{ "id": 6136269, "name": "Greg SHRADER v. STATE of Arkansas", "name_abbreviation": "Shrader v. State", "decision_date": "1984-11-07", "docket_number": "CA CR 84-48", "first_page": "17", "last_page": "27", "citations": [ { "type": "official", "cite": "13 Ark. App. 17" }, { "type": "parallel", "cite": "678 S.W.2d 777" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "6 Ark. App. 228", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140616 ], "weight": 2, "year": 1982, "pin_cites": [ { "parenthetical": "see the dissenting opinion" }, { "parenthetical": "see the dissenting opinion" } ], "opinion_index": 0, "case_paths": [ "/ark-app/6/0228-01" ] }, { "cite": "305 P. 2d 228", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1956, "pin_cites": [ { "page": "234" } ], "opinion_index": 0 }, { "cite": "198 Ark. 1004", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1459743 ], "weight": 2, "year": 1939, "opinion_index": 0, "case_paths": [ "/ark/198/1004-01" ] }, { "cite": "272 Ark. 346", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1174915 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/ark/272/0346-01" ] }, { "cite": "11 Ark. App. 18", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6648097 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/ark-app/11/0018-01" ] }, { "cite": "261 Ark. 820", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1678931 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/ark/261/0820-01" ] }, { "cite": "206 S.E.2d 213", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "285 N.C. 497", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565262 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/285/0497-01" ] }, { "cite": "280 Ark. 577", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1744808 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/ark/280/0577-01" ] }, { "cite": "270 Ark. 972", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1709150 ], "weight": 4, "year": 1980, "pin_cites": [ { "page": "975" } ], "opinion_index": 0, "case_paths": [ "/ark/270/0972-01" ] }, { "cite": "7 Ark. App. 175", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139557 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/ark-app/7/0175-01" ] }, { "cite": "279 Ark. 174", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1746962 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "178" } ], "opinion_index": 0, "case_paths": [ "/ark/279/0174-01" ] }, { "cite": "262 Ark. 342", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1675874 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/ark/262/0342-01" ] }, { "cite": "269 Ark. 538", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1712476 ], "weight": 4, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/269/0538-01" ] }, { "cite": "256 Ark. 738", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8724688 ], "weight": 2, "year": 1974, "opinion_index": 0, "case_paths": [ "/ark/256/0738-01" ] }, { "cite": "377 U.S. 201", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6166804 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/us/377/0333-01" ] }, { "cite": "276 Ark. 177", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1751484 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "182" } ], "opinion_index": 0, "case_paths": [ "/ark/276/0177-01" ] }, { "cite": "271 Ark. 71", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1756164 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/271/0071-01" ] }, { "cite": "457 U.S. 537", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6191611 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/us/457/0537-01" ] }, { "cite": "445 U.S. 573", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1777746 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "589-90" } ], "opinion_index": 0, "case_paths": [ "/us/445/0573-01" ] } ], "analysis": { "cardinality": 841, "char_count": 16021, "ocr_confidence": 0.848, "pagerank": { "raw": 1.5563812232321983e-07, "percentile": 0.67618324466021 }, "sha256": "10de6a6426f7619ea02c41c3fedd92ed1bb4f2e837ce8c2e25d2ff6d43677cc2", "simhash": "1:2d6d915c602cf21f", "word_count": 2727 }, "last_updated": "2023-07-14T22:52:11.493423+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Cloninger and Corbin, JJ., agree." ], "parties": [ "Greg SHRADER v. STATE of Arkansas" ], "opinions": [ { "text": "Melvin Mayfield, Judge.\nAppellant was arrested for conspiracy to commit capital murder. The state alleged appellant had attempted to hire Bill Smith to kill Dan Stewart and had committed the overt acts of obtaining a pistol and a silencer for Smith to use. Smith, however, reported the incident to Stewart and then disappeared for several weeks. When Smith returned, he cooperated with authorities by wearing a \u201cbody pack\u201d to appellant\u2019s home several times, thereby recording conversations in which they discussed the killing. The last such visit by Smith was on Saturday, October 30, 1982. On Tuesday, November 2, well after dark, officers went to appellant\u2019s home without a warrant and about midnight they arrested him. Appellant was taken to the sheriff\u2019s office and, after he was read his Miranda rights, he was questioned for about three hours.