Willett v. State, CR

• Decision Date: 04 December 1995
• Docket Number: No. CR,CR
• Citation: 911 S.W.2d 937,322 Ark. 613
• Parties: Alan WILLETT, Appellant, v. STATE of Arkansas, Appellee. 94-322.
• Court: Arkansas Supreme Court

Page 937

911 S.W.2d 937

322 Ark. 613

Alan WILLETT, Appellant, v. STATE of Arkansas, Appellee.

No. CR 94-322.

Supreme Court of Arkansas.

Dec. 4, 1995.

[322 Ark. 616] William M. Pearson, Clarksville, for Appellant.

Clint Miller, Asst. Attorney General, Little Rock, for Appellee.

CORBIN, Justice.

Appellant, Alan Willett, appeals the judgment of the Johnson County Circuit Court convicting him of two counts of capital murder and two counts of attempted capital murder. Appellant was tried by a jury and received two sentences of death by lethal Appellant does not challenge the sufficiency of the evidence, so there is no need to recite the evidence in detail. All charges against appellant were the result of a single incident occurring at approximately 5:00 a.m. on September 14, 1993, when, apparently in anticipation of the possibility that his three minor children and mentally handicapped adult brother would be removed from his custody by the Department of Human Services, appellant attempted to kill them and himself in their home. Appellant beat the heads of his children and brother with an eight-pound iron window weight, and cut his own wrists and neck with a sharp object. Appellant succeeded in killing his thirteen-year-old son, Eric, and his brother, Roger Willett. Appellant's then seventeen-year-old daughter, Ruby, and then six-year-old son, Johnny, survived their injuries when Ruby escaped appellant's attention, grabbed Johnny, and went to a neighbor, who was an auxiliary deputy, for help. The neighbor, Donald Bradley, and a Johnson County Sheriff's Deputy, Robert Thompson, found appellant at the crime scene. Appellant was hospitalized thereafter, where he confessed to the murders and attempted murders.

injection and two sentences of thirty years in prison, all of which were to run consecutively. Jurisdiction is properly in this court pursuant to Ark.Sup.Ct.R. 1-2(a)(2). Appellant asserts nine points for reversal. We affirm the judgments of conviction for capital murder, but hold there was reversible error in the penalty phase of the bifurcated trial and remand to the trial court for resentencing pursuant to Ark.Code Ann. § 5-4-616 (Repl.1993).

Of his nine points for reversal, four are based on alleged errors that occurred during the guilt phase of the trial, two are based on alleged errors in the penalty phase, and three are constitutional challenges to our death penalty statutes. We address the four points pertaining to the guilt phase first.

Appellant's first assignment of error in the guilt phase is the admission of his confession. Appellant contends his uncounseled video-taped confession should not have been admitted into evidence because he gave it after he had invoked his right to counsel. The trial court held a hearing on appellant's motion to suppress the confession and later denied the motion, ruling that appellant had been advised of his rights and the confession was voluntary. At trial, the state introduced appellant's confession into evidence during the testimony of Dan Short of the Arkansas State Police Criminal Investigation Division.

This court has previously stated that, after invoking the right to remain silent or the right to counsel, an accused in custody may change his mind, initiate further communication with law enforcement officials and waive those rights. Bussard v. State, 295 Ark. 72, 747 S.W.2d 71 (1988) (citing Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) and Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986)); Coble v. State, 274 Ark. 134, 624 S.W.2d 421, cert. denied, 456 U.S. 1008, 102 S.Ct. 2301, 73 L.Ed.2d 1304 (1981). The admissibility of statements obtained after a person in custody has requested an attorney or decided to remain silent depends upon whether the accused knowingly and intelligently waived the right or rights he had invoked, whether his right to cut off questioning was scrupulously honored, and whether it is the accused who initiates the further communications with law enforcement officials. Id. On appeal, we determine whether such initiation and waiver has occurred from the totality of the circumstances, viewing the evidence in the light most favorable to the state. Rockett v. State, 318 Ark. 831, 890 S.W.2d 235 (1994). We will not reverse the trial court's determination unless it is clearly erroneous. Id.

There is no doubt appellant invoked his right to counsel while in police custody at approximately 10:00 a.m. on September 15, 1993 when Johnson County Sheriff Charles Nicklas and Investigator Short visited appellant in the hospital. Both law enforcement officials testified at the suppression hearing that they advised appellant of his Miranda rights, and that when they presented appellant with a waiver of rights form for his signature, appellant wrote on the signature line, "I want a lawer [sic] first." Both officials testified they did not ask any further questions of appellant.

