Johnson v. State

• Decision Date: 12 October 1970
• Docket Number: No. 5524,5524
• Citation: 249 Ark. 208,458 S.W.2d 409
• Parties: William Lloyd JOHNSON, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 409

458 S.W.2d 409

249 Ark. 208

William Lloyd JOHNSON, Appellant, v. STATE of Arkansas, Appellee.

No. 5524.

Supreme Court of Arkansas.

Oct. 12, 1970.

Warner, Warner, Ragon & Smith and Troy R. Douglas, Ft. Smith, for appellant.

Joe Purcell, Atty. Gen., Sam Gibson, Asst. Atty. Gen., Little Rock, for appellee.

HOLT, Justice.

Appellant was charged by information with the crime of robbery and was convicted of that charge by a jury which fixed his punishment at fifteen years in the penitentiary. Since the evidence disclosed that appellant used a firearm in the commission of the robbery, the trial court imposed upon him, pursuant to Ark.Stat.Ann. §§ 43--2336, 43--2337 (Supp.1969), an additional seven years to run consecutively with the fifteen-year sectence set by the jury. From the judgment upon these two separate sentences comes this appeal.

The state's case established that the Piggly Wiggly Food Mart in Fort Smith was robbed of approximately $3,660 by two armed men, one of whom was wearing army fatigue pants, a blue denim work jumper and a white cowboy hat. Their flight from the scene attracted the attention of a bystander who took down the license number of their get away car. This information, together with a description of the armed robbers by two employees of the store, was furnished to the police. A police radio report was then dispatched describing the robbers and their car--a 1968 or 1969 black over yellow Chevrolet, license number BNI--247. A state trooper, observing this vehicle on Highway 64 about seven miles from Ozark, radioed ahead to Clarksville. A roadblock was set up, and the vehicle was stopped. The driver was asked to open the trunk, but replied that the car was a rental unit and that he did not have a trunk key. A police officer thereupon proceeded to drive the car toward Ozark where the trunk could be opened. On the way, the officer felt a weight shift in the back end of the car and heard noises from the trunk. He pulled over to the side of the road, stopped the car, and went back to the trunk. He and the local sheriff (who had joined him) commanded any occupant to come forth or they would shoot into the trunk. The trunk was then apparently forced open from the inside by the occupants and the appellant and a confederate emerged. These men fitted the description of the robbers and were arrested. A loaded pistol was removed from each man; and $3,657, a money bag, a hat, and false eyebrows, sideburns and cosmetics were recovered from inside the trunk. Appellant was identified at trial as one of the robbers, and most of the objects found in the trunk were intorduced into evidence.

For reversal, appellant asserts that the state's tangible evidence was the fruit of an illegal search and seizure and, therefore, erroneously admitted. We do not agree. A determination of the lawfulness of a search and seizure must be made from the particular facts and circumstances of each case. Jones v. State (Ark. May 26, 1969), 441 S.W.2d 458. A search, of course, may be made without a warrant if it is incidental to a lawful arrest and substantially contemporaneous therewith. Moore v. State, 244 Ark. 1197, 429 S.W.2d 122 (1968); Tygart v. State (Ark. Feb. 23, 1970), 451 S.W.2d 225. In the case at bar, then, a resolution of this issue is contingent upon the lawfulness of appellant's arrest. Since no warrant was issued, appellant's arrest was nevertheless lawful if there was probable cause to justify it. An arrest without a warrant is valid where the arresting officer has reasonable grounds to believe that the arrested person has committed a felony. Ark.Stat.Ann. § 43--403 (Repl.1964); Read v. State, 242 Ark. 821, 415 S.W.2d 560 (1967). Again, each case must rest upon its own facts in a determination of whether or not probable cause existed. United States v. Theriault, 268 F.Supp. 314 (W.D.Ark.1967). A police radio report reciting a sufficient description can be adequate grounds upon which to base probable cause for an arrest. See Theriault v. United States, 401 F.2d 79 (8th Cir. 1968). Probable cause is to be evaluated from the collective information of the police department and not merely on the personal knowledge of the arresting officer. Jones v. State, supra; Williams v. United States, 113 U.S.App.D.C. 371, 308 F.2d 326 (1962). The information must establish more than a mere suspicion, but it need not be tantamount to the quantum of proof necessary to support a conviction. Jones v. State, supra. Simply stated, probable cause is a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man to believe the accused committed a felony. Theriault v. United States, supra: Jackson v. State, 241 Ark. 850, 410 S.W.2d 766 (1967); Russell v. State, 240 Ark. 97, 398 S.W.2d 213 (1966).