\nPrior to trial, appellant filed a motion to suppress the in-custody statement, the statements recorded by means of the body pack worn by. informant Bill Smith, and certain other physical evidence. In the alternative, appellant moved for all references to other crimes contained in the statements to be excluded from the hearing of the jury as being irrelevant to the crime charged. The motion was denied. After a five-day trial, appellant was convicted and sentenced to 20 years.\nAppellant\u2019s first point for reversal is that the motion to suppress his three-hour midnight statement should have been granted since it was preceded by a warrantless arrest of appellant in his home despite the fact that there were no exigent circumstances and a warrant could have been obtained. In Payton v. New York, 445 U.S. 573 (1980), the United States Supreme Court held that the Fourth Amendment, made applicable to the states by the Fourteenth, prohibits the police from making a warrant-less and nonconsensual entry into a suspect\u2019s home to make a routine felony arrest. Pointing out that \u201cthe simple language of the Amendment applies equally to seizures of persons and to seizures of property,\u201d the.Court said:\nThe Fourth Amendment protects the individual\u2019s privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual\u2019s home \u2014 a zone that finds its foots in clear and specific constitutional terms: \u201cThe right of the people to be secure in their . ... houses . . . shall not be violated.\u201d That language unequivocally establishes the proposition that \u201c[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.\u201d . . . Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.\nId. at 589-90.\nPayton involved two appellants. The other appellant, Obie Riddick, was arrested at his home without a warrant. When the police knocked on the door, Riddick\u2019s young son opened it and they saw Riddick sitting in bed covered with a sheet. They entered the house and placed him under arrest. Before permitting him to dress, they opened a chest of drawers two feet from the bed in search of weapons and found narcotics and drug paraphernalia. Riddick was subsequently convicted on narcotics charges and the Supreme Court of the United States reversed the trial court\u2019s refusal to suppress the evidence found in the chest of drawers. In United States v. Johnson, 457 U.S. 537 (1982), the Court relied upon Payton to affirm a United States Circuit Court of Appeals\u2019 decision that held a defendant\u2019s written statement should be suppressed as fruit of an. unlawful arrest where the statement was obtained after a warrantless arrest of defendant while he stood in the doorway of his home, after having opened the door in response to false identification by government agents.\nThe Arkansas Supreme Court, in Jackson v. State, 271 Ark. 71, 607 S.W.2d 371 (1980), applied Payton to remand the case for the trial court to determine if exigent circumstances existed to allow the warrantless arrest of the defendant at his home. The court said Payton held that:\n[T]he threshold of one\u2019s home cannot reasonably be crossed without a warrant in the absence of exigent circumstances. Although the defendant must nonetheless stand trial the exclusionary rule prohibits introduction of any evidence seized pursuant to such an arrest....\nIn the instant case, the trial court found that the appellant was arrested without a warrant and without exigent circumstances. But the court held, and it is argued on appeal, that because the officers knocked on appellant\u2019s door, asked him to step outside, and arrested him on the front porch, the arrest was not unlawful as there was no actual entry into the home. We think Scroggins v. State, 276 Ark. 177, 182, 633 S.W.2d 33 (1982), indicates otherwise. There the court said:\nThe State offers a parenthetical argument that Scroggins consented to leave the room and was actually arrested outside the room and, therefore, no Payton issue exists. The facts demonstrate why this argument is meritless. The officers held a gun on Scroggins and asked him to come out of the room; obviously there could be no free choice on the part of Scroggins in such a situation.\nHere, the record shows that the officers had sufficient evidence by October 31, 1982, to constitute probable cause to believe that appellant was involved in a conspiracy to commit murder. However, they made no effort to obtain a warrant even though they had two working days to do so. We find appellant\u2019s arrest on the night of November 2,1982, to be unlawful in light of Payton, and that the statement taken from him in the sheriff\u2019s office immediately after that arrest should have been suppressed. We therefore reverse and remand.