Rankin v. State

Paul RANKIN v. STATE OF Arkansas

CA CR 94-278                                       ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division I
                Opinion delivered April 23, 1997


1.   Motions -- directed-verdict motion discussed -- issue not
     properly preserved for appeal. -- A motion for a directed
     verdict is a challenge to the sufficiency of the evidence; in
     order to preserve this issue on appeal, a defendant must move
     for a directed verdict at the conclusion of the evidence
     presented by the prosecution and again at the close of the
     case; otherwise, any question pertaining to the sufficiency of
     the evidence to support a jury's verdict is waived; here,
     appellant failed to make the required motion after the State
     had presented rebuttal testimony; therefore, the issue was not
     preserved for appeal, and the appellate court would not
     consider it.

2.   Evidence -- denial of motion to suppress -- review of. -- In
     reviewing a trial court's denial of a motion to suppress
     evidence, the appellate court makes an independent
     determination based on the totality of the circumstances and
     reverses the trial court's ruling only if it is clearly
     against the preponderance of the evidence.   

3.   Search & seizure -- defendant must have standing to challenge
     search on Fourth Amendment grounds -- constitutionality of
     search will not be addressed without legitimate expectation of
     privacy. -- The protection of the Fourth Amendment guarantees
     the right of people to be secure against unreasonable searches
     and seizures; these rights are personal in nature; thus, a
     defendant must have standing before he can challenge a search
     on Fourth Amendment grounds; a person's Fourth Amendment
     rights are not violated by the introduction of damaging
     evidence secured by a search of a third person's premises or
     property; the pertinent inquiry regarding standing to
     challenge a search is whether a defendant manifested a
     subjective expectation of privacy in the area searched and
     whether society is prepared to recognize that expectation as
     reasonable; a proponent of a motion to suppress bears the
     burden of establishing that his Fourth Amendment rights have
     been violated; the appellate court will not reach the
     constitutionality of a search where a defendant has failed to
     show that he had a legitimate expectation of privacy in the
     object of the search.

4.   Search & seizure -- standing to challenge search -- overnight
     guest may have reasonable expectation of privacy. -- An
     accused's status as an overnight guest is, alone, enough to
     show that he had an expectation of privacy in the home that
     society is prepared to recognize as reasonable. 

5.   Search & seizure -- appellant failed to establish legitimate
     expectation of privacy in victim's home -- trial court's
     decision not clearly against preponderance of evidence. --  
     Based on the evidence introduced at the hearing, appellant
     failed to establish a legitimate expectation of privacy in the
     victim's residence; appellant may have occasionally stayed
     with the victim in her apartment; however, the mere fact that
     he frequently stayed there did not in and of itself give rise
     to a reasonable expectation of privacy; appellant did not own
     the premises, and there was no indication that appellant main-
     tained control over her apartment, nor was there any showing
     that appellant had been an overnight guest at the time the
     search occurred; considering the totality of the
     circumstances, the trial court's decision was not clearly
     against the preponderance of the evidence. 

6.   Evidence -- admissibility of left to sound discretion of trial
     court -- trial court's weighing of evidence will not be
     reversed absent showing of manifest abuse. -- Evidentiary
     matters regarding the admissibility of evidence are left to
     the sound discretion of the trial court and rulings in this
     regard will not be reversed absent an abuse of discretion;
     Ark. R. Evid. 403 allows a trial court to exclude relevant
     evidence if its probative value is substantially outweighed by
     the danger of unfair prejudice; this weighing is also a matter
     left to the trial court's sound discretion and will not be
     reversed absent a showing of manifest abuse.  

