Shamlin v. State, CA

• Decision Date: 06 January 1988
• Docket Number: CR-86-166,No. CA,CA
• Citation: 23 Ark.App. 39,743 S.W.2d 1
• Parties: Luther SHAMLIN, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Court of Appeals

Page 1

743 S.W.2d 1

23 Ark.App. 39

Luther SHAMLIN, Appellant, v. STATE of Arkansas, Appellee.

No. CA CR-86-166.

Court of Appeals of Arkansas Division II.

Jan. 6, 1988.

Rehearing Denied Feb. 10, 1988.

[23 Ark.App. 44] John Wesley Hall, Jr., Little Rock, for appellant.

Steve Clark, Atty. Gen., Little Rock, for appellee.

JENNINGS, Judge.

A jury found appellant, Luther Shamlin, guilty of arson and conspiracy to commit theft by deception. The State charged that Shamlin conspired with Judge John Purtle and Linda Nooner to burn Purtle's 1980 Ford Thunderbird and Nooner's home in Little Rock in order to collect the insurance proceeds. The State also charged that Shamlin committed arson by burning Nooner's home at Malcolm Cove in Little Rock on May 5, 1985. Appellant's case was severed and he was tried separately. The trial court sentenced him to 15 years for arson and 10 years for conspiracy, and ran the sentences consecutively.

On appeal Shamlin raises 12 points for reversal. Jurisdiction is in this court under Arkansas Supreme Court Rule 29(1). We affirm.

There was evidence presented at trial that Luther Shamlin and Judge Purtle had been close friends for many years. Ms. Nooner was both Judge Purtle's secretary and his personal friend. She had also known Shamlin for a number of years. There was evidence that Nooner was in financial difficulty early in 1985, and was unable to make her monthly house payments.

The State's primary witness was Homer Alexander. Alexander said that he had been with Shamlin a day or two before the fire when they bought seven quarts of lighter fluid at a Handy Dan store. Alexander testified that on the night before the fire at Malcolm Cove, he helped Shamlin move furniture out of Nooner's house to Shamlin's house in Shannon Hills. He said that he helped Shamlin move "junk" furniture from a storage building behind Shamlin's house into Nooner's house on Malcolm Cove. He testified that Shamlin told him he was planning on burning Nooner's house, but that he did not believe him. Alexander also testified that on the day after the fire Shamlin called him and said he had burned the house. Later that day appellant told Alexander that he had agreed with Nooner and Purtle to burn the house in exchange for $2,500.00 and the furniture.

At trial appellant argued that Homer Alexander's testimony was not credible, and the argument is repeated here. Appellant points out that Alexander is married to his ex-wife, Maxine, with whom Shamlin was engaged in an ongoing custody dispute. Appellant also points out various discrepancies between Alexander's testimony and the testimony of other witnesses. While these matters surely bear on Alexander's credibility, the credibility of witnesses and the resolution of conflicts in the evidence are matters for the jury to determine. Wilson v. State, 277 Ark. 43, 639 S.W.2d 45 (1982); AMCI 104.

Specific items of furniture reported by Nooner as lost in the fire were later found safe in Shamlin's house. The appellant's son, Bradley, testified that Ms. Nooner told his father to move the furniture out at night. Some of the furniture partly destroyed by the fire at Malcolm Cove belonged to a Mrs. Mullinax, who had had it stored in a small building behind Shamlin's house in Shannon Hills.

There was evidence that, when some of the furniture was moved, Shamlin received an envelope containing money from Linda Nooner. A bank employee testified about a $1,000.00 check on Ms. Nooner's account, payable to Shamlin. Tape recordings, made by Shamlin, were introduced which contained conversations between Shamlin and Purtle, and Shamlin and Nooner, about the Malcolm Cove fire and its subsequent investigation. Gary Jones, an inspector with the Little Rock Fire Department, testified that, in his opinion, the house at Malcolm Cove had been purposely set on fire with an accelerant. Another fire inspector, Lane Kinder, testified that an inflammable liquid was found in a can in the house at Malcolm Cove. Tommy Evans, a volunteer fireman, testified for the defense that he examined both Judge Purtle's car and Ms. Nooner's home and that both fires were caused by electrical problems.

