Richardson v. State, CR

• Decision Date: 25 June 1984
• Docket Number: No. CR,CR
• Citation: 283 Ark. 82,671 S.W.2d 164
• Parties: Avery Nathan RICHARDSON, Appellant, v. STATE of Arkansas, Appellee. 84-13.
• Court: Arkansas Supreme Court

Page 164

671 S.W.2d 164

283 Ark. 82

Avery Nathan RICHARDSON, Appellant, v. STATE of Arkansas, Appellee.

No. CR 84-13.

Supreme Court of Arkansas.

June 25, 1984.

Carl J. Madsen, P.A., Stuttgart, for appellant.

Steve Clark, Atty. Gen. by Theodore Holder, Asst. Atty. Gen., Little Rock, for appellee.

HAYS, Justice.

Appellant was convicted of first degree murder and arson, resulting in consecutive sentences of forty years for murder and twenty years for arson. Two points for reversal are raised: The trial court erred in denying a motion to suppress custodial statements because the appellant was not promptly brought before a judicial officer and in denying a motion to suppress evidence because of an invalid arrest in violation of the Fourth and Fourteenth Amendments to the Constitution. We affirm.

On September 1, 1982 the burned body of Lester Richardson was found among the ashes of his home in Arkansas County. Later that day appellant, his father and step-mother, who lived nearby and who reported the fire, were taken to the sheriff's office for questioning. While there, appellant was charged with public intoxication, searched and placed in a jail cell. Ten days later he was charged with murder and arson, but not until October 25, 1982 was he brought before a judicial officer, at which time counsel was appointed.

Appellant gave three custodial statements between the time of his arrest and his appearance before a judicial officer. The first was given on the evening of September 1, and two later ones on October 5 and 6. Appellant submits that all three statements must be suppressed because of the inordinate delay in compliance with A.R.Cr.P. Rule 8.1, which provides:

An arrested person who is not released by citation or by other lawful manner shall be taken before a judicial officer without unnecessary delay. (Our italics).

We have held that compliance with this rule is mandatory, Bolden v. State, 262 Ark. 718, 561 S.W.2d 281 (1978), and in Cook v. State, 274 Ark. 244, 623 S.W.2d 820 (1981) we said that a delay of seventeen days in presenting an accused to a judicial officer constituted a violation of Rule 8.1, and that the remedy was not a dismissal of the charges, but the suppression of in-custodial statements. See Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975).

The State, appropriately, concedes that a delay of fifty-six days, which occurred in this case, cannot be defended, with which we emphatically agree. However, the state submits that the error is harmless because the three statements are all exculpatory, in that they merely give appellant's account of how Lester Richardson accidently discharged a 20 gauge shotgun as he was changing the sheets on a bed for the appellant, his nephew, to sleep in. Whether the nature of the statements requires reversal cannot be determined, as none of the three statements is abstracted and their admission may have been harmless. At least we are not willing to presume that the statements are prejudicial when their content is not divulged and we have no way of knowing whether they are incriminating. Rule 9(d) of the Rules of the Supreme Court provides that appellant's abstract should include "such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to this court for decision." While the rule uses the word "only", that cannot excuse the total omission of exhibits or other material, the substance of which is essential to a determination of whether appellant's argument has merit, and warrants a reversal of the judgment. Adams v. State, 276 Ark. 18, 631 S.W.2d 828 (1982); Byers v. State, 267 Ark. 1097, 594 S.W.2d 252 (App.1980); Vail v. State, 267 Ark. 1078, 593 S.W.2d 491 (App.1980); Ellis v. State, 267 Ark. 690, 590 S.W.2d 309 (App.1979).

The remaining argument is that other evidence should have been suppressed because it was obtained by a search based on an invalid arrest. Appellant submits that his arrest for public intoxication was a mere pretext to aid the state in its investigation of the felony charges which were later filed. We cannot sustain that contention. The proof established that appellant had been drinking the night before and showed the effects of alcohol when he was brought to the sheriff's office around midday on September 1. During the next hour or so he made frequent trips to the rest room as he became increasingly inebriated, until he was arrested, searched and an empty half pint whisky bottle found in his boot. The proof that his condition justified the charge is not seriously challenged. Appellant's argument is based on nothing more than the mere assumption that the motive for his arrest related to the murder and arson crimes and not to the fact that he was, by all accounts, publicly drunk. Appellant submits that the offense of public intoxication, as defined in Ark.Stat.Ann. § 41-2913, requires an element missing here, i.e. a likelihood that the accused poses a danger to himself or to the persons or property of others. But the appellant was a possible suspect for homicide and arson and the circumstances were entirely sufficient to place him under arrest for being drunk in public. It is not necessary that a dangerous propensity from excessive alcohol become manifest before the police are justified in arresting someone for being intoxicated in a public place.

