Miller v. State

• Decision Date: 06 October 1980
• Docket Number: No. CR,CR
• Citation: 605 S.W.2d 430,269 Ark. 341
• Parties: Eddie Lee MILLER, Appellant, v. STATE of Arkansas, Appellee. 79-80.
• Court: Arkansas Supreme Court

Page 430

605 S.W.2d 430

269 Ark. 341

Eddie Lee MILLER, Appellant, v. STATE of Arkansas, Appellee.

No. CR 79-80.

Supreme Court of Arkansas.

Oct. 6, 1980.

[269 Ark. 345] Bill E. Ross, Blytheville, for appellant.

Steve Clark, Atty. Gen. by Joseph H. Purvis, Deputy Atty. Gen., Little Rock, for appellee.

STROUD, Justice.

Appellant was convicted of capital murder in the robbery and killing on November 3, 1978, of W. F. Bolin, a Blytheville shopkeeper, and sentenced to death by electrocution. Alleging numerous constitutional and procedural irregularities as points for reversal, appellant brings this appeal. Finding no error, we affirm the conviction and the sentence of the jury.

POINT I

THE COURT ERRED IN FAILURE TO GRANT APPELLANT'S MOTION TO

SUPPRESS EVIDENCE SEIZED UNDER THE AUTHORITY OF A

SEARCH WARRANT.

Appellant contends there was not probable cause to justify the issuance of the search warrant and any evidence seized pursuant to it should have been suppressed. The Blytheville Chief of Police, R. J. Cox, contacted Judge A. S. Harrison in Jonesboro during the evening of November 3 and presented the judge with his affidavit and testimony tending to support the issuance of the search warrant for the home and automobile of appellant. Appellant had been arrested earlier that day pursuant to an arrest warrant, the validity of which was not challenged by appellant. When the officers went to appellant's house shortly after the killing with a warrant for his arrest, they were unable to gain entrance. Appellant's wife was next door and she finally admitted that appellant was in the house, but she said her keys were locked up in the house. As the officers were unable to elicit a response from appellant, they forced open the front door. Appellant was hiding in the attic, but he came down and was taken into custody. Chief of Police Cox stated in his affidavit for a search warrant that the circumstances led him to believe that appellant had concealed the murder weapon and money in the attic where he had been hiding immediately prior to his arrest. The affidavit recited the robbery and murder of W. F. Bolin earlier that day, the forced entry of the residence pursuant to the arrest warrant, the surrender of appellant from the attic without an officer making entry into the attic, and the discovery of a sawed-off shotgun in plain view in the house. Appellant argues that the affidavit contains conclusions of the police chief rather than facts upon which the judge could make an independent determination of reasonableness. An affidavit for a search warrant must contain affirmative allegations of fact, not mere affirmations of suspicion, from which the judge may independently decide for himself whether there is probable cause for the search. Ferguson v. State, 249 Ark. 38, 458 S.W.2d 383 (1970). The judge must not merely accept without question the conclusions of the officer. Walton & Fuller v. State, 245 Ark. 84, 431 S.W.2d 462 (1968). But the affidavits for search warrants must be tested and interpreted by courts in a commonsense and realistic fashion. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); Cary v. State, 259 Ark. 510, 534 S.W.2d 230 (1976).

Both Chief of Police Cox and Judge Harrison were entitled to rely on the validity of the warrant of arrest, as the warrant was valid on its face and the attorney for appellant did not challenge its validity. We also find that Judge Harrison had sufficient information from the affidavit and sworn testimony upon which to base his finding that there was reasonable cause to believe the evidence sought would be found in appellant's house or automobile. Appellant urges that the search warrant was illegally issued because Judge Harrison considered information other than that contained in the affidavit and sworn testimony. However, a reading of the transcript clearly indicates although he did receive other information concerning the urgent need for a nighttime search, his determination of probable cause for issuance of the search warrant was based only on the affidavit and the sworn testimony.

Appellant also contends that the warrant should not have been issued for nighttime hours. Rule 13.2(c) of the Arkansas Rules of Criminal Procedure provides that search warrants shall be executed between 6:00 a. m. and 8:00 p. m. except for

stated exceptions. One of the exceptions is when the objects to be seized are in danger of imminent removal. Rule 13.2(c)(ii). The officers were so concerned, following the arrest of appellant, that his wife would dispose of the murder weapon and hide the stolen money that they left officers at the home for several hours awaiting the search warrant. Inasmuch as the officers would likely have been justified in searching the attic incident to the arrest without a search warrant pursuant to Rule 12.5, we think they demonstrated commendable restraint in deferring the attic search until the search warrant issued. There was ample evidence of imminent removal of the objects of the search to warrant Judge Harrison to authorize a nighttime search. It is also rather ridiculous to suggest that the officers should have continued to watch the entrance to the attic until 6:00 a. m. so a daylight search could be made.