7.   Evidence -- statements attributed to appellant bore close
     relation to facts surrounding murder -- admission of testimony
     as relevant not abuse of discretion. -- Where the statements
     attributed to appellant bore a close relation to the facts
     surrounding the murder, there were no witnesses, the murder
     weapon was never located, the evidence demonstrated that
     appellant was evasive in his responses to questioning by the
     police, and the conversation was said to have occurred only
     three weeks before the murder, and given the distinct
     correlation between the statements made by appellant and the
     evidence presented at trial, the appellate court found no
     abuse of discretion in the trial court's rulings that the
     testimony was relevant and that its probative value exceeded
     any danger of unfair prejudice.

8.   Motions -- motion for continuance discussed -- appellant bears
     burden of proving that trial court's denial of motion was
     abuse of discretion. -- A motion for a continuance is
     addressed to the sound discretion of the trial court, and a
     decision will not be reversed absent an abuse of discretion
     amounting to a denial of justice; the appellant bears the
     burden of proving that the trial court's denial of a motion
     for continuance was an abuse of discretion, and that burden
     entails a showing of prejudice.   

9.   Motions -- continuance -- factors to be considered in deciding
     motion. -- Factors to be considered by a trial court in
     deciding a continuance motion include: (1) the diligence of
     the movant; (2) the probable effect of the testimony at trial;
     (3) the likelihood of procuring the attendance of the witness
     in the event of a postponement; and (4) the filing of an
     affidavit, stating not only what facts the witness would
     prove, but also that the appellant believes them to be true.

10.  Motions -- testimony went to issue crucial to defense -- trial
     court abused its discretion by refusing appellant's request
     for brief recess. -- Where the appellant was accused of first-
     degree murder, the case mounted by the State was built
     entirely on circumstantial evidence, the State elicited
     testimony concerning the copious amount of blood on the victim
     and the furnishings in her apartment, and also stressed that
     appellant's clothes had bloodstains on them at the time of his
     arrest, it was crucial for the defense to dispel any notion
     that the victim was the source of this blood; under these
     circumstances, the bare stipulation as to what the witness
     would have testified to was not a genuine substitute for live
     testimony of the witness who was prepared to give pivotal
     testimony; prejudice resulted from the trial court's refusal
     to grant a brief continuance so that the witness could appear; 
     where there was no lack of diligence on the part of appellant,
     and the delay requested was only for a short period of time,
     the trial court abused its discretion by refusing appellant's
     request for a brief recess.


     Appeal from Sebastian Circuit Court; Floyd Rogers, Judge;
reversed and remanded.
     John Joplin, for appellant.
     Winston Bryant, Att'y Gen., by:  J. Brent Standridge, Asst.
Att'y Gen., for appellee.


