O'Neal v. State
| Decision Date | 11 December 1972 |
| Docket Number | No. 5729,5729 |
| Citation | 253 Ark. 574,487 S.W.2d 618 |
| Parties | Enous O'NEAL, Jr., Appellant, v. STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
Ralph C. Murray, West Helena, Garland Q. Ridenour, Helena, for appellant.
Ray Thornton, Atty. Gen. by John D. Bridgforth, Asst. Atty. Gen., Little Rock, for appellee.
Enous O'Neal, Jr., was convicted of the crime of murder in the first degree and his punishment assessed at death in the electric chair. From the judgment so entered, appellant brings this appeal. The killing occurred on the night of March 1, 1971, appellant shooting Robert Nathan. Following the shooting, O'Neal immediately went to Chicago, Illinois, but, according to testimony, called Phillips County officers, and told them where he was located, after which the Arkansas officers contacted the Chicago Police Department, advising that they held a warrant for O'Neal, and asking the Chicago police to take him into custody. Officer Lawhon, a Deputy Sheriff of Phillips County, testified that O'Neal was advised of his rights at that time; that subsequently he called O'Neal, at which time, two of O'Neal's brothers talked with him and Lawhon again talked with him, advising that they held a first degree murder warrant for his arrest. Lawhon stated that O'Neal told him that he killed Nathan but that it was an accident. Detective Patrick Carroll of the Criminal Investigation Division of the Chicago Police Department, testified that he, along with other officers, in response to the message from the Arkansas officers, went to 5714 South Wabash in Chicago where they found the defendant; that they explained to him that they had a warrant for his arrest and he was at that time orally advised of his constitutional rights. A woman, Fanny Mae Hunt, was with the defendant and the officers were told that she was his wife. O'Neal was taken to a police station and again informed of his constitutional rights with a 'Miranda' card. O'Neal was also told that his automobile was allegedly involved, at which time he stated that the car was being repaired, giving the location of the garage, and appellant further stated that he had nothing to hide and gave the officers permission to search the house and the car, giving Detective Carroll the keys to the automobile. Both O'Neal and Miss Hunt stated that she was a co-owner of the car and Miss Hunt accompanied the officers when the car was searched. The door was opened with a key and a search made of the inside of the automobile and no weapon was found. The officers checked under the hood and then tried the key to the trunk lock which would insert but would not turn. The back seat was then taken out of the car interior and the officers could view what appeared to be a gun case butt. Miss Hunt did not have her keys and the officers advised that they would like to search the trunk and would replace the lock, and she gave her permission. Upon forcing the trunk lid, a shotgun wrapped in sheets was observed and taken from the car. Subsequent investigation and tests established that this was the weapon that fired the shots that killed Nathan. For reversal, it is first asserted that appellant's motion to suppress the shotgun as evidence should have been granted since there was no warrant obtained for the search. We find no merit in this contention for we think it is clearly shown that appellant waived the requirement of a warrant. On trial, O'Neal testified that he did not give his permission, but Carroll and M. F. Caccitiolo, a Chicago police officer, both testified that O'Neal and the co-owner of the car, Miss Hunt, did grant permission, and that the keys were handed to the officers. See Dokes v. State, 241 Ark. 720, 409 S.W.2d 827; Asher & Bradford v. City of Little Rock, 248 Ark. 96, 449 S.W.2d 933, and cases cited therein. The trial court found that consent had been given and we are of the opinion that the evidence supports that finding. Actually, it would not appear that the taking of the shotgun, and its subsequent introduction into evidence could have been prejudicial for O'Neal did not deny the shooting; rather he admitted that he shot Nathan, but said that he was firing at a deer and accidentally his his companion.
It is next asserted that the court erred in excluding for cause two jurors who were opposed to capital punishment. This contention is based on the case of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776. We cannot agree that that case is controlling in the present instance for the two jurors both emphatically answered, during the voir dire examination, that they would not vote for the death penalty. One answered 'No' and the other, when asked 'Do those words mean that you just would not vote for the death penalty?', replied, 'Yes sir, because I don't believe in it'.
It is next asserted that the trial court erred in overruling the motion to suppress as evidence certain statements and admissions made by appellant for the reason that there was no showing that the Miranda warnings had been given. We have already commented that the Chicago police officers testified that O'Neal was informed of his constitutional rights as required in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, not once, but twice. The evidence further shows that when Police Chief Kenneth Winfrey of the Helena Police Department and Deputy Sheriff Lawhon took appellant into custody for the purpose of returning him to Arkansas, that he was again advised of his rights by both of the officers. According to their testimony, on the return trip, O'Neal several times voluntarily and of his own accord, made statements referring to the shooting to the effect that he killed Nathan, but said it was an accident. Lawhon said that three or four days after O'Neal was placed in jail, he sent word that he wished to talk with Lawhon and that officer, accompanied by Deputy Sheriff Gunn, went to the jail and appellant stated that he desired to tell them how the killing occurred. According to Lawhon:
'He said that 'I killed Bugeye,' as he referred to him, Robert Nathan. 'But it was not murder, it was an accident.' Said, 'Up there in the curve on Springdale Road,' said, 'You know, that's a deer crossing there and a deer come across the road,' and said, 'I got out and took the shotgun and just as I through (threw) upon the deer, Bugeye,' who was Robert Nathan, 'ran in between us and he took the charge of shot and that's what killed him.' * * * Or in my opinion I figured they were Number 6. 'And could you explain the second shot,' Mr. Gunn, Deputy Sheriff Gunn was standing there with me. He said, 'Yeah, he was laying there kicking and I shot him again to get him out of his misery.''
The evidence was overwhelming that O'Neal was advised of his constitutional rights and the statements made were entirely voluntary.
Next, error was asserted due to the admission of the shotgun, a spent shell, the shirt of the deceased and certain photographs of the automobile taken in Chicago. It might be mentioned that no objection was made to the introduction of the shell and the shirt and we again mention that the introduction of the shotgun (or the shell) could not have been prejudicial since O'Neal himself testified that he killed Nathan with the shotgun. The shirt was introduced by Officer Lawhon who testified that he, with othe rofficers, cut if off the body at the hospital. The testimony reflected that the shirt had blood on it and two holes made by a shotgun in it, and certainly was admissible as reflecting the manner of the killing, the evidence also reflecting that the shirt had been in the possession of Chief Winfrey since being taken. Officer Caccitiolo testified that the shotgun was the same one found in appellant's car, the identification being based on the fact that the serial number on the gun was the same as recorded in his report. After being turned over to Deputy...
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