an antenna on top of appellant's apartment. Consequently, the officers asked if the appellant had any CB equipment and also asked if they could search the apartment. Appellant told the officers that he had company and to come back later.

At this point, the officers decided to obtain a search warrant. One of the officers left to obtain the warrant while Sheriff Vaughn and Mr. Petray remained near the premises to keep the apartment under surveillance. The two then observed the appellant come out of the apartment. Sheriff Vaughn testified that he was carrying an armload of "stuff" and was running with it. They watched as appellant went through the garden located behind the apartment and into a wooded area where he placed the equipment. Sheriff Vaughn and Mr. Petray went to the area where the articles were hidden. Petray identified the articles as the CB equipment stolen from his store, and the appellant was arrested.

We cannot agree with the appellant's contention that this was an unreasonable search and seizure under the fourth amendment. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), requires that inferences which reasonable men draw from evidence should be drawn by a neutral and detached magistrate. This is required because one should feel secure from governmental intrusion while in his dwelling or other places where he has a reasonable expectation of privacy.

The appellant cites Sanders v. State, 264 Ark. 433, 572 S.W.2d 397 (1978), as supporting authority for the rule that one's dwelling and curtilage have consistently been held to be areas that are considered free from governmental intrusion. A garden has been considered a part of one's curtilage. Durham v. State, 251 Ark. 164, 471 S.W.2d 527 (1971); Sanders, supra. However, the facts in Sanders are clearly distinguishable from this case. In Sanders, the officers had gone to appellant's trailer house for the purpose of searching his dwelling pursuant to an invalid search warrant. Subsequently, they went behind his trailer, crossed a fence, and seized 50 marijuana plants they found in a garden.

In the instant case, the officers went to appellant's apartment merely to ask some questions. They became suspicious after seeing a CB antenna on his roof. They seized the equipment after they watched the appellant run out of his apartment and dump it In a wooded area behind the garden.

A search of open land without a warrant is permissible. Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924); Rules of Criminal Procedure, Rule 14.2 (1976). The Arkansas Supreme Court has held that wooded areas are open land, Bedell v. State, 257 Ark. 895, 521 S.W.2d 200 (1975); even when the land in question belonged to the appellant, Wyss v. State, 262 Ark. 502, 558 S.W.2d 141 (1977). We believe that the appellant had no reasonable expectation of privacy in the wooded area behind his apartment and this is not within the purview of one's "curtilage" as defined in Sanders, supra. Hence, the trial judge was correct in his denial of appellant's motion to suppress.

Appellant's second contention is that the trial court abused its discretion in denying appellant's motion for mistrial. The motion was made after the prosecuting attorney, in his closing argument, made statements to the jury which, appellant contends, were highly prejudicial. Previously, in the appellant's closing argument, the defense counsel had commented on the credibility of two of the State's witnesses. In response to this, the prosecutor stated:

But, I think you ladies and gentlemen know, in matters of common experience, that in the sewer of crime the good people don't go only the rats, and the rats talk to each other and the rats commit crimes together. (T. 193, 194)

Appellant also objected to the prosecuting attorney's closing argument in the sentencing proceeding. Prior to this time, defense counsel had attempted to rebut the State's evidence of prior convictions by stating that the date of the last conviction was 24 years ago and that "a lot of things have happened since 24 years ago." The prosecutor, in response to this statement, commented to the jury:

I suggest to you that there has been a lot of things that happened since then, as evidenced by this trial, and others, and I leave it to your speculation as to what others may be, that we don't have here today. (T. 215)

The trial judge sustained both objections by appellant, instructed the jury to disregard the prosecutor's reference to certain persons as "rats," and instructed the prosecutor to stay inside the record. Appellant moved for a mistrial on both statements and was overruled.

We agree with the appellant that these statements by the prosecutor are highly improper. However, the granting of a motion for mistrial is an extreme remedy and has largely been within the province of the trial court. Gammel and Spann v. State, 259 Ark. 96, 531 S.W.2d 474 (1976); Hill v. State, 255 Ark. 720, 502 S.W.2d 649 (1973); Johnson v. State, 254 Ark. 293, 493 S.W.2d 115 (1973).

As was stated in Simmons v. State, 233 Ark. 616, 346 S.W.2d 197 (1961):

This Court has repeatedly observed that the prosecuting attorney acts in a Quasi judicial capacity and that it is his duty to use all fair, honorable, reasonable, and lawful means to secure the conviction of the guilty in a fair and impartial trial.

As a general rule, there are three types of improper statements made by a prosecuting attorney: improper, prejudicial, and prejudicial per se. (See Hall, The Bounds of Prosecutorial Summation in Arkansas, 28 Ark.L.Rev. 55 (1974)). Improper statements do not lead to reversal but should be avoided on ethical grounds. Prejudicial statements will lead to reversal unless it is harmless error, and prejudicial per se statements invariably lead to reversal. The permissible bounds of prosecutorial summation will depend on the various facts and circumstances of each case. (For the general rule pertaining to prosecutorial summation see ABA Standards for Criminal Justice, The Prosecuting Function § 5.8 (1971)).

The general rule is that the prosecutor may not assert the defendant's character is questionable where there is no adequate justification in the evidence. However, where the prosecutor has improperly demeaned the defendant, an admonition by the trial court may be adequate. Hence, in Henshaw v. State, 67 Ark. 365, 55 S.W. 157 (1900), an admonition by the trial court to the jury when the prosecutor referred to the defendant as a "jailbird" was held sufficient. Also, in Johnson v. State, 254 Ark. 293, 493 S.W.2d 115 (1973), the Supreme Court upheld a conviction of the appellant on counts of burglary and grand larceny, stating that an admonition by the trial judge was sufficient when the prosecuting attorney suggested that the defendant's plea of not guilty was an insult to the jury's intelligence as to warrant double punishment. The court stated that for a mistrial to be warranted, it must appear that justice can not be served by continuation of the trial.

In this case, we can not say that the prosecutor's statements were so highly prejudicial as to warrant a mistrial. We regard the prosecutor's statements as highly improper, but we conclude that the admonition by the trial court was adequate to offset the impropriety. We are confident that jurors will not take such unprecedented comments made by the prosecutor into consideration and would not be inflamed or prejudiced by such, particularly where the trial judge has expressed his disapproval. Moreover, where the opposing counsel has made credibility an issue, the bounds of permissible argument on that issue are considerably broader. Tomlinson v. United States, 68 App.D.C. 106, 93 F.2d 652 (1937).

As to the second statement made by the prosecutor, we again do not approve such comments but hold that an admonition by the trial judge was sufficient. These comments were made during the sentencing proceedings after a guilty verdict had been rendered. It is a well settled rule in Arkansas that the trial judge has wide discretion in determining the prejudicial effect of counsel's closing arguments to the jury. Murchison v. State, 249 Ark. 861, 462 S.W.2d 853 (1971); Peters v. State, 248 Ark. 134, 450 S.W.2d 276 (1970); Fisher v. State, 241 Ark. 545, 408 S.W.2d 894 (1966); Head v. State, 221 Ark. 213, 252 S.W.2d 617 (1952). The trial court has the opportunity to observe its prejudicial impact upon the jury, and its decision will not be reversed unless there has been an abuse of discretion. We do not believe that the appellant was unduly prejudiced and therefore hold that the trial court...