Jackson v. State

• Decision Date: 14 December 1970
• Docket Number: No. 5475,5475
• Citation: 460 S.W.2d 319,249 Ark. 653
• Parties: Carl JACKSON, Appellant, v. The STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 319

460 S.W.2d 319

249 Ark. 653

Carl JACKSON, Appellant, v. The STATE of Arkansas, Appellee.

No. 5475.

Supreme Court of Arkansas.

Dec. 14, 1970.

John W. Walker, Little Rock, for appellant.

Joe Purcell, Atty. Gen., Milton Lueken, Asst. Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Justice.

Appellant was convicted of first degree rape and sentenced to death. He states eight points for reversal. We find one of these of sufficient merit to require reversal.

After the jury was selected, impaneled and sworn, the prosecuting attorney made the opening statement for the State. Appellant's attorney then stated that the defendant would like to reserve his opening statement until the closing of the State's case. There was no objection by the State and the trial judge assented. After the prosecuting attorney rested the case for the prosecution, the court called upon the defendant to call his first witness. Defendant's attorney then stated that he had an opening statement. The circuit judge ruled that defendant had waived his right to make an opening statement when he did not do so immediately following that of the prosecution. The trial judge relied upon the holding in McDaniels v. State, 187 Ark. 1163, 63 S.W.2d 335, which had been called to his attention by a deputy prosecuting attorney at some time between the opening and closing of the State's evidence in chief.

We agree with the circuit judge that the proper procedure calls for the making of defendant's opening statement immediately following that on behalf of the prosecuting attorney, and that refusal to make his statement at that time would constitute a waiver. See Ark.Stat.Ann. §§ 43--2110--2111 (Repl.1964); McDaniels v. State, 187 Ark. 1163, 63 S.W.2d 335; Perryman v. State, 242 Ark. 461, 414 S.W.2d 91. We need not dwell upon the importance of an opening statement by which a party may alert the jury for critical points to be expected to be covered in the testimony to be adduced. See Karr v. State, 227 Ark. 777, 301 S.W.2d 442. By the same token, it seems unnecessary to elaborate upon the detriment suffered by a party deprived of his right to make such a statement. The impropriety of the procedure sought to be followed by the defendant in this case also seems apparent to us.

Even though a defendant in a criminal case may waive this right, no waiver of a fundamental right should be effective unless it is knowingly made. We do not feel that it could be said that a defendant knowingly waived his right to make his opening statement after having been assured by the trial court, without objection by the prosecution, that he could reserve the statement until after presentation of the State's evidence in chief. Since one cannot consent that the court, during the progress of the trial, take some action, and then complain of that action, in the absence of any showing that consent had been given under some misapprehension or without attempting to withdraw the consent, a party is in no position to complain of an error he permitted the court to make without objection. Clack v. State, 213 Ark. 652, 212 S.W.2d 20. We feel that the failure of the State to object when defendant's request was made at least a silent acquiescence in the procedure proposed. The failure to permit the defendant to make his belated opening statement deprived him of a fair trial and constituted prejudicial error.

There are certain other points asserted as error by appellant which may well arise upon a new trial, so we deem it necessary that we discuss them.

The point that has given us the most concern is appellant's assertion that the trial court erred in holding that defendant's waiver of right to counsel before appearing in a lineup when he had not been apprised that he was to be charged with a capital crime was knowledgeable and intelligent and in holding the lineup to have been constitutionally conducted. Our problem was aggravated by extremely sketchy abstracts in the briefs.

