Gary Hughes v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOSEPHINE LINKER HART, JUDGE

DIVISION II

GARY HUGHES

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR00-58

October 25, 2000

APPEAL FROM THE POLK COUNTY CIRCUIT COURT

[NO. CR-98-55]

HONORABLE GAYLE K. FORD,

CIRCUIT JUDGE

AFFIRMED

Appellant, Gary Hughes, appeals his convictions for rape and residential burglary for which he was sentenced to thirty-five years for the former conviction and five years for the latter, to be served consecutively. On appeal, he argues that the evidence was insufficient to support his convictions because the State failed to identify him as the perpetrator of the crimes. He also argues that certain remarks he made while in custody and the fruit of that confession should be suppressed because the statements were made without a knowing, intelligent, and voluntary waiver of his rights under Miranda v. Arizona, 384 U.S. 436 (1966). Further, appellant argues that certain evidence should be suppressed because it was untimely disclosed to him. Finally, he contends that the trial court failed to exercise its discretion when it ordered the sentences to be served consecutively. We affirm.

Appellant first argues that the State failed to establish that it was he who committed

the crimes. On appeal, we review the evidence in the light most favorable to the appellee and sustain the conviction if there is substantial evidence, even if that evidence is circumstantial, to support the verdict. See, e.g., Sera v. State, 341 Ark. 415, 17 S.W.3d 61 (2000).

The victim, who was asleep in her bed at her apartment and wearing a nightgown, was awakened by a man leaning over her. The man held a cold, sharp object to her neck and told her not to scream, or he would cut her. He ordered her to remove her clothing, and he raped her vaginally and rectally. The victim testified that it was dark, and she could not see his face. The victim was able to pull an emergency cord at the head of her bed, which summoned a neighbor to her apartment. A neighbor entered the victim's apartment and asked the victim if she was okay. The victim replied that she had been raped. The perpetrator ran out of the apartment. The neighbor was unable to see the perpetrator's face, however, because the perpetrator had pulled his black jacket or shirt up around his head and shoulders, covering his face.

Even though neither the victim nor the neighbor was able to identify appellant as the perpetrator, in reviewing the circumstantial evidence presented at trial, we conclude that there was substantial evidence to identify appellant and connect him to the crimes. Appellant was dropped off near the crime scene around 2:00 a.m. on May 16, 1998, and arrested for public intoxication within 100 to 175 yards of the crime scene at 3:14 a.m., approximately fifteen minutes after the crimes occurred. Appellant was wearing clothing similar to the descriptions of the perpetrator's clothing that were given by the victim and thevictim's neighbor. The victim noted that the perpetrator was wearing short pants. Both the victim and the neighbor described a dark or black jacket or shirt. The neighbor also described the perpetrator as wearing dark athletic shoes. Appellant, who was described on his driver's license as 5'9" and weighing 140 pounds, was similar in size to the perpetrator, who was described by the neighbor as 5'6" or 5'7" with a slender build.

A white cigarette lighter scarred with bite marks was found at the crime scene and was identified by an acquaintance of appellant as the lighter he loaned to appellant around 3:00 or 4:00 p.m. on May 15, 1998. Appellant also told a police sergeant that he had been loaned a white cigarette lighter by that acquaintance but had lost it. Another witness who had been in the company of appellant on May 15, 1998, identified a screwdriver found at the scene as one of his, and he testified that appellant had access to the screwdriver that evening. According to a witness from the state crime laboratory, three pubic hairs found at the crime scene were microscopically similar to appellant's pubic hairs. Appellant's clothing was confiscated by the police while he was in custody and sent to the state crime laboratory. According to another witness from the state crime laboratory, a blue nylon fiber microscopically similar to fibers used in the construction of the victim's nightgown was recovered from appellant's shirt; a black nylon fiber microscopically similar to fibers used in the construction of appellant's jacket was found on a sheet from the victim's bed; and a brown polyester fiber microscopically similar to fibers used in the construction of appellant's underwear was found on the sheet. In view of the evidence presented, there was substantial evidence to support the convictions for rape and residential burglary.

Appellant next argues that the trial court erred in refusing to suppress the statement he gave to a police officer and the fruit of that confession because the statement was made without a voluntary and knowing waiver of his Miranda rights. After his arrest for public intoxication, appellant was interviewed by the chief of police at 4:35 a.m. on May 16, 1998. He was read his Miranda rights, which included the warning that anything he said could and would be used against him in a court of law. Appellant acknowledged that he understood his rights. Appellant was again read his Miranda rights when the chief of police conducted a second interview at 5:15 a.m. Appellant was told he was a suspect in a rape, and he agreed to give the police hair samples and specimens. The chief of police testified that while appellant had a strong odor of alcoholic beverage about his person, he neither appeared to be hindered nor did he exhibit any behavior that suggested that he might not understand his rights. Although appellant was twice advised of his Miranda rights, he never asked for an attorney, refused to answer a question, or asked to terminate the interview.

At 11:10 p.m., as appellant was bonding out of jail and having his personal property returned, a sergeant with the sheriff's office who knew appellant had been read his Miranda rights and knew that a white lighter had been found at the crime scene, asked appellant if he also had some cigarettes and a lighter, or had he quit smoking. As the sergeant pretended to look for the items, appellant admitted that he had a white lighter that he had borrowed from an acquaintance whom he named, but that he may have since lost it. That acquaintance was subsequently questioned about the lighter and identified the lighter found at the crime scene as the one he loaned to appellant. The sergeant did not tell appellant that his questionswere being asked to gain information about the rape and that this was, in fact, part of an interrogation and that appellant had the right not to answer any questions. The sergeant also noted that he had read appellant his Miranda rights several times in the past.