     Judith Rogers, Judge.
     The appellant, Paul Rankin, was charged by information with
the offense of first-degree murder in connection with the shooting
death of Charlotte Geiger.  After a jury trial, appellant was found
guilty of second-degree murder and was sentenced to a term of
twenty years in prison.  Appellant raises four issues for reversal
of his conviction.  He argues that:  (1) the trial court erred in
denying his motion for a directed verdict; (2) the trial court
erred in denying his motion to suppress evidence seized in a
warrantless search; (3) the trial court erred in allowing
irrelevant and prejudicial testimony; and (4) the trial court erred
in denying appellant's motion for a recess to allow an expert
witness to testify.  We find merit in the last issue raised. 
Consequently, we reverse and remand for a new trial.
     Charlotte Geiger, the victim, owned a duplex at 701 North 8th
Street in Fort Smith.  She lived in one apartment while the other
was occupied by James Stevenson.  Ms. Geiger also owned a residence
at 715 North "G" Street, which was located behind the duplex. It
was said that these homes were in a bad neighborhood and that Ms.
Geiger was always careful about locking her door.  
     There was testimony that on February 1, 1993, appellant, Mr.
Stevenson, and Charles Storey were helping Ms. Geiger make repairs
to the "G" Street residence.  Mr. Stevenson testified that
appellant was intoxicated and that appellant and Ms. Geiger had
argued about the way appellant was doing the work.  When they
finished late in the afternoon, Ms. Geiger went inside her home and
Mr. Stevenson and appellant remained outside for a brief time
talking.  Mr. Stevenson later visited a friend at the bus station
and returned to his apartment.  At around 6:30, Mr. Stevenson left
again to get a friend to come help him with repairs in his
apartment.  He said that he heard the sound of moaning coming from
Ms. Geiger's apartment when he left.  Shortly after Mr. Stevenson
and his friend returned, they heard a knock at the door.  Mr.
Stevenson opened the door to find Ms. Geiger, covered in blood,
standing in the hallway separating their apartments.  She was taken
to the hospital where it was learned that she had been shot twice
in the face.  She died three days later without identifying her
assailant.  It was said that her wounds had been caused by .25
caliber bullets.
     The investigating officers conducted a warrantless search of
Ms. Geiger's apartment after speaking with witnesses at the
hospital.  During the search, they discovered a large amount of
blood on the bed, as well as on the floor, a telephone, and another
piece of furniture.  There were two shell casings at the foot of
the bed and an empty holster was found sitting on a coffee table. 
There was testimony that appellant had acquired the holster with an
X-Cam .25 caliber handgun in a trade with a friend for stereo
equipment.  There was also testimony that appellant had pawned the
holster and gun on November 21, 1992, and that he had retrieved
those items from the pawn shop the day of the murder.  Despite
extensive efforts to locate this weapon, the police were unable to
find it.
     Appellant was arrested on the morning of February 2, 1993, as
he was walking toward the back door of the "G" Street residence. 
There were scratches and lacerations on his forehead and hands, and
there appeared to be blood on his clothing.  In an interview with
the police, appellant told the officers that on the day of the
murder he had gone to sleep in his bed after working on the house
and that he had slept all night.  He recalled that he had argued
with Ms. Geiger, but he could not remember what had happened in the
argument.  When asked about his pistol, appellant gave differing
accounts of its whereabouts.  First, he said that it had been
stolen, but he also told them that he had last seen it on a coffee
table in Ms. Geiger's apartment the previous day.  The officers
testified that throughout the interview appellant responded to
questioning by saying that he had either blacked out and could not
remember, or that he had no answers to their questions.  For
instance, when asked if he had shot Ms. Geiger, appellant
responded, "I have no answer for that."  When asked to deny that he
had shot her, appellant replied, "I have no answer for that as
well."
     Appellant first contends that the trial court erred in denying
his motion for a directed verdict.  A motion for a directed verdict
is a challenge to the sufficiency of the evidence.  Bradford v.
State, 325 Ark. 278, 927 S.W.2d 329 (1996).  In order to preserve
this issue on appeal, a defendant must move for a directed verdict
at the conclusion of the evidence presented by the prosecution and
