Upton v. State

• Decision Date: 23 December 1974
• Docket Number: No. CR,CR
• Citation: 257 Ark. 424,516 S.W.2d 904
• Parties: Harold S. UPTON, Appellant, v. STATE of Arkansas, Appellee. 74--97.
• Court: Arkansas Supreme Court

Page 904

516 S.W.2d 904

257 Ark. 424

Harold S. UPTON, Appellant, v. STATE of Arkansas, Appellee.

No. CR 74--97.

Supreme Court of Arkansas.

Dec. 23, 1974.

Mays & Landers, El Dorado, for appellant.

Jim Guy Tucker, Atty. Gen. by Jack T. Lassiter, Asst. Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Justice.

This appeal comes from a retrial of appellant Upton on a charge of first degree murder of Woodrow DeFee alleged to have been committed in the perpetration of a robbery, after our reversal of his conviction in Upton v. State, 254 Ark. 664, 497 S.W.2d 696. The points for reversal here are:

I. The Trial Court erred in refusing to grant defendant's motion to quash and dismiss relative to the appointment of a special prosecutor.

II. The Trial Court erred in refusing to grant defendant's motion to suppress evidence regarding a confession allegedly made by defendant.

III. The evidence was not sufficient to sustain a judgment of murder committed while in the act of or in the attempt to perpetrate robbery.

The second point was asserted on the previous appeal and we held adversely to the appellant. Unless the evidence is materially different from that previously before us, the law of the case governs. Mode v. State,234 Ark. 46, 350 S.W.2d 675. There is very little difference in the evidence on behalf of the state. We find there is no reversible error. We will treat these points separately.

I

Appellant, as one ground for a change of venue, sought a transfer of the case to a county in which James J. Calloway was not a deputy prosecuting attorney. He asserted that his right to a fair and impartial trial was jeopardized by reason of the fact that Calloway, who had previously been one of the attorneys appointed to represent him in the defense of this charge, had been appointed Deputy Prosecuting Attorney in and for Union county. The motion for change of venue was granted, without any indication that it was based only on this ground. Appellant had also filed a motion to quash and dismiss the information filed against him on the same ground. He asked, in the alternative, that the prosecuting attorney and his staff be disqualified and that the court appoint a special prosecutor and enjoin him from discussing the case with the prosecuting attorney or members of his staff and from using any evidence except such as might be on public record or was used in the first trial. The motion was denied upon the trial court's finding that Calloway had respected the confidential relationship with his former client. The court, however, stated that if at any time prior to trial it was shown Calloway had violated or appeared to have violated this confidentiality by revealing any information received from appellant, the court would consider a motion to recuse the prosecuting attorney and his staff or to permit appellant to renew his motion to quash. The court also enjoined Calloway from discussing the case with the prosecuting attorney, his staff, appellant or appellant's attorneys and from appearing at any subsequent hearings in the case or at the trial or participating in the cause, either as an advocate or spectator. The circuit judge warned that any appearance by Calloway in the courtroom at any time this case was under consideration would constitute a violation of the court's order and any violation would immediately result in the prosecuting attorney and his staff being recused and a special prosecutor appointed.

The record discloses that Calloway was appointed to assist in Upton's defense on April 4, 1972, and had conferred with Upton about the charges and his defenses on numerous occasions and had participated in the former trial and appeal. Calloway testified that his principal area of activity was in legal research and briefing and that Denver Thornton was leading counsel throughout the trial and appeal. His appointment as deputy prosecuting attorney was made on March 5, 1973, after he had completed his research in the Upton appeal but before he had dictated his brief. He stated that he had not subsequently had any contact with Upton, had never reviewed the state's file in the case against Upton, except when it was made available to him as defense counsel, had not related any confidential information received from Upton to any of the prosecuting attorney's staff, and had not done anything or become involved in any way in the case against Upton. He did say that after the reversal of Upton's first conviction he had received a note from Upton and had gone to the jail to talk to Upton, at which time he gave Upton to understand that the representation was terminated. Calloway stated that he had done everything within his power to stay away from the case.

