Oliver v. State
| Decision Date | 09 October 1995 |
| Docket Number | No. CR,CR |
| Parties | Timothy Allen OLIVER, Appellant, v. STATE of Arkansas, Appellee. 94-113. |
| Court | Arkansas Supreme Court |
Dana A. Reece, Little Rock, for Appellant.
Kent G. Holt, Asst. Attorney General, Little Rock, for Appellee.
The appellant, Timothy Oliver, was convicted of two counts of capital murder and sentenced to life without parole. On appeal, he asserts three points of error: (1) the trial court erred in refusing to hear all the evidence for his motion to suppress hearing and in admitting his confession into evidence when he could not have knowingly, voluntarily, and intelligently waived his constitutional rights; (2) the trial court erred in admitting his confession because it was the fruit of an unlawful arrest; and (3) jury misconduct, of which he was unaware until after trial, prejudiced his chances for a fair trial. We find no merit to his arguments and affirm.
On March 24, 1992, the bodies of Bobby and Charlene Friend were discovered in the bedroom of their home in DeQueen, Arkansas. Both husband and wife were victims of bludgeoning and multiple stab wounds. The Arkansas State Police attempted to locate the couple's adopted son, Michael, to inform him of the event. Charlene Friend's car, a silver Dodge Conquest, was missing from the residence and was later located in Hot Springs at a home where George Rhoades, a friend of Michael's, was living. At approximately 3:00 a.m. on March 25, 1992, Investigator Hayes McWhirter of the State Police stopped Rhoades and the appellant, Timothy Oliver, age fifteen, in Hot Springs. Both boys voluntarily went to the Hot Springs Police Department, where Oliver initially told McWhirter that he did not know where the city of DeQueen was located. A short while later, in the presence of his mother, Oliver gave the following statement in the absence of Miranda warnings:
This is taken at 4 a.m. in the Hot Springs Police Department. On Saturday afternoon (March 21, 1992) around 5 p.m., me Mike Friend, Mo-Jo (George Rhoades) and Ricky Dawson were in Mo-Jo's truck and went to DeQueen and the first place we stopped was at the skating rink. I went in to skate, Ricky was outside and Mo-Jo, or George, took Mike home. He was gone about 30 minutes. Mo-Jo came in and started skating. We got ready to leave the skating rink around 11 p.m. When I got outside, Mike was in the silver car. Me, Mo-Jo, Vickie and James Watson who lives in DeQueen went to the Pizza Hut. Mike wasn't with us. We ate pizza and had told Mike to meet us at the gas station. We met Mike at the gas station at DeQueen. We followed Mike back to Hot Springs. He was driving the silver car. He turned off when we got to Hot Springs. We saw Mike Sunday afternoon and he spent the night at Mo-Jo's house Sunday night.
Oliver signed this statement and left the police station shortly after the interview. Later on the same date, Friend confessed to the double homicide of his parents and also implicated his three friends, Oliver, Rhoades, and Ricky Dawson. Oliver was arrested pursuant to a warrant the next day, March 26, 1992. After being verbally advised of his Miranda rights and signing a waiver-of-rights form, Oliver gave a detailed confession to police, which included the following:
Sometime back, Mike Friend talked to me, Mo-Jo, George Rhoades, and Ricky Dawson about wanting to kill his dad, Mike's dad. Mike has talked to all of us at different times about how to kill his step-father, Bobby. We have talked about using poison and shooting him. Friday night, 3/20 of '92, we were at George's house talking about going to DeQueen Saturday night. Saturday afternoon we were at George's house. We talked about how we were going to kill him and what everyone was going to use. I decided I would use the ball bat, George would use some type of two-bladed knife, sharp on both sides. Ricky was going to use a large stick about the length of a baseball bat and Mike was going to be using an aluminum sword, a practice sword. It was only sharp on the end. We all loaded up in George's truck and went to DeQueen. We hadn't been smoking or using any drugs or drinking. We got to DeQueen, and me and George got out at the skating rink. Mike and Ricky were in the truck riding around. Around 11 p.m., Mike and Ricky picked me and George up. We all went to Pizza Hut and had a pizza. After we left the Pizza Hut, we went straight to Mike's house. On the way out there, Mike told everyone what he wanted them to do. Mike had already told us in Hot Springs that his father had 3,000 dollars in his billfold, and that he would split the money with us to help him kill his dad. Mike told us he would go in the house first because he knew his dad had a gun under the mattress and would keep him from getting it. Mike went in the house first, then George, then me, and Ricky last. Mike went to his father's side of the bed. I was behind Mike. George was at the end of the bed by his mother's side, and