The State presented evidence that Judge Purtle's 1980 Ford Thunderbird burned on April 26, nine days before the house at Malcolm Cove burned. The named insured was Freida Holiday, who lived with Ms. Nooner. Judge Purtle reported to the insurance company that Mr. Shamlin was driving the car on the night it burned to investigate some type of electrical problem in the dash. Police officers found the car abandoned and burned on the side of the road. Richard Walls, a fire investigator, testified that the vehicle was purposely set on fire.

SEARCH AND SEIZURE ARGUMENTS

Based primarily on the sworn recorded testimony of Homer Alexander, a search warrant was issued authorizing the search of Shamlin's home for tape recordings of telephone conversations between the alleged co-conspirators and for specific items of furniture reported lost in the fire at Nooner's house. Tapes and some items of furniture were found. At a hearing on appellant's motion to suppress this evidence, Monty Vickers, a Little Rock police officer, testified that he had been involved in the search. He said that the officers had been in the house for about five minutes when the appellant drove up. Appellant was advised of his rights and given a copy of the search warrant. Vickers testified that he told Shamlin that they were going to search his house thoroughly for tapes. The appellant said he had some tapes in the living room but that he also had some tapes out in his truck that he wanted the officers to hear. According to Vickers, appellant said, "I'll go get them for you." Vickers asked the appellant to wait and wrote out a consent to search form. He testified that although appellant refused to sign the form, he insisted on going out to his truck and getting the tapes, which he handed to Vickers. The testimony of Lewis Jackson, another police officer, was essentially the same.

Alexander testified that Shamlin had told him that he had gotten a tape of him (Shamlin), Linda Nooner, and Judge Purtle talking about the fire. Alexander said Shamlin told him that he sent the tape to Judge Purtle. Alexander testified that "he did not tell me that he kept a copy. I just assumed he would keep a copy."

The trial court held that Alexander's assumption that Shamlin would keep a copy of the tape was not enough to justify the search of Shamlin's house for tapes, but that the search warrant was valid as to the furniture. The tapes found in Shamlin's house were suppressed. The court also held that Shamlin freely and voluntarily consented to a search of his truck.

Appellant argues that the tapes which he retrieved from his truck and gave to the police must be suppressed as "fruit of the poisonous tree" and that his consent was invalid under Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). In Bumper the defendant lived with his grandmother, a 66-year-old widow, in an isolated rural area. The officers arrived at the door and announced that they had a search warrant. The grandmother responded "go ahead." Incriminating evidence was found, but the search warrant was later held to be invalid. The United States Supreme Court held that the search could not be justified on the basis of consent. The Court said:

When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority. A search conducted in reliance upon a warrant cannot later be justified on the basis of consent if it turns out that the warrant was invalid. The result can be no different when it turns out that the State does not even attempt to rely upon the validity of the warrant, or fails to show that there was, in fact, any warrant at all.

When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion--albeit colorably lawful coercion. Where there is coercion there cannot be consent.

391 U.S. at 548-50, 88 S.Ct. at 1791-92.

In Byars v. State, 259 Ark. 158, 533 S.W.2d 175 (1976), the Arkansas Supreme Court distinguished Bumper. The court said:

We think the key statement is, "This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority," i.e., we do not take Bumper to mean that an accused can never be deemed to have consented to a search, if a search warrant had been obtained and the accused was aware of that fact. Rather, we consider that this question is determined by the particular facts present when the consent is purportedly given.

259 Ark. at 167, 533 S.W.2d at 180.

There are a number of differences between Bumper and the case at bar. Here, the court found that the warrant was valid, in part, and therefore the initial intrusion into Shamlin's home was lawful. According to testimony at the suppression hearing, appellant was told that the officers had no warrant to search his truck. The testimony also indicates that appellant's subsequent insistence that the officers take the tapes and listen to them was more than mere passive acquiescence.

The burden rests upon the state to prove that consent is freely and voluntarily given. Rodriquez v. State, 262 Ark. 659, 559 S.W.2d 925 (1978). On appeal we make an independent determination considering the totality of the circumstances. Smith v. State, 265 Ark. 104, 576 S.W.2d 957 (1979). Our standard of review is whether the trial court's decision was clearly erroneous. Pollard v. State, 264 Ark. 753, 574 S.W.2d 656 (1978). In this case we cannot say that it was.

Nor do we think the trial court was required to exclude the tapes obtained under...