Appellant's contention as to waiver is based principally upon his age, which was 15 or 16 years, and his alleged legal incapacity. The record reveals the following with respect to appellant's contention:

Officer Hester of the Little Rock Police Department obtained from the victim a description of her alleged assailant. She said, among other things, that he was of a slim build, about 6 feet 2 inches tall and approximately 19 years of age. As a result of the officer's broadcast of the description, appellant was apprehended and brought to the police station only a short time after the alleged offense was reported. Detective Bob Moore was examined before the circuit judge, in chambers, before he testified before the jury. There, he testified that:

Four persons, including appellant, were brought to me at about 2:00 p.m. on the day of the arrest. I talked to appellant about the lineup at about 2:25. I advised Jackson that he was a suspect in a robbery and assault to rape; that he had the right to use a telephone and to talk to an attorney, and, if he did not have one, or couldn't afford one, that one would be appointed for him by the court; that he had the right to have his attorney present before answering any questions, and to stop interrogation at any time; and that any statement he made could be used against him. No threats or promises were made to induce Jackson to stand in a lineup. Before starting to talk to Jackson, Detective Parkman and I also advised Jackson that we were going to conduct a lineup and the he had a right to have a lawyer there. I explained what a lineup was. Jackson agreed to stand in the lineup. I asked Jackson if he understood the rights explained to him. Jackson then read and signed a statement that the particular rights mentioned had been explained and that he agreed to stand in a lineup without an attorney. I believe that Jackson said that his age was 15 years, and I had no reason not to believe this. Jackson stated that he wanted the interrogation stopped, so no further questions were asked him. I did not advise Jackson's parents or guardian that he had been arrested. Detective Parkman and I were wearing guns at the time. The three of us were sitting in a room 3 or 4 feet wide and 5 or 6 feet long. Jackson was advised of his rights by both of us. Either Parkman or I explained what a lineup was. Parkman and I also explained to Jackson that he did not have to submit himself to repeated lineups, that he had a right to make a request for counsel during the process or after one lineup. Detective Parkman then testified that:

I advised appellant of his rights from the form waiver Jackson later signed. Jackson read the form and then I read the form to him before Jackson signed it. Jackson answered that he understood that he could have his attorney present during the lineup proceedings, when I asked if he did. Jackson also stated that he understood the rights enumerated in the form waiver he signed. When I asked if he wanted his attorney present Jackson said he did not. Jackson gave his age as 16.

Jackson also testified in camera, substantially as follows:

I was 15 on the day I was arrested and in the eighth grade in school. I could read and write. I did not see Officer Parkman. Moore told me about my rights and then told me to sign the waiver, so I did, without reading it. I asked to use the phone but Officer Moore said I could not because I had not been charged. My understanding of my right to remain silent was 'that is when they tell you to be quiet.' An 'attorney' and a 'lawyer' are the same thing.

Jackson showed a fair knowledge of the meaning and effect of 'waiver,' but professed ignorance of the meaning of 'interrogation.' He said that he had never been charged with a felony, and denied knowing or having been told what a lineup was, either before he signed the waiver or before the lineup. He stated that he did not know that he was charged with a capital offense until his preliminary hearing a few days later. He claimed that a request for a lawyer of the people conducting the lineup was refused. According to him, his request was directed to Sergeants Harris and Hale, who told him to be quiet and stand up and that if he was not picked out, he wouldn't be going to the penitentiary anyway.

At the conclusion of the hearing, the trial judge ruled that appellant's right to counsel was waived voluntarily, commenting that Jackson was bound to have understood what he was doing and what keeping silent meant because he kept silent, and did not make a statement. He added that the court was inclined to think that the officers were telling the truth when they said that the waiver of the presence of an attorney at the lineup was voluntary.

After this ruling Detective Moore testified in open court that a lineup was conducted and identified a photograph showing the persons in the lineup. ¹ Appellant's objection to any statement made by the prosecuting witness with reference thereto outside appellant's presence was sustained without any question having been asked. Thereupon, no further questions were asked upon direct examination. Upon cross-examination, appellant's counsel endeavored to bring out testimony that the lineup was unfair because of its makeup and the method in which it was conducted.

Mrs. Mary Etters, the alleged victim, then testified. When asked if she recognized the person in the courtroom who committed the offenses against her, she pointed out appellant. She said that he told her, on the occasion of the alleged offenses, that he was 19 years old, and had graduated from high school some two, three or four year earlier. After relating the details of the crimes she said Jackson had committed, she told of the description she had given of her assailant. When asked when she next saw him, she answered that it was at the lineup at the police station. No objection was interposed to this question and answer, or to the subsequent affirmative answer to the inquiry whether she was...