{ "id": 1884282, "name": "Kyle Duane CHERRY v. STATE of Arkansas", "name_abbreviation": "Cherry v. State", "decision_date": "1990-06-11", "docket_number": "CR 89-234", "first_page": "462", "last_page": "471", "citations": [ { "type": "official", "cite": "302 Ark. 462" }, { "type": "parallel", "cite": "791 S.W.2d 354" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "Mo. Ann. Stat. \u00a7 558.011", "category": "laws:leg_statute", "reporter": "Mo. Ann. Stat.", "pin_cites": [ { "parenthetical": "3" } ], "opinion_index": 0 }, { "cite": "Mo. Ann. Stat. \u00a7 570.090", "category": "laws:leg_statute", "reporter": "Mo. Ann. Stat.", "year": 1979, "pin_cites": [ { "page": "(2)" } ], "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 5-4-503", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "opinion_index": 0 }, { "cite": "299 Ark. 566", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1888373 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/299/0566-01" ] }, { "cite": "300 Ark. 25", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1886843 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/300/0025-01" ] }, { "cite": "290 Ark. 375", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1873720 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ark/290/0375-01" ] }, { "cite": "Ark. Code Ann. \u00a7 12-9-108", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "298 Ark. 489", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1889843 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/298/0489-01" ] }, { "cite": "771 S.W.2d 283", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1989, "opinion_index": 0 }, { "cite": "299 Ark. 123", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1888323 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/299/0123-01" ] }, { "cite": "300 Ark. 265", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1886901 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/300/0265-01" ] }, { "cite": "295 Ark. 72", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1893788 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/295/0072-01" ] }, { "cite": "649 P.2d 677", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10433284 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/p2d/649/0677-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-93-701", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "pin_cites": [ { "parenthetical": "b" } ], "opinion_index": 0 }, { "cite": "483 U.S. 868", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 28251 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/us/483/0868-01" ] }, { "cite": "482 F.2d 929", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1322744 ], "year": 1973, "pin_cites": [ { "parenthetical": "signs and public address announcements in airport warning passengers they are subject to search at boarding" } ], "opinion_index": 0, "case_paths": [ "/f2d/482/0929-01" ] }, { "cite": "562 F.2d 349", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 885763 ], "year": 1977, "pin_cites": [ { "parenthetical": "warning sign to visitors entering penitentiary that they are subject to search" } ], "opinion_index": 0, "case_paths": [ "/f2d/562/0349-01" ] }, { "cite": "294 Ark. 639", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1895719 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/294/0639-01" ] }, { "cite": "79 A.L.R.3d 1083", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "year": 1977, "opinion_index": 0 } ], "analysis": { "cardinality": 810, "char_count": 15229, "ocr_confidence": 0.869, "pagerank": { "raw": 3.516345200798308e-07, "percentile": 0.8835652194394344 }, "sha256": "1b8e68c8ce46fc12283d14c16316875399571dc56e80ac8778393a7c20db539f", "simhash": "1:8b23e34a27e8fa66", "word_count": 2532 }, "last_updated": "2023-07-14T14:34:09.444418+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Glaze, J., concurs." ], "parties": [ "Kyle Duane CHERRY v. STATE of Arkansas" ], "opinions": [ { "text": "Dale Price, Justice.\nThe appellant was charged with capital felony murder. The jury convicted him of first degree murder and sentenced him to life imprisonment. He raises six issues on appeal, None have merit.\nOn October 21, 1988, the appellant was arrested for violating the terms and conditions of his parole. Parole officers discovered drugs and a number of firearms at a residence shared by the appellant and Bob Vargason, who was also a convicted felon on parole. The items, including a .45 pistol, were discovered pursuant to a search of the residence and of the appellant\u2019s vehicle. The appellant was taken into custody and transported to the Sharp County sheriff\u2019s office.\nTen days later, the appellant gave investigating officers two statements implicating himself in the murder of a man named Jimmie Pendergrass. Pendergrass had been found dead on April 11,1988. His trailer had burned while he was inside. It was later determined that he had died from a blow to the head before the fire occurred.