We cannot overlook the extraordinary delay in bringing this appellant before a judicial officer as required by A.R.Cr.P. Rule 8.1. Abuses of this sort warrant the strongest censure. The sheriff, along with the prosecuting attorney, was and is primarily responsible for this breach of responsibility. Furthermore, the circuit judge as the head of the local judicial system, must set the tone of justice in his circuit. If he oversees the system properly, it should work well; if he neglects it, it will result in similar abuses. We note, parenthetically, that neither the Circuit Judge nor the Prosecuting Attorney, currently serving in Arkansas County, were holding office at the time appellant was held improperly.

The exclusionary rule was created by the United States Supreme Court to remedy flagrant violations of constitutional rights. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914); see also Cook v. State, 274 Ark. 244, 623 S.W.2d 820 (1981). Its purpose is to deter improper practices in our legal system. Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979). While many believe the exclusionary rule should be changed (and it is being relaxed), the reasons for its existence are arguably valid simply because no effective alternative has been found. Other writers have discussed the advantages and disadvantages of the rule. See Schroeder, Deterring Fourth Amendment Violations: Alternatives to the Exclusionary Rule, 69 vol. J. 1361, 1423 (1981); Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U.Chi.L.Rev. 665 (1970). Cf. Dellinger, Of Rights and Remedies: The Constitution as a Sword, 85 Harv.L.Rev. 1532 (1972).

However, the question remains, how do we prevent a sheriff from wrongdoing or require him to do his duty? Unfortunately, we can't as a practical matter, because prosecutors are reluctant to intervene. But we can express disapproval of such conduct, and we must, if a relaxation of the exclusionary rule is to be justified. Theoretically, there are remedies for victims of such abuses through civil litigation, and we should not discourage such recourse. But that is not enough, officials must be called publicly to account and given more than perfunctory admonishment; they must be censured and the people of the locality informed that their legal system has failed to work in the manner contemplated by our constitution. The responsibility in such cases must be placed on those officials who failed in their duty. It is unfair to the public, indeed it is wrong, to permit a defendant to escape prosecution for a crime because of such mistakes, unless his right to a fair trial is actually prejudiced. See Pace v. State, 265 Ark. 712, 724, 580 S.W.2d 689 (1979). At the same time, officers of the judicial system must answer to the public for their neglect.

The judgment on the sentences is affirmed.

PURTLE, DUDLEY and HOLLINGSWORTH, JJ., dissent.

PURTLE, Justice, dissenting.

The majority quotes Rule 8.1 of the Arkansas Rules of Criminal Procedure and then completely abolishes it. There is no longer any requirement that an arrested person be promptly taken before a judicial officer. The appellant was held 56 days before he was taken before a judicial officer. This court stated in Bolden v. State, 262 Ark. 718, 561 S.W.2d 281 (1978): "Rule 8.1 is designed and has as its purpose to afford an arrestee protection against unfounded invasion of liberty and privacy. Moreover, the person under arrest taken before a judicial officer without unnecessary delay will have the charge[s] explained, will be advised of his constitutional rights, and will have counsel appointed for him if an indigent, and arrangements for bail can be made expeditiously ... Indeed, these are basic and fundamental rights which our state and federal constitutions secure to every arrestee. Hence, we conclude that Rule 8.1 is mandatory in its scope." We reaffirmed the Bolden holding in the case of Cook v. State, 274 Ark. 244, 623 S.W.2d 820 (1981). In Cook we stated: "We adhere to our standard that this rule is mandatory, not discretionary, but that violation of it does not dictate a dismissal of the charges." Bolden v. State, supra, and Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). The period of detention in Cook was 31 days. I cannot understand why this court held in 1981 that 31 days was excessive and in 1984 can hold that 56 days is not excessive. The majority opinion overrules Bolden and Cook in addition to Rule 8.1 and the state and...