again at the close of the case; otherwise, any question pertaining
to the sufficiency of the evidence to support a jury's verdict is
waived.  Ark. R. Crim. P. 33.1.  Here, appellant failed to make the
required motion after the State had presented rebuttal testimony. 
Therefore, this issue is not preserved for appeal, and we do not
consider it.  Heard v. State, 322 Ark. 553, 910 S.W.2d 663 (1995);
Christian v. State, 318 Ark. 813, 889 S.W.2d 717 (1994).
     As his second point on appeal, appellant argues that the trial
court erred in denying his motion to suppress evidence seized in
the search of Ms. Geiger's apartment.  The State contends, as was
argued below, that appellant lacks standing to protest the search
of Ms. Geiger's home.  In reviewing a trial court's denial of a
motion to suppress evidence, we make an independent determination
based on the totality of the circumstances and reverse the trial
court's ruling only if it is clearly against the preponderance of
the evidence.  Phillips v. State, 53 Ark. App. 36, 918 S.W.2d 721
(1996).   
     At the suppression hearing, evidence was introduced revealing
that Ms. Geiger was the sole owner of the duplex at 701 North 8th
Street.  It was also disclosed that the relationship between
appellant and Ms. Geiger was that of "boyfriend and girlfriend" and
that appellant had stayed at Ms. Geiger's apartment.  Prescriptions
and medicine bottles bearing appellant's name were found in the
apartment.  On the rights form appellant executed before being
interviewed by the police, he recorded his address as 701 North 8th
Street.   
     Evidence was also admitted showing that appellant had listed
his address as 715 North "G" Street on transaction records that
appellant had filled out and signed at a pawn shop on November 21,
1992, and February 1, 1993.  Also, a computer printout from the
pawn shop was introduced showing appellant's pawning activity over
a three-month period.  The printout shows appellant's address as
715 North "G" Street.  The trial court also heard the testimony of
the officers who had interviewed appellant.  One officer testified
that appellant said that "he remembered working at his house" on
the day of the murder and that afterwards he laid down on the bed
in his room and went to sleep.  The officer stated that he had not
seen appellant asleep in Ms. Geiger's apartment at the time of the
search, and he agreed that, if appellant had been telling the
truth, he was sleeping in a room in another residence.
     The protection of the Fourth Amendment guarantees the right of
people to be secure against unreasonable searches and seizures. 
Bernal v. State, 48 Ark. App. 175, 892 S.W.2d 537 (1995).  The
rights secured by the Fourth Amendment are personal in nature. 
Littlepage v. State, 324 Ark. 361, 863 S.W.2d 276 (1993).  Thus, a
defendant must have standing before he can challenge a search on
Fourth Amendment grounds.  Bernal v. State, supra.  A person's
Fourth Amendment rights are not violated by the introduction of
damaging evidence secured by a search of a third person's premises
or property.  Davasher v. State, 308 Ark. 154, 823 S.W.2d 863
(1992).  The pertinent inquiry regarding standing to challenge a
search is whether a defendant manifested a subjective expectation
of privacy in the area searched and whether society is prepared to
recognize that expectation as reasonable.  McCoy v. State, 325 Ark.
155, 925 S.W.2d 391 (1996).  It is well settled that a proponent of
a motion to suppress bears the burden of establishing that his
Fourth Amendment rights have been violated.  Rockett v. State, 319
Ark. 335, 891 S.W.2d 366 (1995).  This court will not reach the
constitutionality of a search where a defendant has failed to show
that he had a legitimate expectation of privacy in the object of
the search.  Littlepage v. State, supra.
     Based on the foregoing evidence introduced at the hearing, we
hold that appellant failed to establish a legitimate expectation of
privacy in Ms. Geiger's residence.  The evidence suggests that
appellant lived in the house on "G" Street and that he may have
occasionally stayed with Ms. Geiger in her apartment.  However, the
mere fact that he frequently stayed there does not in and of itself
give rise to a reasonable expectation of privacy.  Davasher v.
State, supra.  Appellant did not own the premises, and absent from
the record is any indication that appellant maintained control over
Ms. Geiger's apartment.  Id.  We are aware of the Supreme Court's
opinion in Minnesota v. Olson, 459 U.S. 91 (1990), where the Court
pronounced a per se rule that an accused's status as an overnight
guest is, alone, enough to show that he had an expectation of
privacy in the home that society is prepared to recognize as
reasonable.  See also Heard v. State, 316 Ark. 731, 876 S.W.2d 231
