{ "id": 8720224, "name": "Robert D. FUTCH v. STATE of Arkansas", "name_abbreviation": "Futch v. State", "decision_date": "1986-03-10", "docket_number": "CR 85-155", "first_page": "323", "last_page": "327", "citations": [ { "type": "official", "cite": "288 Ark. 323" }, { "type": "parallel", "cite": "705 S.W.2d 11" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "401 U.S. 222", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11712077 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/us/401/0222-01" ] }, { "cite": "275 Ark. 320", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1753632 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/ark/275/0320-01" ] }, { "cite": "275 Ark. 16", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1753667 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/ark/275/0016-01" ] }, { "cite": "451 U.S. 477", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6187603 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/us/451/0477-01" ] }, { "cite": "282 Ark. 563", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1740879 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/ark/282/0563-01" ] }, { "cite": "244 Ark. 676", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8722503 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/ark/244/0676-01" ] }, { "cite": "253 Ark. 144", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1627432 ], "weight": 2, "year": 1972, "opinion_index": 0, "case_paths": [ "/ark/253/0144-01" ] }, { "cite": "272 Ark. 99", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1174843 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/ark/272/0099-01" ] }, { "cite": "384 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046400 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/us/384/0436-01" ] } ], "analysis": { "cardinality": 520, "char_count": 8495, "ocr_confidence": 0.932, "pagerank": { "raw": 5.989406066647367e-08, "percentile": 0.3722388834252499 }, "sha256": "e5295dff2a7902c2bf40ce9c58d6af2b727d0533f2067f40c9d58f9eb7dd5535", "simhash": "1:93db0e646bdda9d6", "word_count": 1451 }, "last_updated": "2023-07-14T22:45:27.788923+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Purtle, J., not participating." ], "parties": [ "Robert D. FUTCH v. STATE of Arkansas" ], "opinions": [ { "text": "Darrell Hickman, Justice.\nRobert Futch shot and killed his former wife, Bonnie Futch, at her mobile home in Poinsett County, Arkansas. He was convicted of first degree murder and sentenced to life imprisonment. Futch argues that statements he made to police officers before he was warned of his rights should have been excluded and that the state should not have been allowed to impeach his testimony with a prior statement. We find no prejudicial error and affirm.\nThe authorities first learned of the incident by a telephone call from Futch\u2019s sister in Arizona. They were told that there had been a shooting at Mrs. Futch\u2019s residence and the investigating officers knew nothing more. They proceeded to the residence and knocked on the door. Futch answered and said, \u201cCan I help you?\u201d Officer Fleming asked if everything was all right and Futch said it was. The officers asked if his wife was home and Futch said, \u201cYes, sir, she is, she is dead.\u201d They asked, \u201cWho shot her?\u201d and Futch replied, \u201cI did.\u201d\nThe trial judge properly permitted introduction of these statements. The fact that Futch was not given the warning of his rights provided for in Miranda v. Arizona, 384 U.S. 436 (1966), does not preclude the use of this evidence. Futch was not in custody, nor was the investigation focused on him. Initially the officers did not even know if a killing had occurred. In Miranda the Court stated:\nThe principles announced today deal with the protection which must be given to the privilege against self-incrimination when the individual is first subjected to police interrogation while in custody at the station or otherwise deprived of his freedom of action in any significant way.\n* * * *\nGeneral on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding. . . .Insuch situations the compelling atmosphere inherent in the process of in-custody interrogation is not necessarily present.\nIn three very similar cases we have held such statements are admissible. Ward v. State, 272 Ark. 99, 612 S.W.2d 118 (1981); Chenault v. State, 253 Ark. 144, 484 S. W.2d 887 (1972); Stout v. State, 244 Ark. 676, 426 S.W.2d 800 (1968). The trial court also admitted two statements Futch made while he was in the police car en route to the station. Officer Toddy testified that Futch was not questioned and that he spontaneously stated, \u201cI did what I had to do.\u201d Toddy testified Futch also said at the station, \u201che had ended his problem, that he didn\u2019t have a problem anymore.\u201d Futch argues broadly that all statements should have been excluded, but does not contend that he was questioned by Toddy; there is no evidence that he was. The trial court was not wrong, then, to permit these statements to be admitted. Berna v. State, 282 Ark. 563, 670 S.W.2d 435 (1984).\nWhen Futch arrived at the station and was given his Miranda warnings, he said he wanted to talk to a lawyer. Ignoring this, an officer proceeded to question him and took a statement from him. The trial judge properly excluded this statement as taken in violation of Edwards v. Arizona, 451 U.S. 477 (1981). Once a suspect in custody indicates he wants to talk to a lawyer, all questioning must cease and cannot be resumed by the state. State v. Branam, 275 Ark. 16, 627 S.W.2d 8 (1982); Dillard v. State, 275 Ark. 320, 629 S.W.2d 291 (1981).