Pickens v. State

• Decision Date: 06 June 1977
• Docket Number: No. CR76-186,CR76-186
• Citation: 551 S.W.2d 212,261 Ark. 756
• Parties: Edward Charles PICKENS a/k/a Larry Coakley, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 212

551 S.W.2d 212

261 Ark. 756

Edward Charles PICKENS a/k/a Larry Coakley, Appellant, v. STATE of Arkansas, Appellee.

No. CR76-186.

Supreme Court of Arkansas, In Banc.

June 6, 1977.

Willis Plant, Clarendon, for appellant.

Jim Guy Tucker, Atty. Gen., by Jackson M. Jones and Robert A. Newcomb, Asst. Attys. Gen., Little Rock, for appellee.

BYRD, Justice.

Cloud's Grocery store at Casscoe, Arkansas was held up by three Negro men wielding a sawed-off shot gun and a .22 pistol. After raping the female clerk, the holdup men caused the woman, the store's owner and seven of the customers, all of whom had been robbed, to lie on the floor with their faces down. While in that position, seven people were shot by a .22 pistol. The .22 pistol was reloaded and fired a second time into several of the victims. Harold Goacher described the holdup men as being two dark Negro men and a light colored one. It was Goacher's testimony that the two dark Negro men took turns in firing the .22 pistol. Appellant Edward Charles Pickens, a/k/a Larry Coakley, an ex-convict from the State of Michigan, admits that he was present when the shooting occurred but insists that the light colored Negro man was the one who shot the victims in order to prevent the victims from identifying the holdup men. Some, but not all of the victims survived. The jury found appellant guilty of Capital Felony Murder of Wes Nobles, one of the Negro customers at the grocery store. After hearing additional testimony in a bifurcated trial the jury returned a verdict fixing appellant's punishment at death by electrocution. For reversal, appellant raises the issues hereinafter discussed.

POINT I. We find no merit to appellant's contention that it was error for the trial court to allow two Deputy Attorneys General to act as special prosecutors. This Court has long recognized that it is permissible for the prosecuting attorney to request the assistance of special counsel in the prosecution of a criminal case; Coon v. State, 109 Ark. 346, 160 S.W. 226 (1913). No abuse of the trial court's discretion is shown in the case before us.

POINT II. The record shows that appellant moved to adopt the pretrial pleadings and motions filed on behalf of Sherwood Vincent Gooch. The trial court permitted appellant to adopt Gooch's motion but in doing so specifically provided that the change of venue in appellant's case would be to the Southern District of Prairie County rather than to the Northern District in Gooch's case. Appellant did not thereafter object to the venue and cannot now contend that the trial was held in an improper place.

POINT III. After the trial but before the transcript of the testimony was prepared, the home of the official court reporter was destroyed by fire. Appellant at that time moved for a new trial on the basis that the tape recordings made by the court reporter during the course of the proceedings were destroyed and consequently, the court reporter could not necessarily make a full, complete, exact and accurate transcription of the record at trial. Appellant's motion recognized, however, that the court reporter still had her shorthand notes. The trial court, in overruling appellant's motion, made the following finding, to-wit:

". . . That from the reporter's shorthand record of the trial proceeding the court reporter has prepared a true and accurate transcription of the trial proceeding herein and certified same in the usual manner and a copy thereof has been filed with the Circuit Court Clerk at DeValls Bluff, Arkansas and also a copy of same has been delivered to the attorney for the defendant on September 7, 1976. That defendant's attorney was advised that if he could show the Court within twelve days wherein any material mistake or objection was made and/or omitted, the transcript would be corrected accordingly. There has been no such mistake or omission presented to the Court."

On the basis of the trial court's finding, we must conclude that the motion for new trial was properly overruled. We note that in some instances there are some omissions of isolated words in the transcript, however, appellant does not contend that the transcript before the Court omits any matters of consequence.

POINT IV. Appellant contends that he was denied his Sixth Amendment right to counsel at two critical stages of the prosecution which also had the effect of vitiating his Fifth Amendment rights. These contentions have no merit. The totality of the evidence shows that appellant voluntarily waived his right to counsel and signed a confession after he was fully informed of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The record also shows that appellant voluntarily waived his right to counsel in the line-up identification conducted after his arrest by the Memphis, Tennessee Police.

For the first time on appeal appellant contends that the signing of the rights waiver by appellant did not appear in the response to the Bill of Particulars filed by the State. In making the suggestion, appellant does not intimate that he was in any manner prejudiced by the State's alleged failure. Furthermore, the Bill of Particulars Item 1(29) lists "Line-up rights form" as having been furnished to the attorney for appellant. See also Item 4(1) of the Bill of Particulars which refers to a waiver of rights form. Also we do not consider issues raised for the first time on appeal.

POINT V. Appellant contends that the evidence found in the stolen automobile that he and his confederates abandoned in Memphis shortly before their...