Summary
holding issue of the sufficiency of corroborating testimony of accomplice was waived where the requirement of corroboration was not raised to the trial court
Summary of this case from Cook v. StateOpinion
No. CR 77-173
Opinion delivered December 5, 1977
1. CRIMINAL LAW — SEARCH SEIZURE — PLAIN-VIEW DOCTRINE. — The seizure, pursuant to a warrant, of a pistol observed on the floor of appellant's car by an officer at the time of appellant's arrest on a bad-check charge was valid, and the gun could have been taken by the officer under the plain-view doctrine, without a warrant. 2. CRIMINAL PROCEDURE — AFFIDAVIT FOR SEARCH WARRANT — RELIABILITY OF INFORMANT. — An affidavit for search of appellant's home was sufficient where the affiant stated that a reliable informant told him that a sawed-off shotgun used in a robbery-murder was there and where the informant's reliability had previously been established by the furnishing of information to officers which led to the recovery from appellant's vehicle of a 22-caliber revolver taken in the same crime. 3. CRIMINAL PROCEDURE — MOTION TO SUPPRESS — SUBSTANTIAL OR UNCONSTITUTIONAL VIOLATION NECESSARY FOR GRANTING. — Rule 16.2, Rules of Crim. Proc. (1976), provides that a motion to suppress shall be granted only if the court finds that a violation is substantial or contrary to the federal or state constitution. 4. SEARCH WARRANT — PROBABLE CAUSE FOR ISSUANCE REQUIRED — PARTICULAR DESCRIPTION OF PLACE TO BE SEARCHED OR THING SEIZED NECESSARY. — There must be probable cause for the issuance of a search warrant, supported by oath or affirmation, and it must particularly describe the place to be searched and the person or thing to be seized. [Ark. Const., Art. 2, 15, and Ark. Const., Amend. 4.] 5. CRIMINAL PROCEDURE — OMISSION OF 60-DAY AND 5-DAY DIRECTIVES IN RULE 13.2, RULES OF CRIM. PROC. — EFFECT. — Where a warrant for the search of appellant's house was executed and the return made within a few hours after it was issued, the omission of the 60-day directive that it be executed within 60 days and the 5-day directive that the return be made within five days after execution, which are contained in Rule 13.2, Rules of Crim. Proc. (1976), could not have prejudiced appellant. 6. SEARCH SEIZURE — NIGHTTIME SEARCH — BASIS FOR PROMPT ACTION, WHAT CONSTITUTES. An officer's sworn statement that evidence of a crime might be disposed of was a basis for prompt action and a nighttime search, particularly when confirmed by the fact that appellant's brother-in-law attempted to flee with the evidence when officers arrived to search the premises. 7. CRIMINAL PROCEDURE — REASONABLE CAUSE FOR ISSUANCE OF SEARCH WARRANT — ACTUAL ISSUANCE ESTABLISHES FINDING. — A magistrate's actual issuance of a search warrant establishes his finding of reasonable cause more positively than the insertion of a conclusory finding to that effect in the warrant would have done. 8. EVIDENCE — CORROBORATION OF ACCOMPLICES' TESTIMONY — WAIVER. — Where the necessity for corroboration of the testimony of accomplices is not mentioned in the trial court, it is waived. 9. CRIMINAL LAW — EVIDENCE — CORROBORATION OF ACCOMPLICES TESTIMONY, SUFFICIENCY OF. — In a robbery-murder case, there was sufficient corroboration of the accomplices' testimony where the murder itself was proven by wholly independent evidence and one of the witnesses in question was not an accomplice as a matter of law.
Appeal from Monroe Circuit Court, W. M. Lee, Judge; affirmed.
Solloway, Cronkhite Jackson, by: Lanny K. Solloway, for appellant.
Bill Clinton, Atty. Gen., by: Joyce Williams Warren, Asst. Atty. Gen., for appellee.
Upon trial by jury the appellant was found guilty of capital murder and was sentenced to life imprisonment without parole. For reversal he argues that the trial court should have sustained his motion to suppress evidence — two pistols obtained under separate search warrants and that the State's proof, apart from the testimony of accomplices, is insufficient to support the verdict. We affirm the judgment.
On August 20, 1976, according to the State's proof, two men entered the home of Beulah Collins, robbed her of a money belt containing $200, left her tied up, and killed Joe Vinson, who was renting a room in the house. Someone, presumably the robbers, set fire to the house the next day, but Mrs. Collins was rescued by neighbors. Mrs. Collins testified that the robbers took a .22-caliber pistol and a .32-caliber pistol.
