Little v. State

• Decision Date: 27 June 1977
• Docket Number: No. 1,No. CR76-109,CR76-109,1
• Citation: 554 S.W.2d 312,261 Ark. 859
• Parties: Deborah Lynne LITTLE, Appellant, v. STATE of Arkansas, Appellee
• Court: Arkansas Supreme Court

Page 312

554 S.W.2d 312

261 Ark. 859

Deborah Lynne LITTLE, Appellant, v. STATE of Arkansas, Appellee.

No. CR76-109.

Supreme Court of Arkansas, Division No. 1.

June 27, 1977.

Rehearing Denied Sept. 19, 1977.

Spencer & Spencer, El Dorado, for appellant.

Jim Guy Tucker, Atty. Gen. by Terry R. Kirkpatrick, Asst. Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Justice.

Carey Dean Little literally had his brains blown out by a shotgun blast as he lay sleeping in his bed at his home in Huttig, Arkansas, very early on the morning of January 16, 1975, his thirty-second birthday. His daughter Deborah Lynne (born August 5, 1960, according to her mother) was charged with his murder, found guilty, and sentenced to life imprisonment for murder in the first degree. She seeks reversal of this conviction on ten grounds. They are:

I

APPELLANT'S STATEMENT, MADE AT HER ARREST, AND ADMITTED OVER OBJECTION, WAS INVOLUNTARY AND INADMISSIBLE.

II

APPELLANT'S TAPE RECORDED STATEMENT, ADMITTED OVER HER OBJECTION, WAS INVOLUNTARY AND INADMISSIBLE.

III

APPELLANT'S STATEMENTS, MADE AFTER SHE HAD RETAINED COUNSEL AND WITHOUT PRIOR NOTICE TO COUNSEL, WERE INADMISSIBLE.

IV

INSTRUCTIONS ON BURDEN OF PROOF TO REBUT THE PRESUMPTION OF CHILD'S CRIMINAL INCAPACITY WERE ERRONEOUS.

V

INSTRUCTIONS DENIED APPELLANT BENEFIT OF THE PRESUMPTION OF CHILD'S INCAPACITY TO COMMIT CRIME.

VI

INSTRUCTIONS WERE INCONSISTENT AND INHARMONIOUS.

VII

TESTIMONY OF NON-EXPERTS AS TO APPELLANT'S ABILITY TO DISTINGUISH RIGHT FROM WRONG WAS INADMISSIBLE.

VIII

DENIAL OF APPELLANT'S MOTION FOR A DIRECTED VERDICT OF ACQUITTAL WAS ERRONEOUS.

IX

FAILURE TO TRANSFER CASE TO JUVENILE COURT WAS ABUSE OF DISCRETION.

X

INSTRUCTION TO THE JURY ON CIRCUMSTANTIAL EVIDENCE WAS ERRONEOUS.

We find no reversible error and affirm.

Perhaps the most critical question in the case arises from incriminating statements made by appellant and admitted into evidence over her objection. This is critical solely because of appellant's age. Proper consideration of the admission of this evidence requires that the sequence of events leading up to the making of these statements be reviewed.

Brenda Sue Little, wife of Carey and mother of Deborah Lynne (who was called Debbie), was in bed with her husband when she was awakened by an explosion. She discovered that he was severely wounded and jumped out of bed. About that time, Debbie ran into her parents' bedroom screaming and hollering, and then ran out. Mrs. Little followed, grabbed Debbie and her two brothers, and took them all into the living room, but Debbie ran back into the bedroom, screaming and hollering. Mrs. Little called her father-in-law and Ronnie Tucker, the marshal. She went into the bathroom to get something with which to wipe her husband's face and Debbie was there, crying but not hysterical. One of the sons found a shotgun shell case in the hallway outside the bedroom door. It was pointed out to Marshal Tucker when he arrived at the Little house and he delivered it to Deputy Sheriff Vines, who came to the house pursuant to a call he received at 4:39 a. m. These two officers started looking for a shotgun and found one in Debbie's bedroom closet behind some clothing. The bathroom window was open and the screen pushed out. It appeared to Marshal Tucker that it had been pushed out from the inside and another officer said the screen was stretched toward the outside. Tucker found no marks on the muddy outside wall. There were no footprints near the window. The ground was wet and soft. Neither mud nor tracks were found in the bathroom. The back door of the house was locked.

