Moore v. State

• Court: Arkansas Supreme Court
• Writing for the Court: ROAF
• Citation: Moore v. State, 915 S.W.2d 284, 323 Ark. 529 (Ark. 1996)
• Decision Date: 19 February 1996
• Docket Number: No. CR,CR
• Parties: Oscar E. MOORE, Appellant, v. STATE of Arkansas, Appellee. 94-590.

Page 284

915 S.W.2d 284

323 Ark. 529

Oscar E. MOORE, Appellant, v. STATE of Arkansas, Appellee.

No. CR 94-590.

Supreme Court of Arkansas.

Feb. 19, 1996.

Appeal from the Calhoun County Circuit Court, No. CR-90-32; John M. Graves, Judge.

James M. Pratt, Jr., Camden, for appellant.

Clint Miller, Dep. Atty. General, Little Rock, for appellee.

ROAF, Justice.

Appellant Oscar E. Moore was convicted of capital murder and rape of a ninety year old neighbor, and of the burglary of her home. He was sentenced as an habitual offender to life without parole for the capital murder. He raises four points on appeal of his conviction and sentence, that the trial court erred in 1) refusing to suppress results of testing of appellant's blood; 2) admitting DNA matching and probability testimony without conducting a preliminary hearing; 3) refusing to grant a mistrial when the state's witness testified that appellant had admitted to committing another murder unrelated to this case; and 4) permitting an investigating officer to give lay opinion testimony that the appellant's tennis shoes matched a footprint found at the scene of the murder.

We agree that the trial court erred in not declaring a mistrial, and reverse and remand. Moore's remaining points are discussed to the extent they are relevant to a second trial.

Facts

On the morning of November 4, 1990, a neighbor went to the home of Ms. Nethealve Cannon and after being unable to get a response from her, kicked in a door and discovered her body. Ms. Cannon had blood on her nose, mouth and legs, and her undergarments were removed; she had been raped, strangled and her home had been burglarized.

Appellant lived with his mother across the road from Ms. Cannon and was present outside her home when her body was discovered. Appellant was heard to say that Ms. Cannon had only had a heart attack and should be taken to the hospital, and that her death would probably be pinned on him because he had been in some trouble lately. A tennis shoe print was discovered in Ms. Cannon's bedroom near where her undergarments were found; the footprint was preserved and photographed.

Five days after Ms. Cannon's body was discovered, Lester "Fleabag" Parker informed police that he had gone to appellant's home the night before Ms. Cannon's body was discovered, to collect money from appellant for a marijuana sale. Parker stated that appellant told him that he did not have the money at that moment, but that he had stolen $7200.00 from Ms. Cannon after killing her. Parker further contended that he did not believe that appellant had killed Ms. Cannon until her body was discovered the next day.

Based on Parker's information, the appellant was arrested, a search warrant was obtained for his home, and a pair of appellant's tennis shoes were recovered. The state crime lab could not conclusively say that appellant's tennis shoes matched the print found in Ms. Cannon's home.

Also, twenty days after the appellant's arrest and several days before the information was filed by the prosecution, investigators filed a Motion for Disclosure requesting that appellant's blood be drawn to compare with semen found in the decedent. Appellant had informed the court the day after his arrest that he was in the process of hiring an attorney, consequently an attorney had not been appointed for him on the date this order was issued and the blood drawn.

The FBI laboratory concluded that the DNA in appellant's blood matched the DNA in the semen recovered from Ms. Cannon and that the chance of randomly selecting an unrelated individual from the black population who would have the same DNA profile as the appellant was 1 in 500,000. The appellant moved to suppress the evidence from the blood alleging it was unlawfully obtained; this motion was denied. The appellant further moved to exclude the DNA testing results which declared the match and calculated the probability of a random match or, in the alternative, to require that the court hold a preliminary hearing, to determine whether the results of the DNA testing should be admitted into evidence in accordance with Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991). The trial court recognized Prater, but declined to order a preliminary hearing, reasoning that DNA testing was no longer a "novel" approach which warranted a preliminary hearing and, further, other jurisdictions had begun to take judicial notice of the reliability of DNA testing.

