Victor Medlock, Jr. v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

DIVISION II

VICTOR MEDLOCK, JR.

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 00-209

MARCH 14, 2001

APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT

[NO. CR 98-811, CR 98-812, CR 98-813]

HONORABLE JACK HOLT,

SPECIAL CIRCUIT JUDGE

AFFIRMED

A jury sitting in the Sebastian County Circuit Court convicted the appellant, Victor Medlock, of aggravated robbery and sexual abuse in the first degree and sentenced him to ninety years in the Arkansas Department of Correction. On appeal, he presents three challenges: (1) the trial court erred by allowing the State to exercise a peremptory challenge on an African-American juror; (2) the trial judge prejudiced appellant in setting a high amount for his bond; and (3) the trial court erred in denying his motion to suppress. We find no error and affirm.

On September 16, 1998, appellant was arraigned on charges of aggravated robbery and sexual abuse, and the trial judge set appellant's bond at $750,000 on both charges. On June 21, 1999, and June 28, 1999, the trial court held a suppression hearing. After hearing testimony, the trial court denied the motion to suppress.

At trial, the victim testified that on September 6, 1998, she awoke in her bed with a man covering her mouth. The victim also testified that she felt a hard object on her forehead. The intruder told the victim that he wanted jewelry and money. The intruder ordered the victim to put a pillowcase over her head while he searched her room. Although the victim did not directly see the intruder's face, the victim saw the intruder's reflection in the television set and noticed his hat, shoes, pants, and a tattoo on his wrist. The victim testified that the intruder put his mouth on her vagina. When the victim told the intruder that she was a virgin, the intruder stopped and apologized.

First, appellant claims that the State improperly used a peremptory challenge to exclude an African-American from the jury in violation of the Equal Protection Clause of the Fourteenth Amendment as construed in Batson v. Kentucky, 476 U.S. 79 (1986). In Purkett v. Elem, 514 U.S. 765 (1995) (per curiam), the United States Supreme Court held that the following three-step analysis should be applied when analyzing a Batson challenge. First, the party objecting to the use of the peremptory challenge must make a prima facie case of racial discrimination. Id. Second, the burden of production, not persuasion, shifts to the striking party to come forward with a race-neutral explanation for removing the juror. Id. At this stage the explanation does not have to be persuasive, or even plausible. Id. Finally, during the third step, the opponent of the strike bears the ultimate burden of persuading the trial judge that the race-neutral reason offered by the striking party is merely a pretext for purposeful discrimination. Id.

The trial court is in a superior position to make these determinations because it hasthe opportunity to observe the parties and determine their credibility. Sanford v. State, 331 Ark. 334, 962 S.W.2d 335 (1998). Accordingly, we will reverse a trial court's ruling on a Batson challenge only when its findings are clearly against the preponderance of the evidence. Green v. State, 330 Ark. 458, 956 S.W.2d 849 (1997).

When appellant challenged the use of a peremptory challenge to strike Vernita Keeton, the prosecuting attorney responded by telling the court that Ms. Keeton had stated that she could not convict a person based on the testimony of only one witness, and that she had demonstrated a reluctance to consider the full range of punishment for aggravated robbery. The prosecutor also noted that Ms. Keeton had been excused in a prior case because she had stated that she could not be fair because she had already made up her mind. These are all race-neutral explanations for exercising the peremptory strike. Appellant's response, pursuant to the third Purkett factor, was that Ms. Keeton said that she could be fair. While that may have been a relevant response to a challenge for cause, it does not demonstrate that the prosecuting attorney acted in a discriminatory manner in exercising a peremptory strike.

As previously mentioned, the trial court was in a superior position to observe the credibility of the jurors and the attorneys during the challenges to each juror. The State provided three race-neutral reasons for peremptorily striking Ms. Keeton, and appellant's response did not persuade the trial court that the prosecutor acted in a discriminatory manner. The court concluded that the State's race-neutral explanations for striking Ms. Keeton were not a pretext for purposeful discrimination. Because we cannot say that the trial court'sruling was clearly against the preponderance of the evidence, we affirm the court's decision to allow the State to strike Ms. Keeton.