\nIn his statements, the appellant told officers that he knew that Pendergrass owned a number of guns. He went to the trailer on April 11, 1988, for the purpose of stealing the guns. While inside, Pendergrass arrived home unexpectedly and appellant was discovered. Pendergrass threatened Cherry with a .45 pistol, and held the gun on the appellant for several minutes while the appellant tried to talk his way out of the situation. When Pendergrass looked away for a moment, the appellant kicked him. Pendergrass fell backward, hitting his head on the bumper of the appellant\u2019s truck. At this point, the appellant said, he realized Pendergrass was dead. He dragged the body inside the trailer. The pistol, which Pendergrass still gripped in his hand, discharged unexpectedly, setting the trailer on fire. The appellant finished loading the guns which he was stealing and left the scene. On the basis of these statements, the appellant was charged with capital felony murder.\nThe appellant\u2019s first argument concerns the legality of the warrantless search of his vehicle. Prior to trial, he moved to suppress from evidence a .45 pistol, seized as a result of that search.\nThe facts are that the appellant\u2019s parole officer, Ken Opper, received information that the appellant had moved in with Bob Vargason. Opper and Bob Wilkin, who was Vargason\u2019s parole officer, went to the residence. Upon arriving, they discovered a number of firearms in the house, plus evidence of marijuana use. Opper particularly noted the presence of some loose .45 rounds and some .45 magazines in a drawer. He said to the appellant, \u201cthere is another gun here somewhere.\u201d The appellant said he had owned a .45 but had sold it.\nThe appellant and Vargason were arrested at this point and transported to the sheriffs office by Deputy Dennis Burton. Deputy Burton then returned to the scene to assist in the search and seizure of items from the house. (Vargason had consented to a search of the house.) Parole officer Wilkin planned to search the appellant\u2019s vehicle, which was parked in the driveway. At Wilkin\u2019s request, Deputy Burton used a \u201cSlimjim\u201d device to unlock the door of the vehicle. Wilkin then searched the car and discovered the .45 pistol. Neither Deputy Burton nor any other member of the sheriffs office participated further in the search of the vehicle.\nDuring the suppression hearing, it was revealed that, approximately six weeks prior to his arrest, the appellant signed a document entitled \u201cNotice to Parolees.\u201d The document read as follows:\nAny parolees\u2019 person, automobile, residence, or any property under his control may be searched by a parole officer without a warrant if the officer has reasonable grounds for investigating whether the parolee has violated the terms of his parole or committed a crime.\nIt is not uncommon for probationers and parolees to be subject to a condition requiring consent to various kinds of searches. See Cohen & Gobert, The Law of Probation and Parole, \u00a7 6.02 at 225 (1983). The great majority of courts have upheld the validity of this practice. Cohen & Gobert, \u00a7 5.07 at 206 and \u00a7 8.03 at 378-80; Annot., 79 A.L.R.3d 1083 (1977). The question of whether a parolee\u2019s advance consent to a warrantless search is valid has not been addressed by this court.\nIn reviewing a trial judge\u2019s ruling on a motion to suppress, we make an independent determination based on the totality of the circumstances and reverse only if the ruling is clearly against the preponderance of the evidence. Campbell v. State, 294 Ark. 639, 746 S.W.2d 37 (1988).\nThe first matter to resolve is whether the \u201cNotice to Parolee\u201d signed by the appellant amounts to a consent. We find that it does. The notice does not contain the words, \u201cI consent to a warrantless search,\u201d but it does recognize the possibility that such a search may occur. By signing the notice the appellant impliedly consented to a warrantless search. Implied consent has been recognized in similar contexts in which persons were aware in advance that they could be subject to a search. See United States v. Sihler, 562 F.2d 349 (5th Cir. 1977) (warning sign to visitors entering penitentiary that they are subject to search); United States v. Doran, 482 F.2d 929 (9th Cir. 1973) (signs and public address announcements in airport warning passengers they are subject to search at boarding).\nHaving determined that the notice constitutes a consent, the next question is whether such a consent-in-advance is valid. The recent United States Supreme Court case of Griffin v. Wisconsin, 483 U.S. 868 (1987), is instructive. At issue in Griffin was an administrative regulation permitting a probation officer to search a probationer\u2019s home without a warrant, so long as there were reasonable grounds to believe contraband was present. The regulation explicitly defined \u201creasonable grounds.