After hearing all the evidence, including testimony regarding the DNA profiling, the jury found appellant guilty of capital murder, rape and burglary and recommended a sentence of life imprisonment without parole for the capital murder.

a. Mistrial

We agree that the trial court should have granted appellant's motion for mistrial during the testimony of Lester Parker. Parker had testified on direct examination that appellant had told him that he had killed Ms. Cannon on the night before her body was discovered. During the cross-examination by appellant's counsel, the following colloquy occurred:

Q: Now, Fleabag, I don't suppose we could be so lucky as for you to tell us that there was somebody else besides you that heard Oscar Moore on this Saturday night confess to you that he had killed Ms. Cannon?

A: Did ---.

Q: Oscar Moore, on this Saturday night that he confessed to you that he killed Ms. Cannon, there was nobody else present there, was there?

A: No, but he admitted to killing another woman to his brother.

Appellant requested that the comment be struck, the jury be admonished, and made a motion for mistrial. The trial court denied the mistrial after a brief in-chambers hearing, and delivered an admonition to the jurors instructing them to disregard Parker's answer to the defense counsel's question.

Declaring a mistrial is a drastic remedy and proper only where the error is beyond repair and cannot be corrected by any curative relief. Cupples v. State, 318 Ark. 28, 883 S.W.2d 458 (1994). The trial court should resort to mistrial only where the error complained of is so prejudicial that justice cannot be served by continuing the trial or when the fundamental fairness of the trial itself has been manifestly affected. Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995). Since the trial court is in a better position to determine the effect of a remark on the jury, Cupples, supra, it has wide discretion in granting or denying a motion for a mistrial and its discretion will not be disturbed except where there is an abuse of discretion or manifest prejudice to the movant. Stewart, supra. Finally, an admonition to the jury usually cures a prejudicial statement unless it is so patently inflammatory that justice could not be served by continuing the trial. King v. State, 317 Ark. 293, 877 S.W.2d 583 (1994).

We agree that Parker's unresponsive testimony that the appellant had admitted he killed another woman was so prejudicial that it could not be cured by an admonition to the jury. Here the trial court's denial of the motion for mistrial was abuse of discretion in the face of such a patently inflammatory and prejudicial statement. See Lackey v. State, 283 Ark. 150, 671 S.W.2d 757 (1984); King v. State, 9 Ark.App. 295, 658 S.W.2d 434 (1983).

b. Suppression of blood tests

Appellant argues that his blood was drawn over his objection and when he was not represented by counsel, even though he had requested permission to talk to a lawyer immediately before his blood was drawn.

Prior to trial, appellant's counsel filed a motion to suppress the results of any scientific tests performed on the blood samples taken from appellant, asserting that the State had the samples drawn from appellant in violation of his constitutional rights under the Fourth and Fifth Amendments to the United States Constitution and in violation of Ark.R.Crim.P. 18.1. The motion was denied and appellant raises the same arguments on appeal.

Fifth Amendment

We first address the appellant's Fifth Amendment argument because this claim may be more readily resolved. The appellant contends that his right to remain silent and not incriminate himself has been violated by the taking of his blood. He invokes the Fifth Amendment but cites no further authority; his argument is untenable. The protections of the Fifth Amendment do not extend to demonstrative, physical tests, but are intended to immunize a defendant from providing the State with evidence of a testimonial or communicative nature. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). In determining whether evidence is testimonial in nature the courts look to see if the activity performed is for the purpose of communication, such as a gesture; if it is, the activity is privileged. Urquhart v. State, 273 Ark. 486, 621 S.W.2d 218 (1981). In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the United States Supreme Court determined that the privilege against self-incrimination does not bar compelled intrusions into the body for blood to be analyzed for alcohol content. Appellant's Fifth Amendment argument clearly has no merit.

Fourth Amendment

Appellant also asserts that the order for blood withdrawal and the taking of the blood against his will constituted an unreasonable search and seizure forbidden by the Fourth and Fourteenth Amendments of the United States Constitution. There are two components to this argument. Appellant first argues that the search was not proper because the affidavit for probable cause to arrest him was based on the statement of Lester Parker, an unreliable informant. However, at issue is the probable cause which existed for the issuance of the order for withdrawal of appellant's blood, not his arrest. This court applies a "totality of circumstances" approach in determining whether the neutral and detached magistrate had a substantial basis for concluding that probable cause existed. Rainwater v. State, 302 Ark. 492, 791 S.W.2d 688 (1990).

The task of the...