Gregory Davidson v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

LARRY D. VAUGHT, JUDGE

DIVISION III

GREGORY DAVIDSON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 01-779

May 8, 2002

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CR-2000-3489]

HON. JOHN LANGSTON,

CIRCUIT JUDGE

AFFIRMED

A Pulaski County jury convicted appellant of first-degree murder and sentenced him to a term of fifty years in the Arkansas Department of Correction. He argues on appeal that the trial court erred 1) by not granting his motion to suppress, 2) by excluding a prospective juror, and 3) by allowing improper comments during the sentencing phase of trial. We disagree and affirm.

On August 30, 2000, appellant attended a barbecue at the home of James Davis. One of the guests at the cookout was Corey Wilson. Appellant and Wilson got into an argument and during the argument shots were fired and property was damaged. After leaving the barbecue, Wilson reported the incident to his wife, Karen Wilson. He indicated to his wife that he intended to file an attempted murder warrant against appellant. Wilson's intentions were communicated to appellant, and appellant confronted Wilson the next day (August 31). Upon his arrival at the Wilson residence, appellant spotted Wilson conversing with several friends in the front yard. Appellant removed a gun from the back of his pants and shot Wilson in the head. Wilson stumbled into his home, and called his wife for help. However, the gun-shot wounds were fatal, and Wilson died at the hospital.

Eyewitnesses identified appellant as the gunman and a warrant was issued for his arrest. On September 26, 2000, appellant was taken to the Little Rock Police Department at 1:40 a.m. Ten minutes later, appellant was advised of his Miranda rights by Detective Steve Moore. Appellant signed the form stating that he understood the rights guaranteed him by Miranda. Although Moore also explained the waiver portion of the form, appellant refused to sign it. Appellant told Moore that he had consulted with a lawyer between the time of the shooting and his arrest, and had been advised to not talk to the police.

While in custody appellant was allowed to use the telephone, which was located in a large room containing desks for the detectives. Moore and two other detectives were in the room, talking among themselves while appellant was using the telephone. At the conclusion of his telephone conversation, appellant engaged Moore in conversation. Specifically, appellant began to tell Moore about his friendship with the victim. However, Moore advised appellant that he had invoked his Miranda rights and that they "couldn't do that." Appellant continued to discuss the events surrounding the murder. According to Moore, appellant "wanted to tell his side of the story." After several attempts to further inform appellant of his rights, Moore testified that he "just listened to what [appellant] had to say." Appellant was steadfast in his refusal to sign the waiver of his rights, but insisted that he wanted to explain his side of the story.

According to Moore, appellant explained to the officers that he had an altercation with the victim the day before the murder and had heard that the victim wanted to report the altercation to the police. Appellant admitted going to the victim's home the following evening. He admitted that

he fought with the victim after he arrived at the victim's home, but appellant insisted that the gun was produced by the victim and that it accidently discharged during the struggle.

In support of his first point on appeal, appellant argues that the trial court's failure to suppress the statement that he gave to police officers following his arrest amounts to reversible error. Specifically, appellant contends that he did not knowingly, voluntarily or intelligently waive his right to counsel because "[t]he officers should have reasonably suspected that [he] would continue to talk."

When this court reviews a trial court's ruling on a motion to suppress, we make an independent determination based upon the totality of the circumstances. Gilbert v. State, 341 Ark. 601, 19 S.W.3d 595 (2000); Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999). We will reverse a trial court's ruling on a motion to suppress only if the ruling was clearly erroneous or clearly against the preponderance of the evidence. Id. Because the determination of a preponderance of the evidence turns on questions of credibility and the weight to be given testimony, we defer to the trial judge's superior position in this regard. Lemons v. State, 310 Ark. 381, 836 S.W.2d 861 (1992).

It is the State's burden to show that a defendant's statement was made after a voluntary, knowing and intelligent waiver of his rights. Steggall v. State, 340 Ark. 184, 8 S.W.3d 538 (2000). The test is whether the appellant was effectively warned of his rights and knowingly and willingly waived them. Id. If the accused initiates further communications, exchanges or conversations with police officers after invoking his rights, any resulting statement may be admissible. Lacy v. State, 345 Ark. 63, 44 S.W.3d 296 (2001).

Here, appellant was advised of his Miranda rights, and signed a form indicating that he understood them. He then invoked his rights, which further demonstrated his understanding of the Miranda protections. After invoking his rights, appellant was permitted to use the telephone in anon-coercive environment and he then, according to Detective Moore's uncontradicted testimony, decided to waive his rights and to offer his side of the story to the officers. Therefore, the trial court properly denied appellant's motion to suppress.

Next, appellant argues that the trial court erroneously denied his Batson challenge to the State's peremptory strike of venire person Bertha Kinchen. During voir dire, Ms. Kinchen divulged that her son had pled guilty to sexual abuse in California and had served a two-year prison sentence as a result of his plea. Appellant objected to the State's exercise of a peremptory challenge against Ms. Kinchen, pursuant to Batson v. Kentucky, 476 U.S. 79 (1986).

When a party makes a Batson challenge, a three-step process must occur. First, the trial court must determine if there is a prima facie case of discrimination shown by a jury-selection process or pattern designed to exclude jurors because of their race. MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998). Second, if the court determines that there is a prima facie case of discrimination, the proponent of the strike must offer a racially-neutral explanation for the strike. Id. Finally, if a race-neutral reason is given, the strike's opponent must persuade the trial court that the expressed motive of the striking party is not genuine, but rather, is the product of discriminatory intent. Id. The trial court then must weigh and assess what has been presented and decide whether the proponent's explanation is pretextual. Id.

Here, appellant only contested one of the State's strikes. Thus, he is charged with the difficult task of establishing "a pattern" of discrimination based upon a singular event. At the conclusion of voir dire, two jurors and the alternate juror were African-American. Additionally, the State had six peremptory challenges remaining. The State presented a race-neutral explanation for its exclusion of Ms. Kinchen. Appellant offered no evidence that the State's proffered explanationfor striking Ms. Kinchen was pretextual. Therefore, the trial court properly overruled appellant's Batson objection.

In his third point on appeal, appellant argues that the State was allowed to make an improper comment during the sentencing phase of the trial and that the trial court's admonishment was insufficient to cure the resulting prejudice.

Appellant was charged with capital murder, but was sentenced to the lesser-included offense of first-degree murder. During the State's closing argument in the penalty phase of the trial, the deputy prosecutor urged the jury to return a sentence of life imprisonment, because if appellant were to receive a term of years he would be eligible for parole. Addressing the jury, the prosecutor stated that the appellant had "fooled us once again by convincing y'all to reduce this from capital murder to murder in the first degree." Appellant objected on the basis that the State was chastising the jury for its verdict. The trial court agreed and, at appellant's request, admonished the jury to disregard the prosecutor's improper statement. Appellant did not ask for a mistrial or request any further relief.

When a trial court gives an admonishment at appellant's request, appellant cannot complain on appeal; he has received all of the relief he asked for at trial. Puckett v. State, 324 Ark. 81, 918 S.W.2d 707 (1996). Moreover, appellant argues for the first time on appeal that the admonishment was insufficient to cure the error. It was the appellant's duty to inform the trial court of the perceived insufficiency of the censure and obtain a ruling on the matter from the trial court. Edwards v. State, 315 Ark. 126, 864 S.W.2d 866 (1993). Because appellant failed to obtain such a ruling, the matter is not properly before this court. Id.

Affirmed.

Griffen and Baker, JJ., agree.