{ "id": 1900909, "name": "Dale Freemond DAY v. STATE of Arkansas", "name_abbreviation": "Day v. State", "decision_date": "1991-09-30", "docket_number": "CR 91-94", "first_page": "520", "last_page": "527", "citations": [ { "type": "official", "cite": "306 Ark. 520" }, { "type": "parallel", "cite": "816 S.W.2d 852" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "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": "776 F.2d 1398", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1516343 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/f2d/776/1398-01" ] }, { "cite": "899 F.2d 1104", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10536077 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/f2d/899/1104-01" ] }, { "cite": "612 S.W.2d 115", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1174853 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ark/272/0098-01" ] }, { "cite": "272 Ark. 99", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1174843 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ark/272/0099-01" ] }, { "cite": "288 Ark. 323", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8720224 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ark/288/0323-01" ] }, { "cite": "303 Ark. 401", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1882788 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/303/0401-01" ] }, { "cite": "299 Ark. 482", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1888366 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/299/0482-01" ] }, { "cite": "302 Ark. 371", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1884296 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/302/0371-01" ] }, { "cite": "470 U.S. 68", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11298833 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "83" } ], "opinion_index": 0, "case_paths": [ "/us/470/0068-01" ] }, { "cite": "304 Ark. 98", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1881064 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/304/0098-01" ] }, { "cite": "305 Ark. 296", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1916736 ], "weight": 2, "year": 1991, "pin_cites": [ { "parenthetical": "citing Brown v. State, 304 Ark. 98, 800 S.W.2d 424 (1990)" }, { "parenthetical": "citing Brown v. State, 304 Ark. 98, 800 S.W.2d 424 (1990)" } ], "opinion_index": 0, "case_paths": [ "/ark/305/0296-01" ] }, { "cite": "302 Ark. 532", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1884276 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/302/0532-01" ] }, { "cite": "304 Ark. 726", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1880859 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/304/0726-01" ] } ], "analysis": { "cardinality": 764, "char_count": 13797, "ocr_confidence": 0.886, "pagerank": { "raw": 1.3004201873183541e-07, "percentile": 0.6220349140046388 }, "sha256": "0f6d86f243a29375589661b11e4f54fc1cddc8598c5767f4c4e9d0b384862b63", "simhash": "1:96a8a0a4f7ea9b84", "word_count": 2304 }, "last_updated": "2023-07-14T15:19:57.276738+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Dale Freemond DAY v. STATE of Arkansas" ], "opinions": [ { "text": "Jack Holt, Jr., Chief Justice.\nDale Freemond Day, the appellant, was convicted of battery in the first degree and murder in the first degree, and sentenced to ten and forty years imprisonment, respectively. The sentences are to run concurrently.\nDay now seeks reversal of his convictions, alleging that the trial court erred; 1) in admitting two photographs of the murder victim into evidence; 2) in refusing to sever the battery and murder offenses; 3) in refusing to grant funds for a private psychiatric evaluation; and 4) in allowing the admission of Day\u2019s statements into evidence. We disagree with all four arguments and affirm.\nThe facts at trial were presented primarily through the testimony of the battery victim, the investigating officers, and Day, himself.\nOn the evening of March 3, 1990, Day, who had been residing in Minnesota, arrived at the home of his estranged wife, Victoria Day, in West Fork, Arkansas. Finding no one there, Day entered one of the bedrooms and eventually fell asleep. He awoke to the sound of the television and realized that Victoria and her uncle, James Woodring, with whom she had been having an affair, were in the living room watching a T.V. program. Victoria shortly thereafter entered the bedroom, whereupon Day struck her repeatedly with the butt of a shotgun, breaking both of her hands. Day then went into the living room and hit Mr. Woodring with the shotgun. Mr. Woodring had been asleep on the couch and when he attempted to rise, Day shot him. Day shot Mr. Woodring twice more as Mr. Woodring attempted to leave the house through the front door. The victim got as far as the driveway before he collapsed and died. Day asked Victoria for her car keys and drove Victoria\u2019s car to a nearby convenience store where he had parked his own car earlier. Day exchanged cars, drove to the sheriff\u2019s department, and turned himself in at approximately 2:45 a.m. on March 4.\nI. ADMISSION OF PHOTOGRAPHS\nDay first contends the trial court erred in admitting into evidence two photographs, State\u2019s exhibits 3 and 4, depicting James Woodring\u2019s body after the shooting. Day asserts the pictures were overly gruesome and inflamatory and that the probative value of the pictures was outweighed by their prejudicial effect. We do not agree.\nTestimony at trial established that Mr. Woodring had been asleep prior to Day\u2019s assault and that he ran out of the house, barefoot, to escape from Day. State\u2019s Exhibit 3 showed that Mr. Woodririg was shoeless, and Exhibit 4 showed where Mr. Wood-ring had fallen in proximity to the house. They were the only photographs of the crime scene admitted into evidence.