\u201d\nThe Court held that a warrantless search pursuant to this regulation did not violate the 4th amendment. The Court recognized that supervision of probationers is a \u201cspecial need\u201d of the state, permitting a degree of impingement upon privacy that would not be constitutional if applied to the public at large. Therefore, it was concluded, it is impractical to require a search warrant. It was also concluded that the usual requirement that probable cause exist to justify a search may be replaced by the reasonable grounds standard.\nUsing the same reasoning, we hold that this warrantless search, pursuant to appellant\u2019s implied consent, did not violate the 4th amendment. The special needs of the parole process call for intensive supervision of the parolee making the warrant requirement impractical. It is also clear, although the United States Supreme Court did not employ this line of reasoning, that the appellant, as a parolee, has a diminished expectation of privacy. Legally, he is still in custody of the penal institution from which he was released. See Ark. Code Ann. \u00a7 16-93-701 (b)(4) (1987). Finally, we note that there was no contention on the appellant\u2019s part that his consent was not given voluntarily and intelligently.\nWe must point out that a parole/probation officer\u2019s ability to conduct a warrantless search is not unlimited. But the consent in this case, like the regulation in Griffin v. Wisconsin, supra, contains elements that insure a search will be conducted reasonably. First of all, the consent allows a warrantless search only if reasonable grounds exist. Second, the consent does not extend to all law officers, but only to parole officers, thereby preserving its purpose as a tool of parole supervision.\nHaving decided that the consent is valid, the final question is whether the search was carried out under the terms of the consent. Two issues must be addressed: 1) were there reasonable grounds to investigate whether the appellant had violated the terms of his parole, and 2) was the search conducted by a parole officer? We find there was compliance with both of these terms. Among the conditions of the appellant\u2019s parole was one that he not associate with convicted felons. The parole officer\u2019s knowledge that the appellant was living with another convicted felon constituted reasonable grounds to investigate the violation.\nIt is also clear that, despite Deputy Burton\u2019s minimal participation in the search, the search was conducted by a parole officer. A parole officer may enlist the aid of the police, and a police officer may act at the direction of a parole officer without overreaching the scope of the search. Sanderson v. State, 649 P.2d 677 (Wyo. 1982).\nWe find the warrantless search conducted by the parole officer was valid. The trial court\u2019s action in refusing to suppress the .45 pistol was correct.\nOur determination that the search was valid makes it unnecessary to address the appellant\u2019s claim that his in-custody statements should have been suppressed as the fruits of an illegal search. However, we do consider the appellant\u2019s claim that his statements to investigating officers should have been suppressed because the officers continued to question him after he requested the presence of an attorney.\nThe appellant claims that as soon as he reached the sheriffs office on October 21, he asked for permission to call his attorney. He claims the telephone log shows he placed a call to his attorney, but the log does not reveal that such a call was made by the appellant. He also claims that just prior to being questioned on October 31 and November 1, the dates on which he gave the statements in question, he asked to see his attorney. This claim is not borne out by the evidence. The interrogating officers testified that they were unaware of such a request. In addition, a waiver of rights form signed by the appellant acknowledges he was \u201cwilling to make a statement and answer questions\u201d and that he \u201cdid not want a lawyer at this time.\u201d\nAn accused in custody, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by authorities until counsel has been made available to him. Bussard v. State, 295 Ark. 72, 747 S.W.2d 71 (1988).\nIn examining the issue of whether an appellant either invoked or knowingly waived his Miranda rights, we make an independent review of the totality of the circumstances and reverse the trial court only if its ruling is clearly against the preponderance of the evidence. Findley v. State, 300 Ark. 265, 778 S.W.2d 624 (1989).\nHere, there is simply nothing to show that the appellant ever invoked his right to counsel. His claim that he tried to phone his attorney is belied by the entries, or lack of entries in the telephone log. The trial court\u2019s determination that the appellant\u2019s testimony was not credible is well supported by the evidence; therefore, the refusal to suppress appellant\u2019s statements was correct.