Hayes v. State, CR
| Decision Date | 12 May 1980 |
| Docket Number | No. CR,CR |
| Citation | 269 Ark. 47,598 S.W.2d 91 |
| Parties | Roosevelt HAYES, Appellant, v. STATE of Arkansas, Appellee. 77-160. |
| Court | Arkansas Supreme Court |
Robert A. Newcomb, Asst. Atty. Gen., Little Rock, for appellant.
Jack W. Dickerson, Asst. Atty. Gen., Little Rock, for appellee.
On January 31, 1977, the jury convicted appellant and a co-defendant of murder in the first degree. Appellant was sentenced to life imprisonment. Both defendants were represented by the same public defender.
On appeal it is insisted that the trial court erred (1) in giving an erroneous instruction; (2) in admitting appellant's confession into evidence; (3) in admitting the co-defendant's cross-implicating confession into evidence; and, (4) in requiring the same attorney to defend both defendants.
We hold that none of the alleged errors were prejudicial and affirm the trial court.
Loretta "Rabbit" McGowan lived in the same dwelling with Beverly Lewis and Roosevelt Hayes for a period of time until she was murdered on October 12, 1976. The police learned of the murder shortly after it was committed, and the early stages of their investigation took them to appellant's house in order for the police to find some beginning point. They knew the deceased had been living with appellant and Beverly Lewis at 1605 Arch Street in Little Rock, Arkansas. They approached appellant at this address in an attempt to learn when and where he had last seen the murdered girl.
Hayes voluntarily accompanied the officers to the Little Rock Police Department where they talked to him about the activities of the deceased acquaintance during the day of her murder. After appellant gave conflicting stories about when and where he had last seen the victim, the police decided he was a possible suspect; and he was given the standard Miranda warnings at that time. Subsequently, he gave a written confession which stated the details of the murder and the events leading up to it.
The statement included a description of how he beat "Rabbit" with a chain before he, Beverly, and a third party drove her to an isolated road near the Little Rock airport where she was killed. The appellant stated in the confession that he handed the gun to Beverly Lewis who fired the first shot, and then he took the gun and fired three more shots at the victim's head.
Officers Reed and Keel first talked to appellant at his residence and then drove him to the police station for the purpose of obtaining a witness statement. Detective Chapman apparently took charge when they arrived at the station. Lieutenant Moore also took some part in the investigation or interrogation. Moore's part in the question apparently was limited to two statements: "You might as well tell us the truth because we are going to find out," and "What the son-of-a-bitch got, she deserved." Moore was not present at the Denno hearing.
Officers Chapman and Reed conducted the primary questioning and wrote the confession which was subsequently signed by the appellant. Apparently, Chapman became suspicious when appellant told several stories about when he had last seen the deceased. At this time the Miranda warning was given to appellant, and he was asked to take a trace metal test. The test was positive, and the confession followed shortly thereafter at 11:00 p. m.
Appellant had been at police headquarters about 20 minutes before he was given his Miranda warnings. The officers insisted that up until that time he was not a suspect in the case.
At the trial the appellant admitted signing the confession that was introduced into evidence. The officers testified they informed the appellant he had the right to have a lawyer at that time, and it was undisputed that he did not request a lawyer that night. Appellant states he did not request an attorney that night because he was told by one of the officers that it would be morning before he could see one.
Both appellant and the co-defendant took the stand in their own behalf at the joint trial, and both of their cross-implicating statements were read into evidence over the objection of their attorney.
At no time did the court suggest separate counsel for the two defendants nor did the appointed counsel request a severance or separate representation.
The first argument presented by appellant for reversal was the court erred in giving an erroneous instruction. At the close of the evidence, the court gave an instruction which included the following words:
One is presumed to intend the natural and probable consequences of his action.
Defense counsel made a general objection to this instruction. The specific objection appears for the first time on appeal and is therefore not timely made. It is true the words were technically incorrect as they related to the intent of the appellant. However, the appellant's "intent" was not seriously disputed or contested during the trial. All of the evidence clearly reveals appellant fully intended to do what he did. Appellant's own confession shows his intent to murder the victim or to have his girlfriend do so. It makes no difference that Beverly Lewis fired the fatal shot as appellant planned it or that appellant handed the pistol to her and told her to shoot. In Wilson & Dancy v. State, 261 Ark. 820, 552 S.W.2d 223 (1977), we held that failure to make a specific objection would be forgiven only if the resulting prejudice was so great that no objection or admonition to the jury could have undone the damage or erased the effect of the error. We do not feel the error here was so prejudicial as to require us to overlook the failure to make a specific objection.
For his second point of reversal, appellant argues his confession was erroneously admitted because Lieutenant Moore was not present at the Denno hearing. The only part played by Moore in the confession, according to appellant, were the statements: "You might as well tell us the truth because we are going to find out," and "What the son-of-a-bitch got, she deserved." We agree that the state is required to produce all material witnesses at the Denno hearing. In this instance we do not believe that Lieutenant Moore was a material witness because of his limited participation and the lack of any allegations that he could have contributed to anything toward resolution of the question.
Appellant alleged he was afraid he would be shot if he tried to leave the police station. However, he admits no one told him this and further states he was not mistreated. In fact, he was given a cup of coffee in an effort to try to calm him before giving the confession.
In viewing the Denno hearing in the totality of the circumstances, we think the confession was properly admitted. Degler v. State, 257 Ark. 388, 517 S.W.2d 515 (1974). In fact, the appellant admitted he had given the statement and had it read to him before he signed it. His only change at the Denno hearing was that part of what he had told them was a lie. Considering the overall facts surrounding the confession, it was not improper for the court to admit this confession.
Appellant further argues the confession should not have been admitted because he was not properly given his Miranda warnings prior to his statement being taken. The officers testified that the Miranda warning was given at the time they became suspicious of the appellant and that it was proper in all respects. The warning included a statement that the appellant had a right to an attorney prior to continuing with the statement. Although appellant stated at the trial that he was told it would be morning before he could see a lawyer, the written statement contradicts this. The appellant was entitled to be...
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Roberson v. State
...stop. Van Patten v. State, 16 Ark.App. 83, 697 S.W.2d 919 (1985). Hill v. State, 275 Ark. 71, 628 S.W.2d 284 (1982); Hayes v. State, 269 Ark. 47, 598 S.W.2d 91 (1980). Her motion should have been granted. Her conviction for possession of a controlled substance with intent to deliver should ......
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Jordon v. State, CR
... ... Appellant also argues that Officer Boersma was a material witness and should have been produced by the State at the Denno hearing. Relying on Hayes v. State, ... 269 Ark. 47, 598 S.W.2d 91 (1980), he points out that Boersma held a revolver on him 20 minutes before the questioning at the station. But there is no indication that this officer was involved in the events at the station and the State was not required to produce him ... ...
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Swaite v. State
...the offenses. Other cases holding the "plain error" theory are Bell v. State, 223 Ark. 304, 265 S.W.2d 709 (1954), and Hays v. State, 269 Ark. 47, 598 S.W.2d 91 (1980). A fundamental reason for this court to take notice and correct the error is that it would prevent another Rule 37 hearing ......
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Oliver v. State, CA CR 01-988.
...at the end of the statement. It goes without saying that he was a material witness on the question. The State relies on Hayes v. State, 269 Ark. 47, 598 S.W.2d 91 (1980). In Hayes the State called the two officers who were primarily responsible for conducting the questioning as witnesses at......