Appellant does not dispute that, on the following day, September 16, he gave the prosecuting attorney's business card to a nurse and asked her to call the prosecuting attorney. The nurse, Sue McCarley, testified at the hearing that she could not reach the prosecutor and upon informing appellant of such, he asked to speak with a deputy. Nurse McCarley stated appellant knew what he was doing when he asked her to contact the authorities.

Sheriff Nicklas and Investigator Short both testified that they, together with the prosecutor, returned to appellant's hospital room on September 16. At that time, appellant signed a written waiver of his rights to remain silent and to counsel. He also signed a written statement acknowledging that he asked the hospital to contact the law enforcement officials, that he initiated the contact with the officials, that he desired to give a statement to them, and that his decision to do so was voluntary. Investigator Short then video-taped appellant's confession, wherein appellant admitted striking all four victims in their heads with the window weight and intended to kill them and himself.

John Anderson, a licensed psychologist from the Division of Mental Health Services, testified at the suppression hearing that he had examined appellant and watched the video-taped confession. He opined that appellant was of average intelligence and that he saw nothing to indicate appellant acted in any way other than voluntarily when he confessed.

Viewing the foregoing evidence in the light most favorable to the state, it is clear that appellant initiated the contact with law enforcement officials by asking the nurse to call them. It is equally clear that he subsequently and voluntarily waived his rights and gave a confession. He signed the waiver form and, as the trial court observed, his actions and answers to questions indicated that he was acting voluntarily. Considering the totality of the circumstances, we cannot say the trial court's ruling admitting the confession into evidence is clearly erroneous.

On appeal, appellant also cites Metcalf v. State, 284 Ark. 223, 681 S.W.2d 344 (1984), and contends the impetus of his contact with police on September 16 was the prosecutor's action in leaving his business card with appellant. This argument, together with the argument that appellant was denied his right to counsel during an appearance that was conducted by the municipal judge in appellant's hospital room on the evening of September 15, were not raised below. We do not address arguments raised for the first time on appeal. Greene v. State, 317 Ark. 350, 878 S.W.2d 384 (1994). Even constitutional arguments are waived on appeal when not raised below. Kittler v. State, 304 Ark. 344, 802 S.W.2d 925 (1991).

Appellant's second and third assignments of error in the guilt phase are the admission into evidence of four photographs taken at the crime scene and during the two autopsies. He argues the photographs were cumulative of other photographs and highly prejudicial.

Even if photographs are inflammatory or prejudicial in the sense that they show human gore repulsive to the jurors, they are nevertheless admissible within the trial court's discretion if they help the jury understand the accompanying testimony. Harvey v. State, 292 Ark. 267, 729 S.W.2d 406 (1987). If a photograph serves no valid purpose and only inflames the jury, it is inadmissible. Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979), cert. denied, 449 U.S. 852, 101 S.Ct. 144, 66 L.Ed.2d 64 (1980). However, the mere fact that a photograph is inflammatory or cumulative is not, standing alone, sufficient reason to exclude it. Weger v. State, 315 Ark. 555, 869 S.W.2d 688 (1994).

Specifically, appellant challenges the admission of State's Exhibits 4, 57, 60 and 63. State's Exhibit 4 is taken from the rear view and shows the body of Eric Willett lying in a large pool of blood on the floor of the Willett residence. Appellant objected on the basis that the photograph was cumulative of State's Exhibits 1 and 2. State's Exhibit 1 is a close-up photograph of Eric's body taken from the front view. State's Exhibit 2 is a photograph of the window weight lying on the floor in close proximity to Eric's head. State's Exhibit 4 was admitted as Deputy State's Exhibits 57 and 60 are autopsy photographs of Roger's head showing the top and rear views, respectively. The two challenged photographs showed that Roger was struck on the back and side of the head numerous times. Other autopsy photographs of Roger's head injuries were also admitted. However, there is no duplication. State's Exhibits 57 and 60 served to help the jury understand the nature and extent of the fatal wounds and the medical examiner's testimony that Roger suffered five blows to the head. Exhibit 60 also showed the secondary injuries, bruises on the back of the head, caused from the primary blows to the head. We cannot say the trial court abused its discretion in this regard.

Thompson...