\nThe next issue concerns the appellant\u2019s request for the appointment of an independent pathologist. In a motion filed prior to trial, the appellant alleged that he was indigent and claimed that he needed the testimony of an independent pathologist to contest the findings of the state\u2019s medical examiner. The trial judge declared he would summarily deny the motion unless the appellant wanted to present evidence on the matter. The appellant said he did wish to present evidence, and the trial judge said he would hear the evidence on the morning of the trial. No evidence on the matter was ever presented to the court, and on the morning of the trial, the motion was denied.\nThe appellant has failed to demonstrate, either at the trial level or here, how he was prejudiced by the court\u2019s refusal to appoint the independent pathologist. Prejudice must be demonstrated before reversible error occurs. Taylor v. State, 299 Ark. 123, 771 S.W.2d 283 (1989).\nThe next issue concerns the validity of testimony given by law enforcement officers who, it is alleged, did not meet the qualifications set forth by the Arkansas Commission on Law Enforcement Standards and Training. See Grable v. State, 298 Ark. 489, 769 S.W.2d 9 (1989). The appellant claims that the testimony offered against him by these officers should have been stricken under Ark. Code Ann. \u00a7 12-9-108(a) (1987), which reads:\nA person who does not meet the standards and qualifications set forth in this subchapter or any made by the Arkansas Commission on Law Enforcement Standards and Training shall not take any official action as a police officer, and any action taken shall be held as invalid.\nGrable v. State, supra, is distinguished from this case in that the objection raised there related to the act of the officer in bringing charges. Here, the motion in limine was directed toward police officers giving testimony. Law enforcement officers are not disqualified as witnesses based on whether they have met the criteria set forth by regulations promulgated by the Arkansas Commission on Law Enforcement Standards and Training. A person is presumed to be competent to be a witness. Jackson v. State, 290 Ark. 375, 720 S.W.2d 282 (1986); A.R.E. Rule 601. There was no error in permitting the officers\u2019 testimony.\nAppellant\u2019s next contention is that the jury panel should have been quashed. He argues that the selection of jurors from a list of registered voters denied him an impartial jury. \"\nWe have held that the use of such a method to select jurors does not violate the requirement that the jury be selected from a representative cross-section of the community. Sanders v. State, 300 Ark. 25, 776 S.W.2d 334 (1989); Mitchell v. State, 299 Ark. 566, 776 S.W.2d 332 (1989). Appellant argues that the jury was partial because it was composed of the same registered voters who elected the judge and prosecutor. This argument is answered simply by saying that a list of registered voters would include those who voted for the judge or prosecutor, those who voted for their opponents and those who did not vote at all.\nFinally, appellant argues that error occurred in the sentencing phase of the trial. The state offered a certified copy of a conviction from the State of Missouri to prove appellant\u2019s status as a habitual offender. The docket entry noted that the appellant had pled guilty to \u201cForgery (Class C) (3 counts).\u201d The appellant claims the conviction should not have been used against him because the record of the conviction did not show it carried a sentence in excess of one year, as required by Ark. Code Ann. \u00a7 5-4-503 (1987).\nWe take judicial notice that under Missouri law, forgery is a Class C felony. Mo. Ann. Stat. \u00a7 570.090(2) (Vernon 1979). A Class C felony is punishable by a term of years not to exceed 7 years. Mo. Ann. Stat. \u00a7 558.011 (1)(3) (Vernon 1979). These prior convictions were properly considered.\nIn accordance with Ark. Sup. Ct. Rule 11 (f), which must be followed in cases involving the death penalty or life imprisonment, we have reviewed the record and all objections decided adversely to the appellant and have found no error.\nAffirmed.\nGlaze, J., concurs.", "type": "majority", "author": "Dale Price, Justice." } ], "attorneys": [ "G. Keith Watkins, for appellant.", "Steve Clark, Att\u2019y Gen., by: Joseph V. Svoboda, Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Kyle Duane CHERRY v. STATE of Arkansas\nCR 89-234\n791 S.W.2d 354\nSupreme Court of Arkansas\nOpinion delivered June 11, 1990\nG. Keith Watkins, for appellant.\nSteve Clark, Att\u2019y Gen., by: Joseph V. Svoboda, Asst. Att\u2019y Gen., for appellee." }, "file_name": "0462-01", "first_page_order": 490, "last_page_order": 499 }