George Arthur Bunn v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

GEORGE ARTHUR BUNN,

APPELLANT

v.

STATE OF ARKANSAS,

APPELLEE

CACR03-280

MARCH 3, 2004

APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT,

NO. CR02-1064-2,

HON. KIM SMITH, JUDGE

AFFIRMED

Sam Bird, Judge

Appellant George Arthur Bunn was convicted by a jury of two counts of being a felon in possession of a fireman. He was sentenced as a habitual offender to twenty years in the Arkansas Department of Correction. Bunn brings this appeal contending that the trial court erred when it denied his motion to suppress evidence. He also argues that the court erred when it allowed the introduction of a judgment and commitment order for enhancement purposes when the judgment clearly stated that Bunn acted pro se and did not voluntarily, knowingly and intelligently waive his right to counsel. We do not agree with either of his arguments; accordingly, we affirm.

Before the jury trial, Bunn filed a pretrial motion to suppress evidence that was seized from his room at a boarding house. At the hearing on the motion, Ron Hritz of the Springdale Police Department testified that he received a complaint on May 11, 2002, that Bunn was in the area with a gun. After he received the complaint, he learned from a police dispatcher that Bunn was on parole. Hritz, along with three other officers, attempted to make contact with Bunn. The officers went to the boarding house where Bunn was staying. One officer positioned himself outside the house, and the two other officers entered the house and followed Hritz up the stairs.

Hritz then knocked on Bunn's door for several minutes, and Bunn cracked the door "a little bit." Hritz asked if he could come inside the room and Bunn said "yes," moving out of the way for the officers to step inside. When Hritz stepped in the doorway, he noticed in plain view a shotgun and a pistol lying on the bed. Hritz stated that he never took more than one step across the "threshold" of the door. Hritz placed Bunn in handcuffs for safety reasons. Hritz then asked if he could search the room. The officers obtained the pistol and the shotgun, and Bunn informed the officers where the ammunition for the guns was located.

On cross-examination, Hritz stated that Bunn was highly intoxicated. He stated that after he entered the room and verified that the weapons were real, he placed Bunn under arrest. He admitted that Bunn had not given the officers permission to enter the boarding house, but rather just his room in the residence. He stated that the house had common areas, such as a living room and a TV area.

Michael Hendrix, a patrolman with the Springdale Police Department, testified at the suppression hearing that he was with the police officers on May 11 when they made contact with Mr. Arwood, who said that Bunn was pointing a gun at the back of a Mr. Smiley's head and threatening people at the boarding house. Hendrix testified that Mr. Arwood, a resident of the boarding house, was scared. He stated that when the officers arrived at the boarding house, Hritz knocked on the door and Mr. Smiley allowed the officers inside the house. Three of the officers proceeded up the stairs, and Hritz "banged" on the door for ten minutes before Bunn opened the door. Officer Hendrix testified that Hritz asked Bunn for consent to search, and the two of them found a shotgun and pistol lying on the bed in Bunn's room. Bunn informed the officers of additional ammunition and the officers searched the rest of the room. Hendrix stated that even though Bunn was intoxicated, he was able to give the officers instructions as to whereto find things. Hendrix stated that Bunn never gave consent to search the boarding house, but rather he consented to a search of just his room. However, Hendrix stated that a Mr. Smiley, who was at the house, allowed the officers to come inside.

Mike Silk, a parole officer for the State, testified that as part of the terms of Bunn's parole, he must submit to a search of his person, place of residence and motor vehicle, with or without a search warrant, whenever requested by any Department of Community Punishment Officer. Silk stated that he was contacted by the officers on May 11, 2001, concerning Bunn and was told that they did not need him.

Bunn testified at the suppression hearing that on May 11, 2001, he was living at 707 Meadow Street, which is considered a boarding house. He stated that the house has a front porch with a screen door that is usually locked. Bunn also named the house's several common areas. He stated that he had just come home on the evening of May 11 and had gone to the restroom when Sergeant Hritz met him at the top of the stairs. Bunn stated that after Hritz asked him to identify himself, he gave the officers his name, and that the officers then placed him under arrest for assault and placed him in handcuffs. Bunn stated that the officers denied his request to call his attorney or his parole officer. Bunn stated that he did not consent to a search of his room. Bunn also stated that after his room was searched, he was placed under arrest. He admitted to drinking several beers over several hours, but stated that he was in complete control.

