McDonald v. State

• Decision Date: 22 January 1973
• Docket Number: No. 5792,5792
• Citation: 253 Ark. 812,491 S.W.2d 36
• Court: Arkansas Supreme Court
• Parties: Dennis Wayne McDONALD, Appellant, v. STATE of Arkansas, Appellee.

Page 36

491 S.W.2d 36

253 Ark. 812

Dennis Wayne McDONALD, Appellant, v. STATE of Arkansas, Appellee.

No. 5792.

Supreme Court of Arkansas.

Jan. 22, 1973.

Rehearing Denied March 5, 1973.

LeRoy Autrey, Texarkana, for appellant.

Ray Thornton, Atty. Gen. by Robert H. Crank, Asst. Atty. Gen., Little Rock, for appellee.

GEORGE ROSE SMITH, Justice.

This prosecution for rape was defended on the ground that the prosecuting witness consented to the act of intercourse. The jury, rejecting that defense, returned a verdict guilty and fixed the punishment at imprisonment for 30 years.

There is no merit in the contention that the verdict is not supported by substantial evidence. The prosecutrix testified that on the morning of June 19, 1971, after her husband had left to take the couple's son to work, the defendant appeared in her bedroom, armed with a knife wrapped in a cuptowel. By threatening her with the knife the defendant forced the prosecutrix to go out to her daughter's car, which was parked behind the garage. There she was compelled to submit to him. The defendant, testifying in his own defense, insisted that the prosecutrix consented to having intercourse with him. He admitted having picked up the knife and the cuptowel in the prosecutrix's kitchen, but he denied having threatened the prosecuting witness in any way. His explanation was that he meant to steal the knife and take it to his grandmother's house, where there were not enough steak knives to go around. The conflicting testimony presented a question of fact for the jury, whose verdict settles the issue.

The date of trial was set three weeks in advance. On the morning the trial the accused expressed dissatisfaction with his appointed attorney, stating that the attorney had talked to him only twice before the trial and had indicated that he thought the defendant should plead guilty. The trial judge expressed his confidence in the lawyer and refused to relieve him, but he did appoint additional counsel to assist in the trial.

We find no error. Theis is no indication that any other facts would have been disclosed by more frequent attorney-client discussions before the trial. To the contrary, the appointed attorney stated that nothing could have been accomplished by additional conferences. Even so, the court appointed a second lawyer to assist in the trial and still a third one to handle this appeal. In a matter that lies primarily within the discretion of the trial judge, who observes the conduct of counsel at firsthand, we find nothing to indicate an abuse of discretion.

The appellant complains that at the trial he was unshaven and had unusually long hair. In the court below there was on objection on the ground now urged, nor any request that the accused be afforded an opportunity to shave or get a haircut. It is now insisted, however, that his rights should have been explained to him, so that he could decide what he wanted to do.

That argument is unsound. This defendant's appearance was not necessarily prejudicial, as may be the case when the accused is tried while wearing prison garb. Miller v. State, 249 Ark. 3, 457 S.W.2d 848 (1970). Here McDonald evidently preferred to have his hair long, for he admitted that it was long when he was arrested. By failing to make any objection he speculated upon the possibility that the jury might be favorably or sympathetically impressed by his appearance. After the verdict proved to be adverse it is too late for him to change his mind and suggest that he would have demanded a haircut if he had known one to be available. Moreover, there is no proof that a haircut would not have been supplied had McDonald requested one while he was in jail awaiting trial. Thus there is no basis in the record for a finding of reversible error.

Next, it is argued that the knife and towel were obtained by an illegal search and should not have been admitted in evidence. The search was not illegal, being indident to a lawful arrest. Immediately after the occurrence the prosecutrix reported it to the police, who broadcast a description of the offender. Within a few minutes Officer Simmons saw McDonald (whom he recognized from the description) running down a sidewalk in the prosecutrix's neighborhood. When McDonald jumped over a fence and started across a yeard the officer drew his pistol and ordered McDonald to halt. McDonald at once returned to the sidewalk, where the officers searched him and found the knife and towel.

Counsel is mistaken in arguing that there was no arrest simply because the officers did not use the word 'arrest' before making the search. It is the actual restraint, or consent to restraint, that constitutes an arrest. Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); Ark.Stat.Ann. § 43--412 (Repl.1964). Here McDonald was unquestionably being restrained when the search was made. The broadcast description gave the officers probable cause for the arrest. The articles were therefore admissible, having been obtained as an incident to the arrest. Bailey v. State, 238 Ark. 210, 381 S.W.2d 467 (1964).

We cannot say that the sentence to imprisonment for 30 years is excessive or that it constitutes cruel and unusual punishment. Formerly the punishment for rape was death or life imprisonment. By Act 362 of 1967, Ark.Stat.Ann. § 41--3403 (Supp.1971), the legislature fixed the punishment at death or from 30 years to life imprisonment. This appellant received the minimum sentence. Inasmuch as the determination of the limits of punishment lies peculiarly within the legislative province, we have no basis for disturbing the verdict. Blake v. State, 244 Ark. 37, 423 S.W.2d 544 (1968); Osborne v. State, 237 Ark. 5, 170, 371 S.W.2d 518 (1963).

About six months after...