In reviewing the issue raised by appellant, we address whether he voluntarily, knowingly, and intelligently waived his constitutional privilege. See Colorado v. Spring, 479 U.S. 564, 573 (1987). In doing so, we examine whether the relinquishment of the right was the product of a free and deliberate choice and whether the waiver was made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it. See id.(quoting Moran v. Burbine, 475 U.S. 412 (1986)). If the totality of the circumstances reveals an uncoerced choice and requisite level of comprehension, then a court may conclude that a defendant waived his Miranda rights. Id.

Appellant argues that he did not know that the police were attempting to elicit an incriminating response from him regarding the rape, and, thus, he was not fully aware that he was abandoning his rights or knew the consequences of his decision to abandon the right. As the United States Supreme Court has noted, "The Constitution does not require that a criminal suspect know and understand every possible consequence of a waiver of the Fifth Amendment privilege." Colorado v. Spring, 479 U.S. at 574. Further, "[t]he Miranda warnings ensure that a waiver of these rights is knowing and intelligent by requiring that the suspect be fully advised of this constitutional privilege, including the critical advice that whatever he chooses to say may be used as evidence against him." Id. Appellant was read his Miranda rights when he was arrested and twice more during the two interrogations. When he was read his Miranda rights, he was told that anything he said could and would be used against him in a court of law. Appellant agreed that he understood his rights. Appellant did not exhibit any behavior that suggested that he might not understand his rights. Appellant was familiar with his Miranda rights, having been read them several times before. A view of the totality of the circumstances supports the conclusion that appellant understood his Miranda rights and understood the consequences of waiving those rights. Consequently, appellant's waiver was knowing and intelligent.

Appellant further describes the sergeant's method of questioning him as trickery and deception. However, "mere silence by law enforcement officials as to the subject matter of an interrogation" is not "`trickery' sufficient to invalidate a suspect's waiver of Miranda rights..." Colorado v. Spring, 479 U.S. at 576. Likewise, we conclude that the sergeant's failure to announce to appellant that he was being questioned about the rape and burglary did not amount to trickery. As in Colorado v. Spring, "the additional information could affect only the wisdom of a Miranda waiver, not its essentially voluntary and knowing nature." Id. at 577. Consequently, appellant's waiver of his Miranda rights was voluntary.

After the jury was sworn in, appellant asked the trial court to exclude the test results from the hair comparisons, stating that the State presented appellant with the test results three days before trial and, therefore, appellant had not had sufficient time to inspect the evidence or the crime laboratory reports and thus was unable to challenge the evidence through the use of his own experts. Appellant also sought to exclude from the evidence the white lighter and screwdriver found at the crime scene, because, although the items weredisclosed to appellant, the items were not produced until the morning of the trial. Appellant's counsel further stated that he did not want a continuance because appellant had been in jail for over a year and did not want to delay the trial any further.

In response, the State noted that appellant was aware of the screwdriver and lighter and observed that appellant could have examined both items prior to trial. The State further noted that the hair comparison test results were disclosed to appellant four days before the June 14, 1999, trial, and that if additional time was needed by appellant to examine the results or to obtain an additional expert, then a request for a continuance was the proper remedy. The trial court noted that a hearing was previously held regarding the lighter and screwdriver (the hearing held on January 4, 1999, to suppress appellant's statement to police and to suppress the two items as the fruit of the confession) and consequently denied the motion. The court denied appellant's motion to suppress the hair comparison test results but granted appellant an opportunity to speak with the State's expert witness prior to the witnesses testifying. Appellant's counsel admitted that he had visited the state crime laboratory and had spoken to the witness who performed the fiber comparison on June 9, but that he had not spoken to the witness who performed the hair comparison and that the report on the hair comparison was not back at that time.

On appeal, appellant argues that the court erred in denying his motion to suppress the lighter and screwdriver. Appellant, however, was aware of the existence of both the lighter and screwdriver well before trial. Appellant cannot use the discovery rules as a substitute for his own investigation. See Irvin v. State, 28 Ark. App. 6, 771 S.W.2d 26 (1989). Appellant further argues on appeal that the fiber comparison test results should be suppressed. However, in his discussion with the court on these matters, and despite his mischaracterization in his abstract of the statements made by counsel during the discussion, appellant asked only for suppression of the hair comparison results, not the fiber comparison test results. Appellant's failure to object below precludes appellate review of his argument on appeal. See, e.g., Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). In any event, appellant specifically stated that he did not want a continuance. When the State violates the pretrial-discovery rule, the trial court has the following four options under Ark. R. Crim. P. 19.7: (1) The evidence may be excluded; (2) discovery or inspection may be ordered; (3) a continuance can be granted; or (4) an appropriate order may be entered depending upon the circumstances. See Johnson v. State, 325 Ark. 197, 926 S.W.2d 837 (1996). Appellant could have requested a continuance. Given his outright refusal to pursue that remedy, we affirm on this point. See Clark v. State, 323 Ark. 211, 913 S.W.2d 297 (1996)(affirming where appellant did not request a continuance).

Finally, appellant argues that the trial court erred in ordering his sentences to run consecutively because in imposing consecutive sentences, the court failed to exercise its own discretion and instead exercised the discretion of the jury. Whether sentences should run consecutively or concurrently lies solely within the province of the trial court, and we will remand for resentencing when the trial court does not exercise its discretion. See Teague v. State, 328 Ark. 724, 946 S.W.2d 670 (1997). Appellant, however, did not object to the trial court's sentence, and, thus, the issue is not preserved for appellate review. SeeBrown v. State, 326 Ark. 56, 931 S.W.2d 80 (1996)(affirming where appellant failed to argue at trial that the trial court did not exercise its discretion when it ordered sentences to run consecutively).

Affirmed.

Pittman and Meads, JJ., agree.