Wofford v. State, CR

• Decision Date: 02 October 1997
• Docket Number: No. CR,CR
• Citation: 330 Ark. 8,952 S.W.2d 646
• Parties: Stephanie Kay WOFFORD, Appellant, v. STATE of Arkansas, Appellee. 97-38.
• Court: Arkansas Supreme Court

Page 646

952 S.W.2d 646

330 Ark. 8

Stephanie Kay WOFFORD, Appellant, v. STATE of Arkansas, Appellee.

No. CR 97-38.

Supreme Court of Arkansas.

Oct. 2, 1997.

J. Randolph Shock, Fort Smith, for Appellant.

Winston Bryant, Atty. Gen., Vada Berger, Asst. Atty. Gen., Little Rock, for Appellee.

NEWBERN, Justice.

Stephanie Kay Wofford pleaded nolo contendere to first-degree murder in connection with the death of her five-year-old son Mark. She was convicted pursuant to her plea and sentenced to life imprisonment. In accordance with Ark. R.Crim. P. 24.3(b), Ms. Wofford's plea was conditional; thus she reserved the right to appeal from the Trial Court's denial of her motion to suppress evidence. The evidence in question included statements that were either given while she was not in custody or were preceded by an adequate Miranda warning. We hold there was no requirement that the statements be suppressed.

Also in question, however, are items of evidence seized by police officers who entered Ms. Wofford's home without a warrant sometime after other officers had entered without a warrant but pursuant to circumstances the Trial Court deemed exigent. The question to be answered is whether the officers entering later could properly seize items that could have been seized by the first entering officers because they were inadvertently seen by them in "plain view" while they were there for emergency purposes. As there was no testimony on the point at the suppression hearing, we cannot determine whether the items seized were in plain view of the officers who first entered. We, therefore, must remand the case for the limited purpose of determining the answer to that question. If it is properly determined by the Trial Court that the items seized were seen in plain view by the officers who initially entered Ms. Wofford's home, the conviction will be affirmed.

Before considering Ms. Wofford's suppression arguments, we note that she has raised two points of appeal not permitted by Rule 24.3(b) and the conditional plea arrangement. Those arguments concern the Trial Court's upward departure from the sentencing guideline contained in Ark.Code Ann. §§ 16-90-803 and 16-90-804 (Supp.1995) and an alleged violation of Ark. Sup.Ct. Admin. Order # 6 having to do with cameras in the courtroom. As a general rule, one is not allowed to appeal from a conviction resulting from a plea of guilty or nolo contendere. Ark. R.App. P.--Crim. 1(a). See Payne v. State, 327 Ark. 25, 937 S.W.2d 160 (1997). Rule 24.3(b) presents an exception to the rule but only for the purpose of determining on appeal whether an appellant should be allowed to withdraw her plea if it is concluded that evidence should have been, but was not, suppressed. We, therefore, decline to consider the two points that do not concern suppression of evidence.

1. The search

From the home where she and her son lived, Ms. Wofford telephoned her parents' home which was apparently nearby in Ft Smith. Ms. Wofford's sister, Amanda Hutchins, learned of the call and believed "something was wrong." Ms. Hutchins went to Ms. Wofford's home where she found Ms. Wofford sitting on a couch with blood on her wrists and clothing. Ms. Wofford's father and brother, along with family friend Henry McMurtery, then arrived. Ms. Hutchins called 911 and reported that Ms. Wofford had tried to kill herself, that there was blood "all over," and that Ms. Wofford had said her son would not wake up.

Ft. Smith police officers William Ohm and David C. Boyd, Jr., were on patrol on Ms. Wofford's block. They heard a dispatch and arrived at Ms. Wofford's house almost immediately. They understood that a child was "down and bleeding," and they thought it might have been as the result of a traffic accident. Ms. Wofford's father, sister, and brother were in the yard along with Mr. McMurtery who waived to the police officers to follow him into the house, saying "They're in here." Mr. McMurtery had not only seen Ms. Wofford as previously described but had been to the rear of the house and had found Mark on a bed in Ms. Wofford's bedroom with his wrists cut and his eyes open and dilated.

The officers entered the house without a warrant shortly after 3 p.m. and spent ten or fifteen seconds checking Ms. Wofford's vital signs. Officer Boyd, Jr., remained with Ms. Wofford while Officer Ohm followed Mr. McMurtery to the bedroom to examine Mark. By 3:29 p.m., Officer Ohm had determined that Mark was deceased. He returned to the living room and told Officer Boyd, Jr., to secure the area. In the meantime, Officer Boyd, Jr., had attempted to learn what had happened from Ms. Wofford. She appeared to be dazed and said only, "I can't die. I cannot die," and she asked "Why won't he wake up?" When asked about her cut wrists she replied that she had cut them with a knife that was in "the back room."