The court denied Bunn's motion to suppress the evidence resulting from the search of his room. A jury trial was held and the jury returned a verdict of guilty on two counts of being a felon in possession of a firearm. Following the guilt phase and after the jury retired to deliberate, the State provided the court a copy of the judgment and commitment order establishing that Bunn had been found guilty of theft by receiving. The prosecution also presented evidence that Bunn had been convicted of two felonies in proceedings at which he was represented by counsel. Bunn had been convicted of robbery in Arkansas and of battery and resisting arrest in Maryland. The proof of these convictions reflected that Bunn was represented by counsel in those proceedings. Bunn objected to the introduction of the theft-by-receiving conviction, stating that he had represented himself and had not voluntarily, knowingly and intelligently waived his right to counsel. The court allowed the judgment to be used in sentencing Bunn, and he was sentenced as a habitual offender to twenty years in the Arkansas Department of Correction. This appeal followed.

For his first point on appeal, Bunn contends that the officers' entries into the boarding house and his room were illegal because the State did not prove by clear, positive and unequivocal proof that consent was given. Bunn argued below that he did not give consent to the officers and, on appeal, he implies that the consent was not freely given because he was in handcuffs. Bunn contends that the police officers' illegal entry into the boarding house and his room within the house renders the State's reliance on the plain-view exception irrelevant. He argues that the State had the burden of proving that a third-party consented to the entry of the boarding house and that Bunn consented to the search of his room. He argues that, even upon a finding that the officers' testimony was credible that Bunn offered consent, he consented to the search only because he was coerced by the officers holding guns and ordering him out of the room and handcuffing him.

When we review a motion to suppress, we conduct a de novo review based upon the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court. Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003). It is a basic principle of the Fourth Amendment to the United States Constitution that searches and seizures inside a home without a warrant are presumptively unreasonable. Id. (citing Payton v. New York, 445 U.S. 573 (1980)). The burden is on the State to prove that the warrantless activity is reasonable. Id. The presumption of unreasonableness may be overcome if the law-enforcement officer obtained consent to conduct a warrantless search. Id. When an appeal involves a challenge to the legality of a warrantless search and seizure, the State has the burden of establishing an exception to the warrant requirement. Fultz v. State, 333 Ark. 586, 972 S.W.2d 222 (1998). Consent to an invasion of privacy must be proved by clear and positive testimony, and this burden is not met by showing only acquiescence to a claim of lawful authority. Holmes v. State, supra. When police officers are legitimately at a location and acting without a search warrant, they may seize an object in plain view if they have probable cause to believe that the object is either evidence of a crime, fruit of a crime, or an instrumentality of a crime. Fultz v. State, supra (citing Arizona v. Hicks, 480 U.S. 321 (1987)).

The court found that the issue of whether the police officers were given valid consent to enter the boarding house and to search Bunn's room was a credibility determination. The court found that because Arwood and Smiley had requested the officers' assistance, and because an assault on Smiley had taken place, the officers were within their rights to enter the home. The court also found that Bunn had consented to a search of his room. Because testimony was presented that Arwood had granted the officers consent to enter the home, the officers' entrance in the boarding house was not unreasonable. Further, the court found credible the testimony that Bunn also consented to having his room searched. Considering the evidence before the trial court, we cannot say that the trial court's ruling that there was consent to enter the home and to search Bunn's room was against the preponderance of the evidence. See Humphrey v. State, 327 Ark. 753, 940 S.W.2d 860 (1997). In addition, Hritz testified that once inside the threshold of the doorway, the weapons were in plain view, lying on Bunn's bed. Once police officers are legitimately at a location and acting without a search warrant, they may seize an object in plain view if they have probable cause to believe that the object is either evidence of a crime, fruit of a crime, or an instrumentality of a crime. Fultz v. State, supra. Here, the officers had information that Bunn was on parole and they saw two weapons lying on Bunn's bed.

In addition, exigent circumstances existed that justified the officers' entry into the rooming house and Bunn's room. Humphrey v. State, supra. Exigent circumstances are those requiring immediate aid or action, and while there is no definite list of what constitutes exigent circumstances, several established examples include the risk of removal or destruction of evidence, danger to the lives of police officers or others, and the hot pursuit of a suspect. Id. Other potential exigent circumstances that allow a warrantless entry include the commission of a grave offense, belief that the suspect is armed, a clear showing of probable cause, strong reason to suspect that the suspect is in the premises being entered, the likelihood that the suspect will escape if not swiftly apprehended, and danger of the destruction of evidence. Gaylor v. State, 284 Ark. 215, 681 S.W.2d 348 (1984).