\nIn view of the remand, we discuss those points which might arise in a new trial. Appellant contends that the trial court erred in refusing to suppress the body-pack tapes in their entirety, or at least those parts of the statements which contained references to a matter for which appellant had already been charged and had retained counsel. He relies on Massiah v. United States, 377 U.S. 201 (1964), which held that it was error for government agents to obtain and testify to incriminating statements made to an informer by a defendant who was represented by counsel, had been indicted, and had entered a plea of not guilty. In the instant case, however, appellant had not yet been charged with or arrested for the. conspiracy to commit murder when he made the statements which Smith recorded. An additional distinction is that Massiah had already retained an attorney to represent him on the charge he was questioned about. Here, although appellant had hired an attorney, it was to represent him on a charge of possession of a prohibited weapon \u2014 not conspiracy to commit murder.\nThe principle of law in this case is similar to that in Kerr & Pinnell v. State, 256 Ark. 738, 512 S.W.2d 13 (1974), where a convicted defendant became an informer and taped voluntary conversations with an unindicted accomplice. See also Smithey v. State, 269 Ark. 538, 602 S.W.2d 676 (1980). Those cases demonstrate that there was no constitutional right, federal or state, violated in the taping of the conversations in the instant case and that the trial court did not err in refusing to suppress the body-pack tapes.\nAppellant\u2019s argument that certain portions of the tapes should be suppressed is directed toward references to an incident in which a pickup truck was searched after it crashed into a concrete embankment and was abandoned. In looking for the registration, an officer discovered a gun adapted for use with a silencer and a book on how. to make a silencer. The officer testified that the vehicle was found to be registered in the name of appellant\u2019s brother, but also testified that he had seen the appellant drive the vehicle quite often and that appellant lived within 200 feet of where the accident occurred. Moreover, appellant\u2019s brpther testified that, although the vehicle was registered in his name, the appellant really owned it and usually drove it.\nThe appellant was charged with possession of a prohibited weapon, and the possession of the weapon and the book was subsequently alleged as evidence of an overt act in furtherance of the conspiracy. However, Ark. Stat. Ann. \u00a7 41-105(1) (Repl. 1977) provides:\nWhen the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense.\nSee also King v. State, 262 Ark. 342, 557 S.W.2d 386 (1977). We do not think it was error for the court to admit these tapes into evidence in their entirety.\nAppellant next argues, in regard to the testimony of Bill Smith and Junior Brown, that the trial court should have instructed the jury that the testimony of an accomplice must be corroborated. The appellant\u2019s abstract contains an objection to the court\u2019s failure to give such requested instructions but the instructions are not abstracted and there is no reference to where they may be found in the transcript. For that reason we could not decide this point on its merits. Pitcock v. State, 279 Ark. 174, 178, 649 S.W.2d 393 (1983); Green v. State, 7 Ark. App. 175, 646 S.W.2d 20 (1983). However, because of the remand for new trial we think it necessary to discuss the issue to some extent.\nIn Cate v. State, 270 Ark. 972, 606 S.W.2d 764 (1980), the appellant was found guilty of conspiracy to commit criminal mischief. The charges stemmed from the destruction of a helicopter owned by a company in which Cate was the majority stockholder. Edd Conn, a codefendant and employee of the company, testified that he was approached by Cate about destroying the helicopter to collect the insurance on it. Conn enlisted the aid of Ken Doles and they set fire to the helicopter. The trial court instructed the jury that Conn and Doles were accomplices as a matter of law and that Cate could not be convicted upon the uncorroborated testimony of an accomplice. The court refused, however, to tell the jury that Conn\u2019s common-law wife was an accomplice as a matter of law, even though she tried to find some gasoline for Conn and Doles to use in burning the helicopter. The court submitted her status to the jury and this was affirmed on appeal because she testified that Conn had assured her that he would have nothing to do with the actual destruction of the helicopter. The Arkansas Supreme Court said:\nWe hold, in the circumstances, that she was not an accomplice as a matter of law. Her complicity was a fact issue. The jury could reasonably infer that her unsuccessful effort to find a gas can, with the knowledge of its intended use, was not made with the true purpose of aiding in the accomplishment of the criminal endeavor.\nWe think that Cate stands for the following points of law that are also involved in the instant case.\n1. A conspiracy is a crime in and of itself, and it exists as Cate says \u201cwhen one, for \u2018the purpose of promoting or facilitating the commission\u2019 of a criminal offense, agrees with another person or persons that he will engage or aid in committing the offense coupled with an overt act pursuant to the conspiracy.