Lascano v. State

Steele Hays, Justice. Appellant was convicted of first degree murder and sentenced to 35 years in the Department of Correction. For reversal, she argues that the trial court erred in denying a motion to suppress tangible evidence, in admitting a confession and in refusing to declare a mistrial. We find no error and affirm the judgment. On October 25, 1980, a Saturday, the body of Mrs. Jeannie Hunt was found in the kitchen of her Fayetteville home. She had been shot four times and death was thought to have occurred at about 8:30 or 9 the previous evening. Appellant, an acquaintance of Ben and Jeannie Hunt, was contacted by two deputies on Sunday evening and asked to come to the sheriff’s office for questioning. Sergeant Doug Fogley of the State Police began the interview by asking her name, address, phone number and when she had last seen Jeannie Hunt. Appellant said, “About 8:30 p.m. on Friday.” He immediately explained her rights to her and obtained her signature on a waiver form. During the questioning appellant gave a non-incriminating account of her movements on Friday. Appellant was asked if she owned a handgun and said she did, which she kept in the glove compartment of her car. She agreed to a search of the vehicle and, when the pistol was not found, to a search of her apartment, which produced a partial box of Remington .22 caliber long-rifle cartridges containing 44 bullets, six less than the normal 50. The Remington cartridges had a yellow jacket, matching one recovered at the scene. Appellant was told of these findings and that there was probable cause to charge her with murder. She remained in custody and at about 5 p.m. on Sunday she dictated and signed a confession. She gave an account of a turbulent love affair with Ben Hunt, the victim’s husband, characterized by hostility and threats between the two women. In early October appellant purchased a pistol for protection, having some reason to think that Mrs. Hunt had a weapon. She said on Friday she saw Jeannie Hunt at a shopping center and decided to visit her; she wanted to find out where she stood with Ben and whether Ben and Jeannie planned to stay together. She took the pistol with her and arrived at about 8:30. They talked in the kitchen until Mrs. Hunt became angry. Shouting accusations she told appellant to get out of her house and pulled her toward the door. Appellant drew the pistol and fired four times at point blank range. She wiped her fingerprints from a drinking glass, drove home and changed clothes for work. After throwing the pistol from a bridge, she picked up her daughter and friends from a skating party and went to work. The pistol was later recovered by the police. Appellant argues her Fourth and Fifth Amendment rights were violated by the trial court in admitting her confession and in refusing to grant her motion to suppress the physical evidence. She claims no attempt was made by the deputies to comply with Rule 2.3, A. R. Crim. P., by informing her she was under no legal duty to accompany them to the sheriff’s office. Further, before she was given the required Miranda warning she said she had seen Jeannie Hunt about 8:30 on Friday night. Appellant insists this admission that she had seen the victim near the time of death was fatal — that it opened the door to the whole case and everything obtained from her thereafter was tainted. But the argument is not persuasive. No evidence at the scene implicated the appellant and there is no indication Sergeant Fogley regarded her as a specific suspect. Appellant had not been singled out as a suspect; all individuals acquainted with the victim were being contacted and under such circumstances it is not impermissible to ask some preliminary information questions without overstepping constitutional protectons. Here the interview had hardly begun and the questions asked were general. It seems entirely routine to ask when someone last saw the victim. Significantly, Sergeant Fogley immediately interrupted the questioning to give the Miranda warnings and there is nothing to suggest appellant was caught unawares by that single question. Her earlier steps to conceal the weapon and to wipe her fingerprints from the glass in the Hunt kitchen indicate she took deliberate precautions. Evidently she supplied a satisfactory explanation of her whereabouts on Friday and gave non-incriminating answers during the remainder of the interview. She had, in fact, seen Jeannie Hunt at a shopping center on Friday, but whether she was referring to that encounter is not revealed to us. However that may be, no other incriminating information appears to have been obtained from her. In short, in the absence of some indication of bad faith tactics by the officer or some particular vulnerability of the individual, we are not willing to say on the basis of that marginal question that everything the appellant later disclosed must be excluded. The constitutional protections against self-incrimination do not extend that far. Procedures for custodial interrogation are prescribed by two well known decisions: Escobedo v. Illinois, 378 U.S. 478, decided in 1964 and Miranda v. Arizona, 384 U.S. 436, coming two years later. Neither case purports to dictate the suppression of every statement or utterance given in the absence of the requested warnings, but rather of statements of those arrested or on whom suspicion has focused. Appellant suggests Miranda abolishes the distinction between the investigatory and accusative phases of crime detection. We disagree. The circumstances of this case and those present in Escobedo and Miranda invite comparison. Escobedo, with no warnings whatever, was confronted in custody with an alleged accomplice who accused him of murder. Escobedo said, “I didn’t shoot Manuel, you did it.” Handcuffed, Escobedo was questioned while standing up for four hours. Additionally, he was refused access to his retained counsel, who spent several hours at the detective bureau trying to confer with him. Somewhat similarly, Miranda was taken to police headquarters and identified by a rape victim; he was then questioned by two detectives for two hours without being told he had a right to counsel, nor was his right not to be compelled to incriminate himself effectively preserved. By contrast, the testimony of witnesses, including appellant, show she was treated with deference. Sergeant Fogley said he repeatedly urged her to obtain counsel to no avail. Appellant, 33 years of age, is described as an articulate university student with a degree in education and completing requirements for a degree in marketing; the Miranda warnings were given her in writing no less than three times prior to her confession. Appellant urges the point that Sheriff Marshall regarded her as a suspect. But that need not tarnish these proceedings. In many homicides an aura of suspicion initially touches spouses, lovers, rivals, even acquaintances, until attention can focus more clearly on one or more individuals. There is no evidence that appellant was more suspect than others in the beginning, as the sheriff’s testimony reveals: A: I considered her as a suspect in a homicide case. We consider everyone a suspect until we sort them out. Q: So she was invited down to the police station at your request and you considered her a suspect at that time? A: She was no different in the case than numerous other people we had asked to come to the station to talk to us. Q: They were all considered to be suspects? A: That’s correct, (p. 165.) We cannot say the trial court’s rulings on appellant’s motions were against the preponderance of the evidence. Appellant submits that no effort was made to comply with Rule 2.3, A. R. Crim. P., which requires that if a law enforcement officer asks a person to come to the police station he shall make it clear there is no obligation to comply. Whether the deputies observed the rule is not clear, as the question was never asked. It is clear that no objection was made to the trial court and, hence, it is not available to appellant on appeal. Meyers v. State, 271 Ark. 886, 611 S.W. 2d 514 (1981). Appellant also urges that a mistrial should have been declared because appellant’s counsel moved to withdraw during the course of trial. In chambers, with appellant present, defense counsel informed the court he felt a fraud was being perpetrated in that appellant revealed to him the principal purpose of her defense was to protect Ben Hunt and prove him innocent. Counsel represented to the court that he could not ethically defend appellant in light of that disclosure. The trial judge asked appellant if she and counsel had discussed the issue at length and she assured him she was fully satisfied with the representation she was receiving. In the end, and after a conference between appellant and counsel, the motion for a mistrial seems to have been withdrawn with Mr. Werner’s comment, “Your Honor, we have reconsidered. We are going to call Dr. Finch to testify and also the defendant, if she wants to testify,” and with that the trial continued. (See p. 715.) Under the circumstances we could hardly say the trial court abused its discretion. The judgment is affirmed. Adkisson, C.J., and Purtle, J., dissent.