Calloway related that his primary duties as deputy prosecuting attorney were to attend municipal court, but said that he had made some felony court appearances and had handled a great deal of office traffic and some special assignments. There is no evidence contrary to that of Calloway and no indication that Calloway violated the confidence of appellant or participated in the case on behalf of the state in any way, or that appellant was prejudiced by anything Calloway had said or done. There is not the slightest indication that Calloway violated the trial court's injunction in any way.

Appellant's whole argument is based upon the potential for prejudicial violation of the confidential relationship. In support of his argument appellant relies upon numerous authorities from sister states, none of which is in point. If Calloway had appeared in the case at any time on behalf of the state in any capacity or prepared, presented or argued charges against appellant or instructions to be given the jury, or had communicated with the prosecuting attorney or any member of his staff about the case or had been a partner of the defense counsel serving at the second trial, we would have an entirely different situation. It appears from this record that Calloway scrupulously avoided any possibility of violation of any confidence and that the circuit judge was just as scrupulous in taking steps to avoid even the possibility of impairment of appellant's right to a fair trial insofar as Calloway's previous representation of him was concerned. To say the least, there was no abuse of the trial court's discretion under these circumstances.

II

The alleged confession attacked by appellant is the same we held to be voluntary upon the record before us on the prior appeal. The trial court, after another Denno hearing before the second trial, also held the statement was voluntary and it was admissible both on that ground and on the law of the case. Appellant has not pointed out to us any significant difference in the testimony at the two Denno hearings. The impact of the law of the case is as great on questions of admissibility of evidence and voluntariness of statements by an accused as on any other question. See Fuller v. State, 246 Ark. 704, 439 S.W.2d 801; Mode v. State, 234 Ark. 46, 350 S.W.2d 675.

Appellant's argument on this point is based entirely upon the fact that there was a two-day interval between the warnings as to his constitutional rights and the statement made by him to the prosecuting attorney. He says that the statement should have been held inadmissible because of the failure of the prosecuting attorney and the officers accompanying him to Upton's jail cell on the occasion the statement was made to advise him of his constitutional rights. Even it this is an objection to admissibility not previously made, the law of the case, as the rule is applied by this court, probably would govern on the question of admissibility. See, St. Louis Southwestern Railway Co. v. Jackson, 246 Ark. 268, 438 S.W.2d 41; Turner v. State, 251 Ark. 499, 473 S.W.2d 904. Still, we find no merit in appellant's argument on this appeal.

The statement was made at an interview requested by appellant. The statement did not result from any interrogation. It was spontaneous. Upton started giving his version of the case as soon as the prosecuting attorney and the accompanying officers entered the cell. We have never attempted to set a fixed limit on the interval of time which must elapse between advice to an accused of his constitutional rights and an incriminating statement before a new warning is essential to admissibility of the statement. Probably we never will, because we must view the totality of the circumstances in our independent review of the record to determine whether such a statement is voluntarily made. See Degler v. State, 257 Ark. --- (1974), 517 S.W.2d 515. We have held that a three-month interval is too long. Scott v. State, 251 Ark. 918, 475 S.W.2d 699. On the other hand, we held that a three-hour delay between warning and confession was not so long as to require repetition of a warning where other evidence that the confession was voluntary preponderated. Summerville v. State, 253 Ark. 16, 484 S.W.2d 85. In a factual situation very analogous to this, we found the evidence that a statement was voluntary to be overwhelming in spite of the fact that at least three or four days intervened between the accused's being informed of his constitutional rights and his relating his version of a killing to officers he asked to come to the jail where he was incarcerated. O'Neal v. State, 253 Ark. 574, 487 S.W.2d 618. To say the very least, we cannot say that when we view the totality of the circumstances the trial judge's finding in this case was clearly against the preponderance of the evidence. See Degler v. State, supra.

III

On the prior appeal we found nomerit in any of appellant's arguments for reversal other than the one upon which we reversed his conviction. While he did not specifically argue in the appeal that the evidence was insufficient to sustain a verdict finding him guilty of committing a murder in the perpetration of a robbery, he did raise a point closely related to his present...