\nEven inflamatory photographs can be admitted if they shed light on any issue or are helpful to the jury. Strawhacker v. State, 304 Ark. 726, 804 S.W.2d 720 (1991). The admission of such evidence lies within the discretion of the trial court, and we will not reverse, absent an abuse of that discretion. Morris v. State, 302 Ark. 532, 792 S.W.2d 288 (1990). We find no such abuse here.\nII. SEVERANCE OF OFFENSES\nDay next argues that the trial court erred in denying his pretrial motion to sever the first degree battery charge and the first degree murder charge.\nIn addition to the battery and murder offenses, Day was charged with felon in possession of a firearm. The trial court severed this offense, but held that the battery and murder charges should be tried together as they were \u201cpart of the res gestae.\u201d\nArk. R. Crim. P. 21.1 provides:\nTwo (2) or more offenses may be joined in one (1) information or indictment with each offense stated in a separate count, when the offenses, whether felonies or misdemeanors or both:\n(a) are of the same or similar character, even if not part of a single scheme or plan; or\n(b) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.\nA trial court\u2019s decision to deny a motion for severance is discretionary, and two or more criminal offenses are based \u201con a series of acts connected together\u201d when the offenses occurred close together in time and place. Gillie v. State, 305 Ark. 296, 808 S.W.2d 320 (1991) (citing Brown v. State, 304 Ark. 98, 800 S.W.2d 424 (1990)).\nHere, Day\u2019s assault on Victoria Day occurred only minutes before Day shot and killed James Woodring, who was present in the next room. Furthermore, Day\u2019s distress and jealousy over his wife\u2019s affair with Mr. Woodring can fairly be characterized as the \u201csingle scheme or plan\u201d which prompted him to commit the offenses. The court was correct in not severing the charges.\nIII. PSYCHIATRIC EVALUATION\nCiting Ake v. Oklahoma, 470 U.S. 68 (1985), Day next claims the trial court erred in refusing to grant his request for a private psychiatric evaluation in order to determine his competency to stand trial. Ake provides in pertinent part:\n. . .[W]hen a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.\n470 U.S. at 83. Day\u2019s claim is without merit. In the first place, an examination of the record reflects that Day did not demonstrate to the trial judge that his present competence or his sanity at the time of the offenses would be a significant factor at trial. The trial court, as a cautionary measure, ordered psychiatric evaluation of Day by Dr. Travis Jenkins of the Ozark Guidance Center. Dr. Jenkins reported that Day was competent to stand trial and that there was \u201cno evidence to suggest that he was psychotic at the time of the alleged offenses. . .\u201d, or during Dr. Jenkins\u2019interview with him.\nAs a result of Dr. Jenkins\u2019 report, Day filed a motion to appoint a private psychiatrist, claiming that since he had some difficulty with anxiety, depression, and behavioral problems, he was entitled to the opinion of a \u201cprivate employed expert.\u201d In denying Day\u2019s motion, the trial court noted that Dr. Jenkins\u2019 report reflected that \u201cany evidence of anxiety, depression or behavioral problems were not pertinent to [Day\u2019s] psychiatric assessment around the time of the alleged offenses,\u201d and that \u201che had been afforded an evaluation at [the] Ozark Guidance Center by a duly licensed and qualified psychiatrist. . .\u201d\nWe have repeatedly held that a defendant\u2019s right to examination under Ake is protected by an examination by the state hospital. Wainwright v. State, 302 Ark. 371, 790 S.W.2d 420 (1990); Branscomb v. State, 299 Ark. 482, 774 S.W.2d 426 (1989). So, even if Day was entitled to an examination, his evaluation at the Ozark Guidance Center is equivalent to examination by the State Hospital. We find no fault in the trial court\u2019s rulings.\nIV. ADMISSION OF STATEMENTS\nLastly, Day argues that the trial court erred in allowing into evidence the oral and written statements he made to the police.\nDay filed a pretrial motion to suppress all oral and written statements, alleging they were obtained in violation of his privilege against self-incrimination and right to counsel. A suppression hearing was held in which the State called the two officers present when the statements were made. Officer Seigle Bell, an investigator with the Washington County Sheriff\u2019s Department, was on duty at the Sheriff\u2019s office when Day turned himself in in the early morning hours of March 4. Officer Bell testified that Day came into the dispatch room with Corporal Leroy Johnson, who pointed to Day and stated, \u201cI think this is the man you\u2019re looking for.\u201d (Officer Bell testified that he had previously received a report of a possible homicide which named the appellant as a suspect.) Day stated his name, and Officer Bell asked him to place his hands against the wall while he proceeded to pat Day down for weapons. At that point, Day remarked: \u201cThe gun is in my car. It\u2019s parked outside.\u201d Officer Bell immediately escorted Day to the waiting room and advised him of his Miranda rights.\nDay challenges the admission of this initial statement on the grounds that his entrance to the Sheriffs office placed him in a custodial situation and that he should have been \u201cmirandized\u201d before he uttered the incriminating information. We agree with the trial court, however, that the statement was admissible as a spontaneous utterance.