\u201d See also Ark. Stat. Ann. \u00a7 41-707 (Repl. 1977) and its Commentary.\n2. A coconspirator may also be an accomplice. Accord Spears, Cassell & Bumgarner v. State, 280 Ark. 577, 660 S.W.2d 913 (1983), and State v. Carey, 285 N.C. 497, 206 S.E.2d 213 (1974).\n3. A conviction cannot be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense; the corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof. Cate v. State, 270 Ark. at 975 [quoting from Ark. Stat. Ann. \u00a7 43-2116 (Repl. 1977)].\n4. Whether a witness is an accomplice is usually a mixed question of fact and law, and the finding of a jury as to whether a witness is an accomplice is binding unless the evidence shows conclusively that the witness was an accomplice. Cate v. State, 270 Ark. at 976 (citing Wilson & Dancy v. State, 261 Ark. 820, 552 S.W.2d 223 (1977)).\nApplying the above points of law to the case at bar, we think under the evidence in the record now before us it would be proper to use AMCI 403 to submit to the jury the question of whether Junior Brown, who made the silencer for the gun which he was told was to be used to kill Dan Stewart, was an accomplice. See Robinson v. State, 11 Ark. App. 18, 665 S.W.2d 890 (1984). But we think that the record before us presents a different situation as to Bill Smith.\nArk. Stat. Ann. \u00a7 41-305 (Repl. 1977) affords an affirmative defense to an accomplice who terminates his complicity (in accordance with the provisions of the statute) prior to the commission of the offense. Also, Ark. Stat. Ann. \u00a7 41-710 (Repl. 1977) affords an affirmative defense to prosecution for conspiracy to commit an offense to one who (in accordance with the provisions of the statute) terminates his participation in the conspiracy. We do not believe, however, that these sections eliminate the necessity for the corroboration of Smith\u2019s testimony. Smith had already committed the offense of criminal conspiracy by planning the commission of an offense and committing the overt act of helping to procure a silencer for the gun to be used in the planned offense. He may have a defense to liability for the crime of conspiracy and to being an accomplice, but his testimony against a member of the conspiracy must be corroborated.\nWe distinguish, in this regard, cases such as Roleson v. State, 272 Ark. 346, 614 S.W.2d 656 (1981) and Breed v. State, 198 Ark. 1004, 132 S.W.2d 386 (1939). In Roleson it is indicated that the accomplice status of a witness could be vitiated by duress imposed through a threat to her son. This simply means that because of duress one may not be an actual or real participant in the crime. The same principle applies to Breed where the court said the jury elected to take the view that a witness \u201cwas not a participant in the crime, but was acting under the direction and instruction of a peace officer of the state.\u201d\nIn People v. Comstock, 305 P. 2d 228, 234 (Cal. Dist. Ct. App. 1956) the court said: \u201cThe statutory requirement of corroboration is based primarily upon the fact that experience has shown that the evidence of an accomplice should be viewed with care, caution and suspicion because it comes from a tainted source and is often given in the hope or expectation of leniency or immunity.\u201d In 30 Am. Jur. 2d Evidence \u00a7 1148 at 323 (1967), it is said that \u201ca long history of human frailty and governmental overreaching for conviction has justified distrust in accomplice testimony.\u201d We hold that Ark. Stat. Ann. \u00a7 43-2116 (Repl. 1977), requiring that the testimony of an accomplice be corroborated, applies to the testimony of Bill Smith as a matter of law under the circumstances of the record now before us. We point out, however, that we cannot predict the state of thp record on retrial.\nThe appellant\u2019s last point has been addressed by what we have already said. Conspiracy is a separate crime. One may be charged with conspiracy to commit capital murder and with capital murder also. Smith v. State, 6 Ark. App. 228, 640 S.W.2d 805 (1982) (see the dissenting opinion). One could also be charged as an accomplice in the same case. Cate v. State, supra. There is no merit in appellant\u2019s argument that he was found guilty of a \u201cconspiracy to conspire.\u201d See Smithey v. State, 269 Ark. 538, 602 S.W.2d 676 (1980).\nReversed and remanded for a new trial.\nCloninger and Corbin, JJ., agree.", "type": "majority", "author": "Melvin Mayfield, Judge." } ], "attorneys": [ "Matthew T. Horan, for appellant.", "Steve Clark, Att\u2019y Gen., by: Velda West Vanderbilt, Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Greg SHRADER v. STATE of Arkansas\nCA CR 84-48\n678 S.W.2d 777\nCourt of Apeals of Arkansas Division II\nOpinion delivered November 7, 1984\n[Rehearing denied December 5, 1984.]\nMatthew T. Horan, for appellant.\nSteve Clark, Att\u2019y Gen., by: Velda West Vanderbilt, Asst. Att\u2019y Gen., for appellee." }, "file_name": "0017-01", "first_page_order": 37, "last_page_order": 47 }