\nBoth Futch and Frances English, Futch\u2019s cousin who was present in the home and witnessed the shooting, testified. Futch said he had been drinking heavily that day. He called his former wife and wanted to talk to her. She agreed to let him come over. Futch arrived on the afternoon of July 29,1984, between 2 and 4 p.m. Frances English was there with her daughter, son-in-law and grandchildren. Futch talked with them for a while, then English\u2019s daughter, son-in-law and grandchildren left. According to Futch, he got a gun out of the closet in the bedroom of the trailer because he was afraid the children would find it. He returned to the kitchen, was sitting at a table, and asked Bonnie to sit down. He said she said something smart to him, and he just shot her. He said he could not remember any more. He denied any intention of going there to kill her or even contemplating shooting her. Frances English said she did not see Futch with a gun until she heard Bonnie say, \u201cOh, my god, Bob, don\u2019t do this.\u201d When she saw that Bonnie was shot, English ran outside. Futch followed and persuaded her to return. They called his sister in Arizona and Futch told her that he had shot Bonnie.\nThis brings us to the second issue. On cross-examination the state asked Futch if he remembered talking to Officer Jim Furnish. Futch said he did not. Then the state asked, \u201cAnd you don\u2019t remember telling him that you were sorry that you shot the little girl, but she needed it.\u201d (Italics supplied.) Futch said no. The defense attorney objected to the questioning. After the defense rested, the state announced that it would call Officer Furnish on rebuttal to testify that Futch had said \u201che hated to do it to the little girl, but she needed it.\u201d (Italics supplied.) This officer had testified at the suppression hearing that Futch had said \u201che hated to do it to the little girl, but he did what he had to do.\u201d (Italics supplied.) This is one of the statements that the trial court suppressed from the case-in-chief.\nAfter Officer Furnish testified on rebuttal that Futch had said that Bonnie Futch \u201cneeded it,\u201d the defense attorney objected that he had not been furnished with a copy of this new version of the statement before trial and that the statement had been ruled inadmissible. In Harris v. New York, 401 U.S. 222 (1971), the United States Supreme Court ruled that the state could properly impeach the defendant\u2019s credibility on cross-examination with earlier statements he made which conflicted with his trial testimony if the statements were trustworthy. On appeal Futch argues that Officer Furnish\u2019s testimony does not meet the Harris requirements for two reasons. He contends that the statement testified to by Officer Furnish was not inconsistent with his trial testimony and that the testimony was not trustworthy because Officer Furnish changed his version since the suppression hearing.\nIf Futch did indeed say that Bonnie Futch \u201cneeded\u201d killing, that would certainly contrast with his testimony at trial that he just shot her while he was drunk because she made a smart remark and that he had not intended to do it. Whether or not Officer Furnish\u2019s testimony was credible was an issue for the jury. The defense cross-examined him and he admitted that he had given a different version at the suppression hearing. It was for the jury to decide which version was the truth. Futch also argues that he was prejudiced by the trial court\u2019s failure to give a cautionary instruction which would have told the jury that the statement was to be considered only for impeachment purposes and not as substantive evidence of Futch\u2019s guilt. The trial court agreed to give the instruction but evidently forgot. Between the time the court offered to give it and the time Officer Furnish testified there was another witness who testified. We find that it was incumbent upon the defense to remind the trial court to give the instruction. Furthermore, the jury had already heard evidence that Futch had admitted the killing. We find no prejudicial error in failing to give the limiting instruction.\nThe trial court found no substantial difference in the two statements. We agree the disparity is so slight that it amounts to the classic distinction without a difference. Either statement could be used, arguably, to show that Futch had the necessary intent to support a conviction for first degree murder. We think the trial court\u2019s decision was not clearly wrong or an abuse of discretion.\nUnder Ark. Stat. Ann. \u00a7 43-2725 (Repl. 1977), as put into effect by our Rule 11 (f), we consider all objections brought to our attention in the abstracts and briefs in appeals from a sentence of life imprisonment or death. In this case we find no prejudicial error in the points argued or in the other objections abstracted for review.\nAffirmed.\nPurtle, J., not participating.", "type": "majority", "author": "Darrell Hickman, Justice." } ], "attorneys": [ "Henry & Mooney, by: Wayne Mooney, for appellant.", "Steve Clark, Att\u2019y Gen., by: Charles R. Lucus, Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Robert D. FUTCH v. STATE of Arkansas\nCR 85-155\n705 S.W.2d 11\nSupreme Court of Arkansas\nOpinion delivered March 10, 1986\nHenry & Mooney, by: Wayne Mooney, for appellant.\nSteve Clark, Att\u2019y Gen., by: Charles R. Lucus, Asst. Att\u2019y Gen., for appellee." }, "file_name": "0323-01", "first_page_order": 355, "last_page_order": 359 }