Houston v. State, CR

• Decision Date: 22 May 1989
• Docket Number: No. CR,CR
• Citation: 771 S.W.2d 16,299 Ark. 7
• Parties: Willie HOUSTON, Appellant, v. STATE of Arkansas, Appellee. 88-194.
• Court: Arkansas Supreme Court

Page 16

771 S.W.2d 16

299 Ark. 7

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

No. CR 88-194.

Supreme Court of Arkansas.

May 22, 1989.

Ralph Cloar, Arthur L. Allen, Little Rock, for appellant.

Tim Humphries, Asst. Atty. Gen., Little Rock, for appellee.

HAYS, Justice.

This appeal from a conviction for first degree murder challenges two evidentiary rulings and the sufficiency of the evidence to support the conviction.

On the evening of March 2, 1988, Eddie Bell answered a knock at his front door. Shots were exchanged between Bell and the person at the door and Bell died from multiple gunshot wounds received in the exchange. A few minutes later the appellant, Willie Houston, was found injured on the parking lot adjacent to the emergency room at the University of Arkansas Medical Center. The appellant told medical personnel he had been shot and they notified the police.

Having learned of the homicide of Eddie Bell, the police asked the attending physician to save any bullet fragments he might retrieve in surgery. When surgery was performed, two bullets and some fragment were removed from the appellant, turned over to the police, and taken to the Arkansas State Crime Lab. A comparison test was performed and one of the bullets matched a .38 caliber revolver found next to Bell.

The police obtained a warrant for appellant's arrest and he was tried and convicted of first degree murder. As an habitual offender he was sentenced to a term of 99 years. It is from that conviction that appellant brings this appeal.

Appellant first argues that the trial court erred in denying a motion to suppress the bullets retrieved by surgery. The appellant contends on appeal that the surgery was performed in order to recover the bullets and the appellant was entitled to at least a hearing prior to any surgery. Appellant cites us to Bowden v. State, 256 Ark. 820, 510 S.W.2d 879 (1974), where the appellant had been brought to a hospital with a gunshot wound following a robbery and a murder. The police suspected the appellant and sought a search warrant to perform surgery to remove a bullet which appeared in an x-ray to match the gun fired at the robbers. We held that the removal of the bullet in that case would violate the fourth amendment.

Our case is immediately distinguishable. In Bowden, the operation was requested by the police, not the appellant, and was being sought over the appellant's objection. The more appropriate case for comparison is Turner v. State, 258 Ark. 425, 527 S.W.2d 580 (1975), where we held that an operation which may be invasive, which is not done at the direction of, or by prearrangement with any law enforcement officer, will not constitute any unreasonable search and seizure. This comports with the general rule that the exclusionary rule and the fourth amendment were not intended as a restraint upon the acts of private individuals but upon the activities of the government and its officials. 1 LaFave, Criminal Procedure § 3.1(h)(1984). Such searches will not implicate the fourth amendment unless the search by the private party has been done at the request or order of the government or in some way has been a joint endeavor with the government. Id.

Here, the evidence showed only that the removal of the bullets was done at the instigation of the appellant and the doctor with no direction or prearrangement for the surgery by the police. The appellant appeared voluntarily at the hospital, in obvious need of medical attention. Appellant was evaluated by the doctor and a decision to take appellant to surgery was made after that evaluation. The doctor talked to the police informally the night of the surgery and he testified they told him if he were to remove any bullets or fragments, to make the appropriate arrangements so the police could pick them up. He also testified that the operation was done for appellant's benefit and that appellant had given his consent after his injuries and the risks of surgery had been explained.

Two policemen had been called to the hospital that night, Officers Grogan and Ball. Grogan testified that he didn't know if appellant was even a suspect and he had gone to the hospital because it was standard policy to make a report of shooting victims. He had talked to the medical personnel only about the extent of appellant's injuries. Officer Ball had also talked to the medical personnel and stated he told them that if they needed to perform surgery and get the bullet out that the police needed the bullet. He stated he didn't ask them to perform surgery and at that time didn't know they were going to operate. Thus there is no indication the surgery was performed to accommodate the police. The trial court was correct in denying appellant's motion for...