In the case at bar, the arresting officer was informed of the correct license number of the get away car and had an accurate description of it as well as of the appellant and his trunk mate. We are without hesitation in finding that these facts and circumstances were more than sufficient to establish probable cause for arrest and that, therefore, the search and seizure incidental thereto were lawful. For a recent decision holding the search of an automobile valid solely upon the basis of probable cause for the search itself not incidental to an arrest, see Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).

Appellant also contends that the court erred in permitting certain of the state's exhibits (the record is unclear here as to what precisely was in view of the jury) to be displayed on the prosecutor's table prior to being offered as evidence, particularly since all the items on display were not subsequently admitted into evidence. While we do not condone this practice, we can hardly assign reversible error to it in the circumstances. Even in the more extreme situation where exhibits are introduced into evidence and later excluded because of a failure to connect them with the defendant, reversible error will not be declared if the verdict was not affected by the challenged evidence. Thompson v. State, 458 S.W.2d 40 (Ark. Sept. 28, 1970). Here, the only exhibits not introduced into evidence were the false eyebrows and sideburns and the cosmetics. From an observation by the trial court, it appears that these particular items were never visible to the jury. At any rate, the jury was later admonished to consider only the evidence actually admitted; and, in reviewing the record, it is clear that appellant's guilt was sufficiently established by ample competent evidence.

Appellant next asserts that prejudicial error was committed when the prosecuting attorney commented during closing argument that appellant was from Illinois and apparently made his livelihood from crime. Appellant's request for a new trial was denied, and the court admonished the jury to consider only the evidence in arriving at a verdict. The court then stated to the defense attorney: '(Y)ou've invited comments of this nature in your statements to the jury and in fairness the prosecuting attorney is entitled to answer you.' We have often had occasion to note that the trial court has wide discretion in supervising the arguments of counsel before juries and that this court will not reverse unless a manifest abuse of discretion is shown. Parrott v. State (Ark. April 14, 1969), 439 S.W.2d 924; Petty v. State, 245 Ark. 808, 434 S.W.2d 602 (1968). Here, no abuse is manifested in the trial court's refusal to declare a mistrial.

Appellant also urges that his conviction should be reversed because, according to him, his trial attorney failed to file certain motions; failed to make sufficient objections and exceptions; and otherwise failed to conduct an adequate defense. It is almost always possible to criticize, after the fact, the performance of an attorney in matters which involve elements of discretion and judgment upon which competent counsel might honestly disagree. Barnhill v. State (Ark. Arg. 25, 1969), 444 S.W.2d 97. A review of the record does not substantiate the contention of inadequacy of counsel. See Cross v. United States, 392 F.2d 360 (8th Cir. s968); Mitchell v. United States, 104 U.S.App.D.C. 57, 259 F.2d 787 (1958). To the contrary, it appears that appellant had the benefit of effective assistance of counsel in the case at bar.

Finally, we come to the contention that the addition of an extra seven-year sentence by the trial court violated appellant's constitutional rights. With this we must agree. Although of doubtful validity, we do not deem it necessary here to pass upon the constitutionality of the applicable statute (Act 78 of 1969; §§ 43--2336, --2337, [249 Ark. 214] --2338, (supp. 1969)). we cOnsider only the application of this act to the present case. Section 43--2336...