\nIn determining whether statements are admissible, we evaluate the totality of the circumstances and reverse only if the trial court\u2019s finding is clearly against the preponderance of the evidence. Walker v. State, 303 Ark. 401, 797 S.W.2d 447 (1990). The statement was made within minutes of Day\u2019s arrival at the station, and there is no evidence that Day was coerced or induced into speaking. Officer Bell\u2019s decision to frisk Day first for weapons was appropriate under the circumstances and did not constitute the type of \u201ccustodial interrogation\u201d for which the Miranda warnings were designed. We have held many times that a suspect\u2019s spontaneous statements, although made in police custody and prior to Miranda warnings, are admissible against him. See Futch v. State, 288 Ark. 323, 705 S.W.2d 11 (1986); Ward v. State, 272 Ark. 99, 612 S.W.2d 115 (1981).\nThe other admitted statements to which Day objects occurred after he was twice issued the Miranda warnings. In the first instance, Officer Bell testified that he read each sentence from the standard form used in the department and wrote down Day\u2019s response. Day then reviewed and initialed the form, indicating that he understood his rights.\nFollowing this procedure, Officer Bell and Day entered Officer Bell\u2019s office and sat down with a cup of coffee, at which point Day began talking about the incident, implicating himself in both the battery and murder offenses. Officer Bell testified that he advised Day to wait until Captain O\u2019Kelly arrived, before talking, but Day insisted on continuing.\nWhen Day completed his story, Officer Bell told him that he was going to write out a statement from his notes and have Day sign it. Day then stated, \u201cWell, before I sign anything, I probably better talk to a lawyer.\u201d\nCaptain O\u2019Kelly testified that when he arrived, Officer Bell briefed him concerning Day\u2019s statement and informed him that Day wished to speak with an attorney before proceeding further. In the presence of Officer Bell, Captain O\u2019Kelly again advised Day of his Miranda rights, and Day executed a second statement of rights form. Captain O\u2019Kelly then informed Day that he knew of Day\u2019s request for counsel and asked Day whether he wanted him to contact a lawyer, to which Day responded that Officer Bell had been mistaken about his request and that he only wanted a lawyer prior to going to court. Captain O\u2019Kelly testified that Day \u201cwanted to tell him what happened.\u201d Day allowed Captain O\u2019Kelly to make written notes of his statement, at the end of which he added his signature.\nAs to Day\u2019s oral statement to Officer Bell, Day merely argues that this statement is inadmissible since it was \u201ctainted\u201d by the first oral statement. This argument is meritless as the first statement was a spontaneous utterance.\nFurthermore, again reviewing the totality of the circumstances, there is no evidence that Day (a repeat offender with five previous convictions) was not fully aware of his rights. Officer Bell testified that Day appeared sober and reasonable and clearly indicated that he understood the rights read to him. Once Day received and understood the Miranda warnings administered to him but, nonetheless, insisted on talking to Officer Bell, he waived those rights.\nWith regard to the statement made to Captain O\u2019Kelly, Day contends that it, too, was tainted and also, that when he informed Officer Bell he wanted an attorney, all interrogation should have ceased. The trial court ruled that Day effectively recanted this request when he informed Captain O\u2019Kelly that Officer Bell had been wrong about his desire for counsel, and that he wanted to talk. In addition, the trial court noted that there was a serious question as to whether Day actually asserted his right to counsel. In either event, the trial court was correct.\nProfessors LaFave and Israel state in Criminal Procedure, Vol. 1, \u00a7 6.9 (1984 and Supp. 1991), \u201cthere is much to be said for the conclusion some courts have reached: \u2018where a suspect makes an equivocal assertion of counsel, the police must cease all questioning, except that they may attempt to clarify the suspect\u2019s desire for counsel.\u2019 \u201d (Citing Towne v. Dugger, 899 F.2d 1104 (11th Cir. 1990)). See also United States v. Fouche, 776 F.2d 1398 (9th Cir. 1985). Here, Day\u2019s comment that he wanted to talk to a lawyer \u201cbefore I sign anything\u201d constitutes the type of \u201cequivocal\u201d assertion to which Professors LaFave and Israel are referring, and should not preclude further questioning to clarify the matter. See Criminal Procedure, supp. 1991 at 132.\nWe do not agree with Day that Captain O\u2019Kelly\u2019s dialogue with him following his announcement that he would like to talk with counsel before signing anything amounted to \u201cinterrogation.\u201d Captain O\u2019Kelly was merely clarifying Day\u2019s request and took no action to elicit incriminating information. Even if we found that Day properly invoked his right to counsel, his statement still became admissible evidence since it was he, and not the police, who initiated further discussion of the evening\u2019s events. See Bussard v. State, 295 Ark. 72, 747 S.W.2d 71 (1988).\nFor the foregoing reasons, we affirm.", "type": "majority", "author": "Jack Holt, Jr., Chief Justice." } ], "attorneys": [ "Denny Hyslip, for appellant.", "Winston Bryant, Att\u2019y Gen., by: Sandy Moll, Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Dale Freemond DAY v. STATE of Arkansas\nCR 91-94\n816 S.W.2d 852\nSupreme Court of Arkansas\nOpinion delivered September 30, 1991\nDenny Hyslip, for appellant.\nWinston Bryant, Att\u2019y Gen., by: Sandy Moll, Asst. Att\u2019y Gen., for appellee." }, "file_name": "0520-01", "first_page_order": 572, "last_page_order": 579 }