For appellant's second point on appeal, he maintains that he was prejudiced by the trial judge who presided at the arraignment when the judge set a bond that appellant considered too high. At the arraignment, Judge Hewett set a bond of $750,000. Appellant made no objection to the bond at the time of the arraignment. Neither did he raise the issue with the trial court by alleging that he was being prejudiced by the bond as he does now on appeal. To preserve an argument for appellate review, a defendant must make an objection to the trial court that will apprise the court of the particular error alleged. Hinkston v. State, 340 Ark. 530, 10 S.W.3d 906 (2000). This court will not consider arguments raised for the first time on appeal. Id. Because appellant failed to make an objection to the trial court related to this issue, appellant's argument is not preserved for appellate review.

For appellant's third and final point on appeal, he argues that the trial judge erred in denying his motion to suppress evidence, which included a statement appellant gave to the police and evidence found in his bedroom. When reviewing the denial of a motion to suppress, this court makes an independent examination based upon the totality of the circumstances and reverses only if the decision is clearly against the preponderance of the evidence. Muhammad v. State, 337 Ark. 291, 988 S.W.2d 17 (1999). The facts and evidence are reviewed in the light most favorable to the State. Id. The appellate courts will reverse only if the decision to deny the motion to suppress was clearly against the preponderance of the evidence. Id.

Fort Smith Police officers arrived at appellant's house, and appellant invited them in. As they stepped into the living room, the officers noticed that a young boy was present and asked if there was a place where they could speak privately. Appellant suggested that they go into his bedroom. Once in the bedroom, one of the officers noticed that appellant was trying to hide something, and the policeman asked for consent to search the bedroom. Appellant agreed and signed a consent form. While they were conducting the search, the officers received information that appellant's fingerprints matched prints found at the crime scene. Appellant was then placed under arrest. Before being taken out of the room, appellant asked one of the officers to get something from a pocket of a pair of pants that was in the room. The officer agreed and found a ring with the victim's name on it in the pocket.

Appellant asserts that the police violated his Fourth Amendment rights by conducting an illegal search of his house. A warrantless search made with consent does not violate the Fourth Amendment. Blackwell v. State, 338 Ark. 671, 1 S.W.3d 339 (1999). The test for a valid consent to search is that the consent must be voluntary, and voluntariness is a question of fact to be determined from all of the circumstances. Miller v. State, 342 Ark. 213, 27 S.W.3d 427 (2000). When we view the evidence in the light most favorable to the State, we recognize that appellant invited the police into his house, took the police to his bedroom, and gave the police consent to search. In light of these facts, we do not believe that the trial court's decision was clearly against the preponderance of the evidence.

Appellant also contends that his statement to police was involuntary. Appellant specifically argues that his statement should have been suppressed because it was the "fruitof the poisonous tree" because the police illegally searched his home. Again, we do not believe that an illegal search occurred in this instance because appellant consented to the search in his home. Therefore, appellant's statement could not be the fruit of the poisonous tree.

Before making a statement, appellant was informed of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). Detective Joplin read appellant his rights from a form and appellant put his initials next to each right. Appellant told the officers that he had completed the twelfth grade and could read and write. Then, appellant signed the rights form at the bottom of the page.

The issue on appeal is whether appellant's confession was "the product of a free and deliberate choice rather than intimidation, coercion, or deception." Sanford, supra. The State carries the burden of showing that a custodial statement was voluntary. Johnson v. State, 71 Ark. App. 58, 25 S.W.3d 457 (2000). Here, appellant was apprised of his rights and signed a rights form indicating that he understood his rights. We find that the State satisfied its burden of showing that appellant gave a voluntary statement. Based on the totality of these circumstances, we cannot say that the trial court clearly erred when it found that appellant knowingly and intelligently waived his Miranda rights before he made his statement to the police.

Affirmed.

Griffen and Baker, JJ., agree.