Scott v. State
| Decision Date | 12 June 1978 |
| Docket Number | No. CR78-15,CR78-15 |
| Citation | 263 Ark. 669,566 S.W.2d 737 |
| Parties | Adolphous SCOTT, Jr., Appellant, v. STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
Matthews & Sanders, by Roy Gene Sanders, Little Rock, for appellant.
Bill Clinton, Atty. Gen., by Jesse L. Kearney, Asst. Atty. Gen., Little Rock, for appellee.
Adolphous Scott, Jr. was convicted of capital murder in the Hot Spring County Circuit Court for the killing of Henry Puckett. After a jury trial, Scott was sentenced to life imprisonment without parole. He raises ten allegations of error on appeal. We find merit in many of these points and reverse and remand the case.
Scott, who resided in Benton at the time of the killing, had been charged in June, 1973, with the first degree assault of V. O. McGuire. He was charged with shooting the store owner in Benton during the course of an argument. After a short period of time in jail, he was released on bond.
On July 31, 1973, Henry Puckett was killed during a robbery of his pawn shop. Scott was considered as a suspect in the killing. The law enforcement authorities had received information about a green Volkswagen, similar to Scott's, having been in the vicinity at the time of the killing. Scott was brought in for questioning, taken to Little Rock for a lie detector test and a trace metal examination, returned to Benton and released. Apparently there was insufficient evidence to justify holding Scott for the Puckett killing.
In September, 1973, McGuire died. The assault charge against Scott was changed to first degree murder. Scott was immediately arrested and his bond was revoked.
There was considerable unrest in the area about the McGuire death. There were also racial tensions in the community since both victims were white and Scott is black. Scott stated many times that he feared for his safety while in jail. On one occasion before his trial for the McGuire killing an unknown person was seen with a gun outside the jail in which Scott was being held.
The day before the trial for the McGuire killing, Scott was taken to the prosecuting attorney's office for questioning about the Puckett killing. The sheriff testified that Scott had initiated this meeting. Scott denied this and further stated that he had refused to talk to the prosecutor until his attorney had been called. The prosecutor did call Scott's attorney. When the attorney refused to give his permission to an interview, Scott was returned to his cell.
This first trial ended with a second degree murder conviction and a twenty-one year prison sentence for Scott. There were several outbursts during the trial. At least two people were arrested for disturbing the peace after the verdict was announced. Scott's lawyer left town within ten or fifteen minutes after the verdict was handed down.
Scott was returned to jail. He indicated that he was afraid for his life and was eager to be taken to the penitentiary as soon as possible. He testified that he expressed these fears to the sheriff, but was told that he was not going to the penitentiary until he confessed to the Puckett killing.
The day after Scott's first trial he wrote out a statement in longhand outlining the details of the Puckett killing. The essence of the statement was that Scott drove his car to the pawn shop under some duress, that someone else shot Puckett, and that Scott had no idea that Puckett was going to be killed. The statement also contained this curious phrase:
I have been read my rights and I understand that anything that I write in this statement can and will be held against me. I also understand that this statement and testimonial is not valid without the presence of my attorney or the consent of his word. (Emphasis added.)
The statement was not witnessed by any of the police officers present while Scott was writing it.
The sheriff and the other officers present at the jail as Scott was writing out this statement indicated that it was a totally voluntary act on Scott's part. In fact, the sheriff testified that he had no interest in Scott making a statement clearing up the Puckett killing. The statement was not delivered to the sheriff until after Scott arrived at the penitentiary later that same day October 17, 1973.
There was little evidence gathered after October 17, 1973, implicating Scott in the Puckett killing. The prosecuting attorney did allude to some investigation the summer before trial when depositions were taken in Michigan from Scott's alleged accomplice. In any event, no charges were filed against Scott until July 1, 1976 almost three years later. Scott's attorney filed a motion to dismiss the charges because of delay. During argument on this motion the state failed to offer any real reason for the delay.
Scott claims that the delay prevented him from using two alibi witnesses, and therefore that he suffered irreparable prejudice. One of those witnesses was Scott's former wife. Scott argued that if his wife had been present at trial she would have testified about his alibi. He stated that he had not seen his wife since about a year after his imprisonment and that he did not know her whereabouts. He said that she had divorced him. Scott proffered evidence that a friend of his, with whom he claimed he was playing basketball at the time of the Puckett killing, had died a year and a half after the killing. The state stipulated that if the two witnesses were present they would testify as Scott's attorney represented.
Apparently the court and the prosecutor assumed that because there is no statute of limitations for murder, charges can be filed at any time. See Ark.Stat.Ann. § 41-104(1) (Repl. 1977). The state did not really respond to the motion to dismiss. If it cannot be shown that the state had good cause for its delay in filing the charges against Scott, then the charges should be dismissed. We cannot say from the record that the state does not have evidence that the matter was being investigated during this three-year gap. A new sheriff and prosecuting attorney were in office at the time these charges against Scott were filed. We cannot tell from the record if the former sheriff and prosecutor pursued this matter after receiving Scott's confession. Therefore, the state will be given an opportunity to explain the delay.
Just because the statute of limitations does not run on a murder charge does not mean that a person can be brought to trial at any time. The prosecution cannot delay simply for the purpose of gaining a tactical advantage over the accused. The United States Supreme Court has noted that there may be circumstances where prejudice occurs from prosecutorial delay which require the dismissal of charges. United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977). Since Scott was able to show prejudice to his defense, unless the state can come forward with a satisfactory reason for the delay, the charges should be dismissed.
Scott also argues that the case should have been dismissed because of failure to bring him before a judicial officer without unnecessary delay. We have mentioned that charges were not filed against Scott until almost three years after the offense occurred. The prison authorities received the service of process and attached it to Scott's file. However, there is no evidence that Scott was personally served with a copy of the warrant. He was not arraigned until April 19, 1977. Counsel had been appointed for him on December 1, 1976; however, from the time the charges were filed until the trial, three different lawyers had been appointed to represent Scott.
In view of the fact that Scott was in the penitentiary at the time the charges were filed, and that one continuance was at the request of defense counsel, we cannot say that the charges should be dismissed because of failure to bring him before a judicial officer as required by Rule 8.1, Rules of Criminal Procedure (Repl. 1977). However, the fact that Scott was not promptly brought before a judicial officer and arraigned lends weight to Scott's motion to dismiss the charges because of delay, and necessarily enters into our judgment requiring the state to offer a satisfactory explanation.
We hold that Scott's statement was clearly not intended to be used against him in court. He stated that he understood the statement was invalid unless his attorney consented to its being given to the law enforcement authorities. No such consent was shown. Since Scott made this statement while in custody, the state has the burden of proving that it was voluntarily made. Harris v. State, 244 Ark. 314, 425 S.W.2d 293 (1968).
The evidence offered by the state consisted of statements by the law enforcement officers that Scott simply wanted to get this matter off his conscience and asked for paper to write out a statement. It is peculiar that no officer witnessed the statement. It is also peculiar that the statement was not delivered to the sheriff until Scott was taken to the penitentiary. This is...
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