Ricky at the end of the bed. Ricky turned the light on and Mike started stabbing Dad as fast as he could. The end of the sword bent. His dad raised up and I hit him in the left side of the head above his eye. Mike took the bat from me and hit his dad in the head. I got the bat back and hit him in the head three more times while his head was laying on the nightstand. Ricky took the bat from me and hit the lady with it. She was face down when Ricky hit her. George hit the man in the head with the bat also before Ricky took the bat. I saw Ricky hit the lady twice with the bat. I guess George cut her throat because he had talked about it before we got to the house, and he had the razor blade or whatever it was. Mike was screaming at his dad. I guess he was cussing him out. Mike told Mo-Jo to hand him his mother's purse. Mike got the keys to the Chrysler out and some money. Mike already had some money in his hand from his dad's billfold. We then went to the front room, living room, Mike knocked the end table over and I knocked the VCR off the T.V. Me and Ricky ran down to the truck. I forgot to tell you earlier that we parked the truck down the road when we first got there and walked to the house. This way no one would see the truck at Mike's house. Mike and George ran around the side of the house for something, then I saw the headlights come on in the silver Conquest car. Mike flagged us down and told us to follow them to the gas station. I think we went to the gas station at the four way stop in DeQueen. When George got out of the car, he had changed pants. He had on a pair of shorts. While he was in the house, he had on long pants. Between DeQueen and Hot Springs we pulled over and threw everything in the woods. We threw the broken stick, sword, razor blade, and George's gloves in the woods. Everything is on the right hand side of the highway. I forgot to tell you, George had on a pair of gloves while he was in the house. We all then went back to Hot Springs to George's house. We didn't talk about it because every time it was mentioned, someone would say not talk about it. I know the baseball bat is at George's house. It is black with a brown handle. Later Sunday, we talked about how everyone did what. Mike said he was sorry that there wasn't any money. We said that we would say nothing to no one. Mike said if we got caught he would take the blame.
Oliver filed a motion to suppress both statements. Following a Denno hearing, the trial court suppressed the first statement, but held the second statement was admissible. Prior to trial, the trial court ruled that the State was prohibited from seeking the death penalty under Thompson v. Oklahoma, 487 U.S. 815, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988), as Oliver was less than sixteen years of age at the time of the commission of the offense. 1 At trial, Oliver was found guilty of two counts of capital murder and sentenced to life without parole. While Oliver filed a motion for new trial, neither the abstract nor the record reflects whether the trial court ruled on the motion. Oliver filed a timely notice of appeal.
Oliver asserts the trial court erred in refusing to hear the testimony of his expert, Dr. Douglas Stephens, at a proposed reopened Denno hearing. The original Denno hearing was held on May 17, 1993. After hearing testimony of all the witnesses, the trial court denied the motion to suppress. However, at the request of Oliver's counsel, the trial court agreed to reopen the hearing to permit Oliver to present the testimony of Dr. Stephens, who was absent from the scheduled hearing. One month after the original hearing, Oliver's counsel sent a letter to the trial court, in which she enclosed Dr. Stephens's report.
On the first day of trial, June 21, 1993, during the prosecutor's opening statement, Oliver's counsel realized that the trial court had not yet reopened the suppression hearing, and approached the bench. Due to the fact that Investigator McWhirter, whom Oliver's counsel needed present for the hearing, had been released for the day, the trial court agreed to recess for the day and hold a re-opened Denno hearing the following morning. The trial court instructed the parties:
I want the lawyers here by 8:30. I may be five minutes late. We are usually here by 8:35. We have had a lot of people tardy today and it delays everything, so I want y'all to put your watches on tonight and be here on time so we won't have so many delays and we won't have to look for you between every break. Does everybody understand that? Let's get started at 8:30 in the morning. Somebody tell Officer McWhirter to be here at 8:30 in the morning.
According to counsel for Oliver, she arrived around 8:45 a.m. the following morning. The record indicates that the trial court conducted an in camera hearing at 8:55 a.m. Noting that counsel had been late for every hearing the preceding day, the trial court held her in contempt, fined her...
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