Koonce v. State, CR
| Decision Date | 27 May 1980 |
| Docket Number | No. CR,CR |
| Parties | Frederick Lee KOONCE a/k/a, Frederick Roberts, Appellant, v. STATE of Arkansas, Appellee. 80-43. |
| Court | Arkansas Supreme Court |
Jack T. Lassiter, Little Rock, for appellant.
Steve Clark, Atty. Gen. by Robert J. DeGostin, Jr., Asst. Atty. Gen., Little Rock, for appellee.
Appellant Frederick Lee Koonce, also known as Frederick Roberts, was sentenced to 16 years' imprisonment as a habitual criminal, after having been found guilty of aggravated robbery by a jury. He was also found guilty of unauthorized use of a motor vehicle, as a lesser included offense on the charge of theft of property, and sentenced to imprisonment for one year on that charge. On this appeal, he alleges that the trial court erred in failing to grant his motion to suppress as evidence a .22 caliber weapon seized in the search of the vehicle. He also asserts that the court erred in failing to give an instruction on choice of evils that he had requested.
The weapon was a .22 caliber revolver seized by an officer of the police department of McComb, Mississippi on the date of the alleged robbery in Cabot, Arkansas. Officer Ronald Yoas was on patrol in McComb on the evening of September 2, 1978, when he saw a motor vehicle parked behind a deserted filling station. As he approached the vehicle, he observed two male persons putting oil in the car and drinking beer from a quart bottle and two cans. He asked them for identification. One of these men produced an Indiana driver's license identifying him as Tommy R. Burcham. The other was identified as Lonnie L. Burcham. They were arrested after Officer Yoas requested information from the National Crime Information Center and was told that Tommy Burcham was wanted on a charge in Indiana. Yoas approached the vehicle and observed a man asleep inside it. He awakened this man, who was the appellant, and asked him for identification. Koonce exhibited an insurance or hospital card issued to Jerry Ashley. At the time a driver's license bearing the name Jerry Ashley fell to the floorboard of the vehicle from a wallet in possession of the person in the car. The picture on this license was not that of the person in the vehicle. Officer Yoas observed an open, half-full, quart bottle of beer in the back of the vehicle and noticed the odor of marijuana. The officer placed appellant under arrest for possession of open beer. The officer removed appellant from the vehicle and searched it. He found several knives and a fully loaded Central .22 caliber nine-shot revolver, which was identified as appellant's by Jerry Ashley, the alleged victim of the robbery, as looking like the revolver that was held on him at the time of the robbery. The weapon was found under the front seat of the automobile on the passenger side.
Lonnie Burcham told Officer Yoas that he and his brother Tommy had bought the car. Tommy Burcham testified at the suppression hearing that the car belonged to him and his brother Lonnie. All three of the persons taken into custody were charged with possession of "open" beer in violation of a McComb city ordinance. One or more of them were charged with possession of marijuana. Koonce testified at the suppression hearing that he claimed no ownership of the car and that to the best of his knowledge it belonged to Lonnie Burcham. He also said that he did not own the pistol.
Since Koonce had neither a property interest nor a possessory one, either in the vehicle in which he was only a backseat passenger or in the weapon seized, he had no legitimate expectation of privacy under the front seat of the vehicle, which would entitle him to invoke the exclusionary rule. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387, reh. den. 439 U.S. 1122, 99 S.Ct. 1035, 59 L.Ed.2d 83 (1978). For this reason, we do not consider other arguments pertaining to the reasonableness of the search.
Appellant also contends that the trial court erred in failing to give instructions on the defense of "choice of evils" on each charge against him. This defense is new to Arkansas criminal jurisprudence and seems to be a rather new concept which has not been defined by statute in many jurisdictions. It is included in the defense of justification in our criminal code. Ark.Stat.Ann. § 41-504 (Repl. 1977). That section provides:
Justification Choice of Evils. (1) Conduct which would otherwise constitute an offense is justifiable when:
(a) the conduct is necessary as an emergency measure to avoid an imminent public or private injury; and (b) the desirability and urgency of avoiding the injury outweigh, according to ordinary standards of reasonableness, the injury sought to be prevented by the law proscribing the conduct.
(2) Justification under this section shall not rest upon considerations pertaining to the morality and advisability of the statute defining the offense charged.
(3) If the actor is reckless or negligent in bringing about the situation requiring a choice of evils or in appraising the necessity for his conduct, the justification afforded by this section is unavailable in a prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability. (Acts 1975, No. 280, § 504, p. 500.)
Appellant requested, and the court refused, AMCI 4102, based upon this section of the statute, on both charges.
We do not think appellant made a showing entitling him to these instructions. Included in the commentary to this section is the following statement:
Illustrative of situations that might permit successful recourse to § 41-504 are: (1) the destruction of buildings or other structures to keep fire from spreading; (2) breaking levees to prevent the flooding of a city, causing, in the process, flooding of an individual's property; and (3) temporary appropriation of another person's vehicle to remove a seriously injured person to a hospital.
The evidence upon which appellant bases his argument that he was entitled to these instructions is as follows:
Mr. Ashley testified that on the night in question Mr. Koonce was with an individual by the name of Tom Burcham and that they came by Ashley's...
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... ... Id. at [304 Ark. 131] 148-49, 99 S.Ct. at 433 ... Pursuant to the holdings of the Supreme Court of the United States in Rakas, supra, this court held in Koonce v. State, 269 Ark. 96, 598 S.W.2d 741 (1980), that the ... appellant, who had neither a property nor a possessory interest in the vehicle in which he was apprehended or in the weapon seized had no legitimate expectation of privacy in the area under the seat which would entitle him to invoke the ... ...
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Whisenant v. State
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...148, 99 S.Ct. at 425, 433, 58 L.Ed.2d at 395, 404. In the following state decisions, the Rakas case was cited: Koonce v. State, 269 Ark. 96, 98, 598 S.W.2d 741, 742 (1980), search and seizure of a gun found under the front seat of an automobile upheld, where the defendant, a passenger in th......
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