Morris v. State

• Decision Date: 25 June 1990
• Docket Number: No. CR,CR
• Citation: 792 S.W.2d 288,302 Ark. 532
• Parties: Alvin Edward MORRIS a/k/a Eddie Morris, Appellant, v. STATE of Arkansas, Appellee. 89-144.
• Court: Arkansas Supreme Court

Page 288

792 S.W.2d 288

302 Ark. 532

Alvin Edward MORRIS a/k/a Eddie Morris, Appellant, v. STATE of Arkansas, Appellee.

No. CR 89-144.

Supreme Court of Arkansas.

June 25, 1990.

John W. Murphy, Fayetteville, for appellant.

John D. Harris, Asst. Atty. Gen., Little Rock, for appellee.

TURNER, Justice.

Alvin Edward Morris seeks reversal of a conviction of capital murder and a sentence of life imprisonment without parole. We find no error in the charging or in the trial and thus affirm.

The appellant's companion, Kevin Burkhart, was convicted in a separate trial, and that conviction was recently affirmed in Burkhart v. State, 301 Ark. 543, 785 S.W.2d 460 (1990). A recitation of the facts may be found in Burkhart; we therefore limit a restatement only to the facts necessary to an understanding and a determination of the issues raised by the appellant for reversal.

The appellant was convicted for his participation in the robbery and death by beating of an elderly couple, Mr. and Mrs. Victor Magnus, in their house at Mountain Home on June 29, 1988. He was arrested in Ozark, Alabama, on July 5, 1988, following a phone call to Mountain Home police from Dale Burkhart, brother of Kevin Burkhart. Dale Burkhart informed the police that the appellant and Kevin were in Ozark, Alabama, and that Kevin had told him about the robbery and beating of Mr. and Mrs. Magnus. Arkansas law enforcement officials then went to Alabama and, with the assistance of Alabama police, arrested and interrogated the appellant and Kevin Burkhart.

The first of six points of error asserted by the appellant alleges that his confession was involuntary and should have been suppressed. The appellant says he was awakened by the police, "dragged" from the house in handcuffs, threatened while on the way to the police station, placed in an 8' X 14' room and read his rights (which he later said he did not understand), and then subjected to interrogation. During the first period of interrogation, the appellant consistently denied any knowledge of the crime. Officers then brought in Dale Burkhart, who recited a conversation he had had with Kevin Burkhart in the presence of the appellant. The appellant then confessed his part in the crimes at length and in great detail.

At the suppression hearing, the officers denied having abused or coerced the appellant. Their testimony established that the appellant had been fully and completely advised of his rights and that he had initialed each affirmative response and had signed the rights form. The police recorded the interrogation with the appellant's knowledge. The transcript of the recording further establishes that the appellant again acknowledged that he was aware of his rights and understood them.

Custodial statements are presumed to be involuntary. Fleming v. State, 284 Ark. 307, 681 S.W.2d 390 (1984). The state must therefore make a prima facie showing that the accused knowingly, voluntarily, and intelligently waived his right to remain silent. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Williamson v. State, 277 Ark. 52, 639 S.W.2d 55 (1982); Hunes v. State, 274 Ark. 268, 623 S.W.2d 835 (1981). When the issue is raised on appeal, this court independently reviews the totality of the circumstances and will reverse only if the trial court's finding is clearly against the preponderance of the evidence. Fleming v. State; Williamson v. State; Hunes v. State.

The recorded statements given by the appellant, together with the record of the proceedings on the motion to suppress, clearly support the trial court's refusal to grant the motion to suppress the admission of the confession.

The appellant next contends that the trial court erred in permitting the introduction into evidence of certain photographs of the victims. The admissibility of the photographs is a matter within the sound discretion of the trial court, and its decision will not be reversed without a showing of a clear abuse of discretion. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). It matters not that the photographs are cumulative to other evidence. Fairchild v. State, 284 Ark. 289, 681 S.W.2d 380 (1984). Even inflamatory photographs are admissible if they tend to shed light on an issue, if they are useful to enable a witness to better describe the objects portrayed, or if they better enable the jury to understand the testimony. Gardner v. State; Hallman v. State, 288 Ark. 448, 706 S.W.2d 381 (1986); Fairchild v. State.

Twenty-six photographs were admitted into evidence and, of those, only four depicted the victims. Only two of the photographs clearly showed the victim's head and the injuries. One of those two photographs showed the imprint of a shoe sole on the throat of the victim indicating the type of assault. Further, this imprint was connnected to other evidence uncovered by the police, such as the shoes worn by one of the perpetrators. There was no abuse of discretion by the trial court in permitting the introduction of the photographs.

As a third ground for reversal, the appellant argues that the trial court should have granted the appellant's motion for a change of venue.

A criminal case may be removed to the circuit court of another county upon a showing that the minds of the inhabitants of the county in which the cause is pending are so prejudiced against the defendant that a fair and impartial trial cannot be had. Ark.Code Ann. § 16-88-201 (1987). The burden is on the defendant to show the general mindset of the populace and the concomitant impossibility of receiving a fair trial. Richardson v. State, 292 Ark. 140, 728 S.W.2d 189 (1987). In making a determination of the accused's ability or inability to receive a fair trial, the trial court has an opportunity to observe witnesses and to make a determination as to whether or not a particular mind-set or prejudice pervades the entire county. We will not disturb the finding of the trial court in the absence of an abuse of discretion. See Gardner v. State; Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986); Hill v. State, 275 Ark. 71, 628 S.W.2d 284 (1982).

No such abuse of discretion is shown here. Moreover, the appellant did not exercise all of his peremptory challenges to jurors chosen. We have held that an appellant, in order to prevail on this issue on appeal, must demonstrate that he was forced to accept a juror against his wishes after exhaustion of all peremptory challenges. See Gardner v. State.

The fourth assertion of error is directed to the admission of certain evidence as an "adoptive admission". Arkansas Rules of Evidence Rule 801(d)(2)(ii) provides that a statement is not hearsay if it is an admission by a party-opponent and is "a statement of which he has manifested his adoption or belief in its truth."

Stated another way, the admissibility is tested by whether a reasonable person, under the circumstances, would have been expected to deny the statements if they were in fact untrue.

Dale Burkhart testified that when he met his brother and the appellant at the Ozark, Alabama, bus station, Kevin Burkhart said that they needed to go somewhere to talk. The three then drove to an all-night truck stop/restaurant. They sat in a booth with the Burkharts facing each other and the appellant sitting next to Kevin Burkhart. Kevin then told his brother all of the details of the crime, including even a description of the...