(1994).  Even so, there was no showing that appellant had been an
overnight guest at the time the search occurred.  See Marshall v.
State, 316 Ark. 753, 875 S.W.2d 814 (1994).  Considering the
totality of the circumstances, we cannot say that the trial court's
decision is clearly against the preponderance of the evidence. 
     Appellant next challenges the trial court's ruling permitting
the State to elicit testimony from Bruce Garner regarding a
conversation he had with appellant.  Over appellant's objection,
Mr. Garner testified that he, appellant, and John Murry were
drinking beer one night three weeks before the murder.  He said
they were all fairly intoxicated and started talking about how easy
it was to get away with committing crimes, especially the crime of
murder.  Mr. Garner testified that appellant commented that "all
you really had to do was not let there be any witnesses, destroy
the weapon, and whatever evidence there was, and just never admit
to anything and you'd get away with it."  Garner added that, to get
rid of the weapon, appellant said to "take the shortest route to
the river and throw it in."  Appellant contends that this testimony
was not relevant and that any probative value it may have had was
outweighed by the danger of unfair prejudice.
     Rule 401 of the Arkansas Rules of Evidence defines "relevant
evidence" as evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the
evidence.  Evidentiary matters regarding the admissibility of
evidence are left to the sound discretion of the trial court and
rulings in this regard will not be reversed absent an abuse of
discretion.  Harris v. State, 322 Ark. 167, 907 S.W.2d 729 (1995). 
Rule 403 allows a trial court to exclude relevant evidence if its
probative value is substantially outweighed by the danger of unfair
prejudice.  This weighing is also a matter left to the trial
court's sound discretion and will not be reversed absent a showing
of manifest abuse.  Passley v. State, 323 Ark. 301, 915 S.W.2d 248
(1996).  
     The statements attributed to appellant bear a close relation
to the facts surrounding the murder.  There were no witnesses; the
murder weapon was never located; and the evidence demonstrated that
appellant was evasive in his responses to questioning by the
police.  In this respect, the testimony is not unlike that at issue
in Brenk v. State, 311 Ark. 579, 847 S.W.2d 1 (1993).  There, the
appellant was convicted of murdering his wife whose torso was found
in a cooler floating in a lake.  The court found no abuse of
discretion when the trial court admitted the testimony of the
appellant's ex-wife, who testified that appellant had threatened to
kill her and had told her that he would cut her body into pieces so
that she would never be found.  It was held that the testimony was
admissible under Rule 404(b) to show intent, plan and identity. 
The conversation in this case was said to have occurred only three
weeks before the murder.  Given the distinct correlation between
the statements made by appellant and the evidence presented at
trial, we can find no abuse of discretion in the trial court's
rulings that the testimony was relevant and that its probative
value exceeded any danger of unfair prejudice.
     Appellant's remaining argument is that the trial court erred
in denying his request for a brief recess to allow the testimony of
an expert witness who was in transit.  We agree.
     Appellant's clothing, which appeared to be bloodstained, was
sent to the State Crime Lab for testing.  Edward Vollman, a
serologist there, testified at trial on behalf of the defense that
there was human blood on appellant's shirt.  He stated that he had
performed other tests on the shirt but that the results were
inconclusive.  He could not determine the type of the blood because
there was an insufficient amount of material for testing.  He also
identified human blood on appellant's sweater.  He could not state
that the blood found on these articles of clothing belonged to
either appellant or Ms. Geiger.  At the direction of the Fort Smith
Police Department, he submitted samples of what little blood
remained on the clothes to the lab of the Federal Bureau of
Investigation in Washington, D.C., for DNA testing.
     After the State rested its case, appellant advised the court
that in addition to other witnesses he intended to call a Mr.
Dedmon who apparently was not in attendance.  The deputy
prosecuting attorney noted that it was his understanding that Mr.
Dedmon was coming from Washington, D.C.; that he had made a great
effort to be at trial; and that the State had no objection to any
ruling the court might make regarding this witness.  The
prosecution also offered to enter into a stipulation, if necessary. 
At 9:48 a.m., appellant's counsel informed the court that Mr.
