Murchison v. State
| Decision Date | 25 January 1971 |
| Docket Number | No. 5520,5520 |
| Citation | 462 S.W.2d 853,249 Ark. 861 |
| Court | Arkansas Supreme Court |
| Parties | Wilburn MURCHISON, Appellant, v. STATE of Arkansas, Appellee. |
Sexton, Wiggins & Christian, Ft. Smith, for appellant.
Joe Purcell, Atty. Gen., Milton Lueken, Asst. Atty. Gen., Little Rock, for appellee.
Wilburn Murchison appeals from his conviction of second degree murder. His three points for reversal are.
I. The prosecuting attorney denied to the defendant a fair trial by suppressing the fact that Detective Earl
Sharp would testify contrary to testimony offered by Detective Floyd Atwell.
II. The prosecutor wrongfully denied to the defendant a fair trial by misquoting statements claimed to have been made by witnesses out of court.
III. The evidence is not sufficient to support the verdict.
We shall take up these points in the order listed:
I.
Detective Floyd Atwell of the Fort Smith Police Department testified that after appellant was arrested on a charge of having murdered one Randall Williams, he made an oral statement to the detective. This statement was that he (Murchison) might have been involved in a fight, and might have stabbed somebody, but that he didn't kill anyone. Thereafter, the following proceedings ensued:
BY MR. SEXTON:
Q. Detective Atwell, did you testify in this courtroom in a preliminary proceeding attendant to the charge against Mr. Murchison?
A. In a motion, yes, Sir.
Q. On that occasion were you asked about what Mr. Murchison had said?
A. Yes, Sir.
Q. And on that occasion was your answer that he said, 'Put anything before me you want to, I'll sign it as long as I don't get more than sixty years, because you've already beat my brains out anyway?'
A. Something similar to that.
Q. Would you tell me as near as you can what you recall that he said?
A. Yes, Sir.
Q. Tell me as near as you can recall what you testified that he said.
A. In regards to giving a statement with reference to the incident, Mr. Murchison stated to type up anything that we desired and that he would sign it as long as it didn't carry over sixty years.
Q. Did he say why he would?
A. No, Sir.
Q. Did you tell the Court in the prior proceeding that he said you had already beaten his brains out anyway?
A. Yes, Sir, he did.
Q. He made that accusation at that time, did he not?
A. Yes, Sir, he did.
Q. As a matter of fact, you had had him by the hair of the head down at the Detective Office, banging him around, hadn't you?
A. No, Sir.
Q. Who was in the room?
A. Mr. Murchison, Earl Sharp and myself.
Q. Was Mr. Sharp always in the room with you and Mr. Murchison?
A. To the best of my knowledge, yes, Sir.
Q. Was there a time when you and Mr. Murchison were in the room by yourselves?
A. Not to my knowledge, no, Sir.
Q. Are you saying that there may have been and you don't recall it?
A. Not to my knowledge.
Q. Who else was present when Mr. Murchison made this oral statement?
A. Myself, Mr. Murchison, Earl Sharp.
Q. Earl Sharp was there?
A. Yes, Sir.
Q. I want to ask you again, Detective Atwell, was there ever a time when you and Mr. Murchison were alone in the basement of the Police Station?
A. Not to my knowledge.
Q. Not to your knowledge?
A. No, Sir.
This issue was raised by appellant's motion for new trial, wherein it was alleged that the prosecuting attorney wrongfully suppressed information in his possession that Detective Earl Sharp had denied that appellant had made any admission as to stabbing any person.
The record reveals that the trial occupied the better part of two days. Detective Atwell testified on the morning of the second day. A morning recess was called by the circuit judge immediately after Atwell left the stand, which was only a very few minutes after appellant's attorney's inquiry about Detective Sharp. The state rested its case as soon as Atwell left the witness stand. Appellant then called two witnesses whose testimony was completed before the noon recess was called at 11:35 a.m. The defendant and one other witness testified after the noon recess, after which the jury was instructed, the arguments of counsel made and the jury verdict returned after deliberation.