At around 3:40 p.m., Officer Ohm called for a supervising officer, an additional police unit, and an emergency medical services ("EMS") unit for Ms. Wofford. The EMS unit arrived around 3:50 p.m. As Officers Ohm and Boyd, Jr., were securing the perimeter of the home, they noticed a door leading from the outside into Ms. Wofford's bedroom. The door appeared to have been kicked in or struck with a sharp object. There were drops of blood and shattered glass. After securing the area, Officer Boyd, Jr., began keeping a detailed log of entries and exits.

At 4:00 p.m. Ms. Wofford left for a hospital emergency room in an ambulance. Officer Chris Boyd, Sr., had arrived at the scene at 4:05 p.m. At 4:41 p.m. Officer Boyd, Sr., left for the hospital where he was later to question Ms. Wofford. On her way to the hospital Ms. Wofford told an emergency medical technician, "He wouldn't breathe, so, I cut his wrists to match mine."

At 4:05 and 4:15 p.m., respectively, Officer Risley and Sergeant Lonetree arrived. Officer Risley entered the home at 4:05 p.m. with other officers but withdrew because of a strong odor of gas or petroleum. Sergeant Lonetree had brought a video camera and equipment to be used to gather evidence. He was, however, initially unable to enter the house on account of safety concerns relating to the gas or oil fumes. After the crime scene had been secured, firemen arrived at 4:32 p.m. and left at 5:20 p.m. Personnel from the gas company arrived at 5:07 p.m., turned off the gas, and left at 5:35 p.m. The coroner left with Mark Wofford's body at 5:38 p.m.

After receiving assurance that it was safe to enter the premises, Sergeant Lonetree and Officer Risley did so without a warrant. As they walked through the rooms of the house, they took photographs and made a videotape. At 6:10 p.m., they seized the first piece of evidence. By 8:55 p.m., they had seized 29 additional items. Sergeant Lonetree testified that the items seized were in plain view.

In denying Ms. Wofford's motion to suppress the evidence seized from her home, the Trial Court found that the officers' initial, warrantless entry was justified by "exigent circumstances." The Trial Court also found the officers had obtained "some form of consent" to enter the home. The Trial Court further indicated that the seizure of evidence was permissible as it was in plain view. Ms. Wofford contends that none of the established exceptions to the Fourth Amendment's warrant requirement justified the entry into, and search of, her home.

a. Officers Ohm and Boyd, Jr.

Ms. Wofford correctly states in her brief that, as Officers Ohm and Boyd, Jr., entered her residence without a warrant, their entry must be viewed as illegal unless the State established the availability of an exception to the warrant requirement. Williams v. State, 327 Ark. 213, 939 S.W.2d 264 (1997); Willett v. State, 298 Ark. 588, 769 S.W.2d 744 (1989). Ms. Wofford maintains the State failed to satisfy its burden and that the Trial court erred by finding that the officers had consent to enter her home and that their entry was justified by exigent circumstances. In her view, therefore, the evidence obtained by the police as a result of the officers' initial entry into her home should be suppressed as the fruits of an entry made in violation of the Fourth Amendment. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

When we review a ruling on a motion to suppress, we make an independent determination based on the totality of the circumstances, viewing the evidence in the light most favorable to the State. We reverse only if the ruling is clearly against the preponderance of the evidence. Norman v. State, 326 Ark. 210, 931 S.W.2d 96 (1996).

Applying this standard, we affirm the Trial Court's ruling that the officers' initial entry was justified by exigent circumstances. Given the testimony adduced at the suppression hearing, that ruling was correct under Ark. R.Crim. P. 14.3, which establishes the "emergency exception" to the warrant requirement and provides in part as follows:

An officer who has reasonable cause to believe that premises or a vehicle contain:

(a) individuals in imminent danger of death or serious bodily harm ...

* * * * * *

may, without a search warrant, enter and search such premises and vehicles, and the persons therein, to the extent reasonably necessary for the prevention of such death, bodily harm, or destruction.

The United States Supreme Court has repeatedly recognized the emergency exception in its Fourth Amendment jurisprudence. See, e.g., Thompson v. Louisiana, 469 U.S. 17, 105 S.Ct. 409, 83 L.Ed.2d 246 (1984); Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). In the Mincey case, the Court said that it does

not question the right of the police to respond to emergency situations. Numerous state and federal cases have recognized that the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid. Similarly, when the police come upon...