In the case at bar, the officers had received a report that Bunn was waving a gun around at the boarding house. The officers knew that Bunn was a convicted felon on parole. Also, there was testimony that Mr. Arwood had informed the officers that Bunn was holding a gun to Mr. Smiley's head and that Mr. Smiley was scared. Under these circumstances, we conclude that exigent circumstances existed that would justify a warrantless entry into the boarding house and into Bunn's room at the house. Therefore, the trial court's ruling in denying Bunn's motion to suppress was not against the preponderance of the evidence.

For Bunn's second point on appeal, he contends that the trial court erred by allowing the introduction of a judgment and commitment order from Bunn's theft-by-receiving conviction for enhancement purposes under the habitual offender statute. The judgment clearly stated the Bunn was a pro se litigant who had not made a voluntary, knowing and intelligent waiver of his right to counsel. Following the guilt phase and while the jury deliberated, the State offered two prior felony convictions as proof that Bunn was subject to enhanced punishment as a habitual offender. The documents presented by the State showed Bunn to have been convicted in Arkansas of robbery and theft by receiving. The State responded to Bunn's objection by stating that it presumed that there was an error by the prosecution in filling out the judgment. The trial court allowed the judgment and commitment order into evidence even though the State did not present any additional evidence that he had been represented by counsel. The court stated that Bunn "has previously been convicted of two felonies and is classified as a habitual offender." Bunn argues that the court erred by allowing the theft-by-receiving conviction into evidence for sentencing purposes because substantial evidence is not satisfied by the presentation of a judgment and conviction that clearly reads that the defendant was a pro se litigant and did not make a waiver of his right to counsel. He asks this court to reduce his sentence.

After the guilt phase of a criminal trial, and if the defendant is found guilty of a felony, the trial court, out of the hearing of the jury, shall hear evidence of the defendant's previous felony convictions or previous findings of the defendant's guilt of felonies. Ark. Code Ann. § 5-4-502 (2) (Repl. 1997). The trial court shall determine the number or prior felony convictions, if any. Id. The defendant shall have the right to hear and controvert this evidence and to offer evidence in his support. Id. The trial court shall then instruct the jury as to the number of previous convictions and the statutory sentencing range. Ark. Code Ann. § 5-4-502 (3). The jury may be advised as to the nature of the previous convictions and the date and place thereof. Id. The jury shall retire again and then determine a sentence within the statutory range. Id. A previous conviction or finding of guilt of a felony may be proved by any evidence that satisfies the trial court beyond a reasonable doubt that the defendant was convicted or found guilty. Ark. Code Ann. § 5-4-504 (Repl. 1997). The State has the burden of proving prior convictions. Allen v. State, 294 Ark. 209, 742 S.W.2d 886 (1988). When evidence, in whatever form, of a prior conviction is offered that is silent as to representation of the defendant by counsel or his waiver of the right to assistance of counsel, the State must first lay a foundation for its admission by evidence tending to show that the defendant was, in fact, represented by counsel or that he had knowingly and intelligently waived his right to the assistance of counsel. Klimas v. State, 259 Ark. 301, 534 S.W.2d 202 (1976). Unless the records of prior convictions show that the defendant was represented by counsel, there is a presumption that the defendant was denied assistance of counsel, and the convictions cannot be used to enhance punishment under the habitual-offender provisions. Stewart v. State, 300 Ark. 147, 777 S.W.2d 844 (1989).

Although it was error for the court to allow evidence of Bunn's theft-by-receiving conviction in which he represented himself and did not knowingly and intelligently waive his right to counsel, it was harmless error. In addition to proof of Bunn's theft-by-receiving conviction, the prosecution presented evidence at sentencing that Bunn had been previously convicted of at least two felonies in proceedings at which he was represented by counsel. Bunn had been convicted of robbery in Arkansas and he had been convicted of battery and resisting arrest in Maryland. The proof of these convictions reflected that Bunn was represented by counsel in those proceedings. See McClish v. State, 331 Ark. 295, 962 S.W.2d 332 (1998). Moreover, when the trial court instructed the jury pertaining to Bunn's habitual-offender status, it stated that he had been convicted of two felonies, without identifying the felonies. Therefore, we hold that because evidence was presented that Bunn was a habitual offender who had been convicted previously of two felonies, the error committed by the trial court in introducing the judgment and conviction order for Bunn's theft-by-receiving conviction was harmless error.

Affirmed.

Stroud, C.J., and Vaught, J., agree.