At the hearing on the motion for new trial Detective Earl Sharp was called as a witness by appellant and testified substantially as follows:
I was present in the detective bureau on the night Wilburn Murchison was arrested and charged with murder. He did not to my knowledge state in my presence that he might have been involved in a fight and that he might have stabbed somebody, but did not kill anyone. Numerous people were in the room while Murchison was there. Detective Atwell was primarily charged with questioning Murchison. I was present when Murchison was removed from the detective bureau and taken upstairs to be put in the jail. I was in his presence almost continuously from the time he was brought in until the time he was taken upstairs. I was subpoenaed as a witness to appear at the prosecution of Murchison and was in attendance during the first day of the trial. The next day was my day off and I didn't want to come to court unless I had to. I was told to call the next morning. Around 10:30 the next day I called Charles Karr, 1 who told me that the state had rested its case and was not going to use me, but that I would have to stay available in case the defense called me. Karr than asked me if I had heard Murchison make a statement that he might have stabbed someone but didn't kill anyone. I had never been asked this question prior to this time by anyone. I told Karr that I didn't hear Murchison make this statement. About 7:00 p.m. on that day, after the trial was over, Murchison's attorney asked me if I was in the room with Atwell and Murchison continuously. I told him I was not, but that if I was out of the room it was only for a few minutes to go over to the radio room to get the time and complaint number for my reports, and talk to a witness or something to that effect. I also told him that I had told Karr the same thing. No one in the prosecuting attorney's office knew what my testimony would be in this respect until I talked with Karr after the state had rested its case. While I was in the room with Atwell and Murchison, I was typing statements and completing paper work. It is possible that Murchison could have made a statement that I did not hear, while concentrating on this work or during one of my brief absences from the room. I do not deny that such a statement was made. I do not know whether it was made or not.
It was stipulated that: Karr reported that Sharp had stated that he did not hear the statement attributed to Murchison to another deputy prosecuting attorney who was participating in the trial; that numerous officers, witnesses and persons were about while Atwell and Murchison were in the room; that a former chief of police employed as an investigator by appellant's attorney sought to contact Sharp following Atwell's testimony but reported to the attorney in midafternoon that he had been unable to do so.
At this hearing, the prosecuting attorney stated that he told appellant's counsel that Sharp's testimony would be cumulative. In the closing argument appellant's attorney argued to the jury that if Sharp would corroborate Atwell the prosecuting attorney would have had him present. The prosecutor replied that the defense had the same subpoena power as the prosecution and if there was anything anyone would have said favorable to the defendant, he would have had him present. Appellant made no effort to subpoena Sharp, to request a recess or continuance or to request that Detective Sharp be made available. The trial judge found that there was no wilful suppression of evidence by the prosecuting attorney and denied the motion for a new trial.
In many respects there is a rather close analogy between a motion for new trial upon the ground that evidence was suppressed and one upon the ground of newly discovered evidence. In both instances, the primary focus of the inquiry is to determine whether, in light of the circumstances, the defendant has been deprived of a fair trial by the unavailability to him of the particular testimony. See Jackson v. Wainwright, 390 F.2d 288 (5th Cir. 1968); United States ex rel. Meers v. Wilkins, 326 F.2d 135 (2nd Cir. 1964); Kyle v. United States, 297 F.2d 507 (2nd Cir. 1961); Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); The Duty of the Prosecutor to Disclose Exculpatory Evidence, 60 Columbia Law Review 858, 863 (1960).
In making such inquiries, on a motion based on newly discovered evidence, critical points considered are the nature of the testimony, the diligence of the movant in regard to obtaining the testimony and its probable effect on the outcome of the trial. Whittaker v. State, 173 Ark. 1172, 294 S.W. 397; Freeman v. State, 238 Ark. 804, 385 S.W.2d 156; Steel v. State, (Ark., February 10, 1969), 436 S.W.2d 800; Gross v. State, 242 Ark. 142, 412 S.W.2d 279. Whenever a litigant alleges that his right to a fair trial is prejudiced by his being deprived of particular testimony, as for example, in motions for continuance, the party's diligence in the matter, the materiality of the testimony, and its probable effect at the trial are pertinent subjects of inquiry. Striplin v. State, 100 Ark. 132, 139 S.W. 1128.
Testimony which tends only to impeach other testimony is not grounds for a new trial for newly discovered evidence. Freeman v. State, supra; Cooper v. State, (Ark., March 17, 1969), 438 S.W.2d 681. In Smith v. Urban, 245 Ark. 781, 434 S.W.2d 283, we clearly recognized that the bearing of the suppressed evidence upon the questions of guilt or innocence was an...
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