POINT II

THE TRIAL COURT ERRED IN NOT EXCLUDING STATEMENTS ALLEGED TO

HAVE BEEN OBTAINED FROM APPELLANT AFTER

CONFRONTATION WITH EVIDENCE OBTAINED BY

AN UNLAWFUL SEARCH AND SEIZURE.

Appellant bases this argument solely on the "fruit of the poisonous tree" doctrine set out in Wong Sun v. U. S., 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), where evidence obtained as a result of earlier unlawful acts was held to be "tainted" by the previous illegality and, therefore, inadmissible. However, as we have previously upheld the search of appellant's house, this argument must fall. Since the tree was not "poisonous," neither was the fruit.

POINT III

THE COURT ERRED IN NOT SUSTAINING THE OBJECTION TO THE

ARGUMENT OF THE DEPUTY PROSECUTING ATTORNEY IN THE

CLOSING OF THE PENALTY STAGE OF THE

APPELLANT'S TRIAL.

Appellant's point for error is due to the following argument of the Deputy Prosecuting Attorney in the closing of the penalty stage of appellant's trial:

I don't think that you can lay down at night, sleep knowing that you have allowed this man to live with the possibility of escaping again. He has already escaped once. He is an escapist.

Ladies and gentlemen, I don't mean to create fear in you, but if you did do that, sentence him to life imprisonment with his having escaped once already and plan on holding him in any institution, I don't care what kind of institution it is, any institution for forty years or better, you are taking a terrific risk.

Appellant's counsel did not request the court to admonish the jury concerning these remarks. He did move for a mistrial based on them, but this motion was denied by the trial court. Appellant contends that the only logical inference that can be drawn from the statements is that the deputy prosecutor was telling the members of the jury that their lives would be in danger unless they sentenced appellant to death. However, the deputy prosecutor went on to explain that he was interrupted and that he was about to explain that the risk would be to members of society in general, not to the members of the jury. The trial court accepted this explanation, and, as noted, denied appellant's motion for mistrial. We will not reverse the action of the trial court in matters pertaining to its controlling, supervising, and determining the propriety of the arguments of counsel in the absence of manifest gross abuse. Rowland v. State, 263 Ark. 77, 562 S.W.2d 590 (1978); Perry v. State, 255 Ark. 378, 500 S.W.2d 387 (1973).

Had appellant's counsel requested the court to admonish the jury, the question of refusal would have been presented, but the failure to give an admonitory instruction is not prejudicial error in the absence of a request. Petron v. State, 252 Ark. 945, 481 S.W.2d 722 (1972); Clark v. State, 246 Ark. 1151, 442 S.W.2d 225 (1969). Prior to the closing arguments, the court had given the jury an instruction that "closing arguments of the attorney are not evidence"

and that "remarks of attorneys having no basis in the evidence should be disregarded by you." We find no abuse of discretion by the trial court in denying appellant's motion for a mistrial. A mistrial is an extreme and drastic remedy which should be resorted to only when there has been an error so prejudicial that justice could not be served by continuing the trial. Limber v. State, 264 Ark. 479, 572 S.W.2d 402 (1978); Holmes v. State, 262 Ark. 683, 561 S.W.2d 56 (1978).

POINT IV

THE COURT ERRED IN ALLOWING THE JUDGMENTS OF CONVICTION

REFLECTING A NON EXISTING CRIME AT THE TIME OF THE

OCCURRENCE TO BE INTRODUCED BY THE STATE

AS AGGRAVATING CIRCUMSTANCES.

In 1971 appellant had pleaded guilty to several charges of "armed robbery" and these convictions were brought out by the State on cross-examination of appellant, who freely admitted the convictions. Appellant now asserts that since there was no crime technically labeled "armed robbery" when he pleaded guilty to those charges in 1971, the State should not be able to introduce the judgments of conviction as aggravating circumstances in the penalty stage of the present case. Also, appellant maintains that since the convictions were brought out during the guilt/innocence phase of his trial, they should not be brought out again in the penalty phase because this would be cumulative and repetitious and solely for the purpose of inflaming the jury. Appellant is mistaken on both of these contentions. The time to challenge the technical accuracy of the judgments of conviction for "armed robbery" would have been in 1971, not in 1978. It is also difficult to imagine that appellant would have pled guilty to "armed robbery" if he had not used a weapon during the perpetration of...