Dedmon had not yet arrived, and he requested a brief recess.  The
court remarked that the testimony of this witness would be
cumulative.  However, the deputy prosecutor advised the court that
the DNA testing revealed that the identifiable blood from the
samples came from the appellant, and not Ms. Geiger.  The court
then stated its preference that the parties agree to a stipulation
of the witness's testimony rather than cause a delay of trial.  Ten
minutes later, appellant's counsel stated that Mr. Dedmon's plane
was on time and was due to arrive at 11:00 a.m., and he again moved
for a continuance.  The trial court denied the motion after counsel
eschewed the prosecution's offer to stipulate the witness's
proposed testimony.  Mr. Dedmon's report was admitted into
evidence, and appellant made a proffer of Mr. Dedmon's testimony
that the blood on appellant's shirt was not that of the victim, but
that it had characteristics of appellant's blood.
     At 11:40 a.m., the State had presented testimony in rebuttal,
the jury had been instructed, and the attorneys had made their
closing arguments.  The court sent the jury to lunch for an hour
before beginning its deliberations.  At 11:50, appellant's counsel
informed the court that Mr. Dedmon had arrived and was in the
courtroom.  Counsel asked the court to either permit the witness to
testify or grant a mistrial.  The trial court declined to
reconsider its ruling.
     It is well settled that a motion for a continuance is
addressed to the sound discretion of the trial court, and a
decision will not be reversed absent an abuse of discretion
amounting to a denial of justice.  Wilson v. State, 320 Ark. 142,
895 S.W.2d 524 (1995).  The appellant bears the burden of proving
that the trial court's denial of a motion for continuance was an
abuse of discretion, and that burden entails a showing of
prejudice.  Id.  
     Motions for continuance are governed in part by Rule 27.3 of
the Arkansas Rules of Criminal Procedure, which provides:
   The court shall grant a continuance only
upon a showing of good cause and only for so
long as is necessary, taking into account not
only the request or consent of the prosecuting
attorney or defense counsel, but also the
public interest in prompt disposition of the
case.
The supreme court has outlined several factors to be considered by
a trial court in deciding a continuance motion:
(1) the diligence of the movant; (2) the
probable effect of the testimony at trial; (3)
the likelihood of procuring the attendance of
the witness in the event of a postponement;
and (4) the filing of an affidavit, stating
not only what facts the witness would prove,
but also that the appellant believes them to
be true.
Hill v. State, 321 Ark. 354, 902 S.W.2d 229 (1995).
     Here, the appellant was accused of first-degree murder.  The
case mounted by the State was built entirely on circumstantial
evidence.  The State elicited testimony concerning the copious
amount of blood on the victim and the furnishings in her apartment. 
It was also stressed that appellant's clothes had bloodstains on
them at the time of his arrest.  It was thus crucial for the
defense to dispel any notion that the victim was the source of this
blood.  We are also in agreement with appellant that under these
circumstances a bare stipulation is not a genuine substitute for
the live testimony of a witness who is prepared to give pivotal
testimony.  In sum, we cannot say that no prejudice resulted from
the trial court's ruling.  We also perceive no lack of diligence on
the part of appellant, and the delay requested was only for a short
period of time.  We thus conclude that the trial court abused its
discretion by refusing appellant's request for a brief recess.
     We are not unmindful of the State's contention that appellant
failed to meet the statutory requirement of filing an affidavit
showing what facts the affiant believes the witness will prove and
that the affiant believes these facts to be true.  The supreme
court has consistently interpreted Ark. Code Ann.  16-63-402(a)
(1987)  as mandating an affidavit to justify a continuance due to
a missing witness when the State objects to the continuance. 
Wilson v. State, supra.  Here, however, the State did not object to
a continuance; therefore, appellant's failure to submit an
affidavit is not fatal to his argument.
     We need also mention appellant's argument that the trial
court's ruling denied him the right to call witnesses as guaranteed
by the Sixth Amendment.  Since we have found error in the trial
court's decision on other grounds, we do not consider the merits of
appellant's constitutional argument.  Foreman v. State, 321 Ark.
167, 901 S.W.2d 802 (1995).
     Reversed and remanded.
     Pittman and Crabtree, JJ., agree.