On August 24 the appellant Harris was arrested on a bad-check charge. Soon after that arrest the arresting officer saw a pistol on the floor of the car that Harris was driving. The officer obtained a search warrant and seized the pistol, which was shown by its serial number to have been the 22 that was taken from Mrs. Collins. The search of the vehicle took place at about 8:30 p.m. On the basis of that evidence the officers at once obtained a second warrant and searched Harris's apartment, finding on the person of his brother-in-law, Curtis Fryer, a .32-caliber pistol which was adequately shown to be the other gun that was taken.
The validity of the first seizure presents no real question, because the pistol might have been taken by the arresting officer under the plain-view doctrine, without a warrant. With respect to the second seizure, however, both the affidavit for the warrant and the warrant itself are challenged.
We find the affidavit sufficient, under the principles laid down in Aguilar v. Texas, 378 U.S. 108 (1964), and later cases. The affidavit contains a statement by the affiant that an informant had, before Harris's arrest on August 27, told officers that Harris was a participant in the robbery-murder that occurred on August 20. The affiant went on to say that the informant's reliability was shown by the fact that the .22-caliber revolver, serial number T523073, that was taken in the robbery was found in the vehicle that Harris was operating. The same informant reported that a sawed-off shotgun used in the robbery-murder was at Harris's home. An immediate search was called for, because evidence of the robbery-murder could be readily disposed of.
On the basis of the affidavit the magistrate was justified in finding that the informant (who testified at the trial) was reliable, because her statement about Harris's participation in the earlier crimes was shown by the seizure of the .22 to have been accurate. Hence the informant's further statement that a sawed-off shotgun used in the crimes was at Harris's home justified the issuance of a warrant for the search of that home.
As to the warrant itself, it did not recite, as required by the Rules of Criminal Procedure, Rule 13.2 (1976), that the magistrate found reasonable cause for the issuance of the warrant, that it be executed only between 6:00 a.m. and 8:00 p.m., that it be executed within 60 days, or that the return be made within 5 days after execution. It is also argued that no exigent circumstances justifying a night time search were shown in the affidavit.
The Rules themselves recognize that all the recitations just mentioned are not essential to the validity of a warrant. Rule 16.2 provides that a motion to suppress shall be granted only if the court finds that a violation is substantial or contrary to the federal or state constitution. The Fourth Amendment and Article 2, Section 15, of the Constitution of 1874 stress the really vital matters: That the warrant be issued upon probable cause, supported by oath or affirmation, and that it particularly describe the place to be searched and the person or thing to be seized. Those essential requirements were met in this instance.
The question, then, is whether the absence of the several recitations was a substantial violation of Harris's rights. We do not think so. Inasmuch as the warrant was executed and the return made within a few hours after the warrant was issued, the omission of the 60-day and 5-day directives could not have prejudiced Harris. As to the need for a nighttime search, the officer's sworn statement that evidence of the crimes might be disposed of was certainly a basis for prompt action. We may note, parenthetically, that when the officers entered Harris's apartment with the search warrant, Fryer ran out of the back door with the .32-caliber pistol that was introduced at the trial. Finally, the magistrate's actual issuance of the search warrant established his finding of reasonable cause even more positively than the insertion of a conclusory finding to that effect would have. See Baxter v. State, 262 Ark. 303, 556 S.W.2d 428 (1977), where we upheld the warrant even though the magistrate's finding was not that there was reasonable cause for the issuance of the warrant but merely that there was reasonable ground for suspicion that the described property was concealed in Baxter's house. Here we find no substantial violation of Harris's rights.
There remains to be considered the sufficiency of the State's proof, apart from the testimony of accomplices. We find the proof sufficient, for either of two reasons. First, the necessity for corroboration of accomplices' testimony was not mentioned in any way in the trial court and was therefore waived. Trotter v. State, 215 Ark. 121, 219 S.W.2d 636 (1949); Morris v. State, 197 Ark. 778, 126 S.W.2d 93 (1939).
Second, there was in fact sufficient corroboration of the accomplices' testimony. The murder itself was proved by wholly independent evidence. The finding of the 22-caliber pistol in Harris's car established his connection with the crime. In addition, Fryer, who cannot be said to have been an accomplice as a matter of law, testified to Harris's having been away from his home, with the accomplices, when they said he was, and to Harris's having stated two days before the crime that he was going to rob somebody and tie them up. That, in substance, is just what happened.
Affirmed.
BYRD, J., not participating.