Later, Vines went with Chief Deputy Sheriff Saunders and Deputy Sheriff Vinson to the residence of Mrs. Paul Murray, Deborah's aunt, where they found Deborah and some of her relatives shooting pool. Saunders and Vinson interviewed Deborah and her brother, in the presence of Vines and of Tucker, who was there when the other officers arrived. Debbie told the officers that she had heard the shot, gotten out of bed, gone to the door, turned on a light, saw her mother coming out of her parents' bedroom crying, looked in, saw him and almost "went out." The officers then talked to the victim's father. They later took a statement from Darlene and Geraldine Dollar and arrested Debbie on the basis of their statements. The arrest was made near noon, without a warrant. The officers had first gone to her grandfather's home and told him and Mrs. Little they were going to arrest Debbie. When Saunders told Deborah that she would have to come with the officers and would be charged with the death of her father, she seemed upset and said she didn't want to go. Saunders said that Mrs. Little was upset, too, and that Mrs. Spells comforted Deborah. Deborah was taken in an automobile to the county juvenile home. Mrs. Little did not accompany them, but Mrs. Spells did. Mrs. Little testified that she was not permitted to go, but Saunders testified that she did not ask to be allowed to do so. Mrs. Little said that she realized that she herself was a suspect when the officers questioned her at the hospital to which her husband was taken. When they got into the car, Vinson warned Deborah of her constitutional right to counsel and her privilege against self-incrimination by reading from a card he carried. The officers asked Deborah no specific questions about the crime. When Vinson started to ask Deborah some questions after he had given the warnings, Saunders would not allow him to do so. The officers overheard Deborah say something to Mrs. Spells, with whom she was riding in the back seat, about hating her father and having "done it." Vinson said that she acted calm and collected. Saunders then advised Deborah not to say anything at all and that she shouldn't even be talking about the matter.

When they arrived at the juvenile home the officers turned Deborah over to Barbara Bird, a juvenile probation officer, and went to the sheriff's office and called Deputy Prosecuting Attorney Joe Calloway. Later they met him at the juvenile home. They had purposely delayed going there to make certain that Deborah's mother could be present before the officers talked to her, and went only when they had been advised that Mrs. Little was there.

Saunders said that Calloway explained Deborah's rights to Mrs. Little and told her that, in his opinion, they would have to have Mrs. Little's permission before Deborah's statement could be taken. He said that Calloway gave the standard warnings that Deborah did not have to make any statement, that she was entitled to an attorney and that if they did not have the money to hire an attorney that one would be appointed free of charge.

Calloway asked Mrs. Little if she wanted to talk to her daughter before he and the officers talked with her. The mother and daughter went into a room where they were alone and they remained there for 10 or 15 minutes. When they returned, Mrs. Little said that Deborah wanted to tell what had happened. Mrs. Little looked as if she had been crying.

Vinson took charge of an interview of Deborah in an office in the juvenile home in the presence of Mrs. Little, Mrs. Bird, Deputy Sheriff Saunders and Deputy Prosecuting Attorney Calloway. Vinson first turned on a tape recorder and repeated the "Miranda warnings," saying that these were given for both Deborah and her mother. He said that Deborah was calm and collected and paying attention. Neither Deborah nor her mother indicated in any way that either desired the assistance of counsel. Vinson said Deborah gave no indication that she did not desire to make a statement. No one other than Vinson asked any questions.

The tape recording reflects that Vinson first identified everyone present and proceeded to recite warnings about Deborah's right to assistance of counsel, her right to remain silent, and that anything she said could and would be used against her. Vinson received an affirmative answer when he asked Deborah if she understood. No audible answer of Mrs. Little was recorded. Vinson said that she did respond in the affirmative, but that the recorder had not picked up her low-voiced answer. Vinson then asked Deborah if she wanted to talk to the officers, and when he received an affirmative reply, he confirmed by Deborah that she had previously been warned of her rights. He also confirmed the fact that Mrs. Little had conferred with Deborah before the interview.

Vinson then asked Deborah to explain everything that happened after 4:00 a. m. She then narrated what had happened from the time she had awakened early in the morning until she was brought to the juvenile home. She said that when she had awakened she got the gun out of her closet where she had hidden it, loaded it, went into the hall, closed her brothers' bedroom door, went and opened a window screen to make it appear that someone else was the perpetrator of the crime, went back into the hall, pulled the trigger, shot her father, ran with the gun, forgetting to pick up the shell, hid the gun in her closet and got back in her bed. She then got up, met her mother coming out of the bedroom and started "screaming and squalling." After Deborah completed her narration, Vinson asked her if she had planned this and if she had told anyone what she was going to do. She said that she had told her friends Darlene and Geraldine Dollar and that the three had planned to leave home, but she was planning to kill her father before they left. The interview was concluded at 4:27 p. m. It had lasted seven minutes.

Barbara Bird testified that when the officers brought Deborah to the youth home, they explained that, because of her age, they did not think it a good idea to take her to jail and asked her to talk to the girl in order to ascertain her attitude and the risk of her running away. Mrs. Bird understood that she was not to interrogate Deborah. Mrs. Bird took the girl on a tour of the facilities, but asked her no specific questions...