Appeal from Searcy Circuit Court, Joe D. Villines, Judge; reversed and remanded.
1. CRIMINAL LAW - EVIDENCE - ADMISSIBILITY OF TAPE-RECORDED CONVERSATION. - There is no merit to appellant's contention that the trial court erred in allowing into evidence the incriminating tape-recorded conversation which he had with the sheriff on the ground that it violated his Fifth and Sixth Amendment rights because he was not given his Miranda warnings, where the proof shows that the appellant was neither in custody nor deprived of his freedom while talking with the sheriff, but shows, in fact, that appellant wanted the sheriff as a confederate and at least considered him a confidant instead of a law enforcement officer.
2. WITNESSES - PRIOR INCONSISTENT STATEMENTS - PROCEDURE FOR EXAMINING. - The procedure for examining witnesses with respect to prior inconsistent statements is now controlled by the
The opinion of the court was delivered by: Conley Byrd, Justice.
This appeal comes from a judgment entered on a jury verdict finding appellant Robert Andrew Baysinger guilty of capital murder and fixing his punishment at life imprisonment without parole.
The record shows that Billy Joe Holder, the decedent, had been sheriff of Searcy County for a number of years. Loren Reeves ran against Holder for sheriff in 1972 but Holder won. Loren Reeves ran again in 1974 for sheriff and this time defeated Holder. Thereafter, Holder, over the objections of Reeves, was employed by the State as an enforcement agent with the Alcohol Beverage Control Board. Shortly before his death, Holder in his capacity as a law enforcement officer with the Alcohol Beverage Control Board had caused [261 Ark Page 607]
appellant and appellant's wife to be arrested for bootlegging. Appellant at the time told Reeves that appellant was going to kill Holder. Some week or two later appellant told Reeves that if Reeves would put $2000 in the pot, appellant would try to take care of everything. Following Holder's assassination on February 9, 1976, appellant told Reeves ". . . me, you, and the man that done it, and another woman are the only ones that can involve me. . . ." Reeves then quoted appellant as saying "you better damn sure keep your mouth shut." In June appellant met Reeves on the parking lot of the Sunset Motel where Reeves taped the conversation he had with appellant. Appellant there identified Norman Sutterfield as the trigger man and explained that he contacted him through the Kiddie Care Nursery in Conway, Arkansas. The State proved that long distance calls had been made from appellant's phone to the Kiddie Care Nursery. The proof showed that appellant had been seen in the vicinity on the day of the murder in a pickup truck matching the description of Sutterfield's truck. Other proof showed that appellant had caused to be withdrawn $17,697.27 from a savings account within a few weeks of the murder. Appellant had hunted other persons who were responsible for his bootlegging arrest for the purpose of whipping them.
POINT I. We can find no merit to appellant's contention that he was entitled to a directed verdict in his favor.
POINT II. Appellant here contends that the trial court erred in allowing into evidence the incriminating tape recorded conversation between him and Reeves. The first contention is that it violated his Fifth and Sixth Amendment rights because he was not given his Miranda warnings. We can find no merit to this contention. See Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977). The proof on the part of the State shows that appellant was neither in custody nor deprived of his freedom while talking with Reeves - in fact, the evidence shows that appellant wanted Reeves for a confederate and at least considered the sheriff a confidant instead of a law enforcement officer.
Neither do we find any merit to appellant's contention that the recorded conversation violated his Fourth Amendment [261 Ark Page 608]
POINT III. The contention that the trial court, after holding an Omnibus hearing, erred in failing to rule on appellant's motion to suppress prior to trial is not likely to arise upon a new trial.
POINT IV. The fourth contention is that the trial court erred in refusing to permit appellant to show that Reeves had made inconsistent statements.
On February 25, 1976, after interviewing Reeves, Officer Partlow made the following report, to-wit:
"On the morning of 2/25/76, at 11:45 a.m. in Room 28 of the Marshall Motel in the presence of Sgt. Duvall, Sgt. Young and Trooper Partlow, Loren Reeves was offered the opportunity to take a polygraph test and he had previously stated that he would take the test.
When he was told that Sgt. Young was ready to give him the test he became somewhat upset and refused to take the test. He went on to state that he had discussed this with the County Attorney, John Driver, and Driver told him to tell us we could take that box and shove it up our ass. He went on and said that he had nothing to hide but thought the reason for asking him to take the test was politically motivated by Will Goggin, Venson Jones, and Phil Womack.
He further stated that he was a good friend of Robert Baysinger's, he did hunting with Baysinger and considered him a pretty good fellow and didn't believe he would kill anyone."
At the June trial, Reeves testified that Baysinger had planned to kill Holder and that after the murder Baysinger told him "me, you, and the man that done it, and another woman are the only ones that can involve me, and you better damn sure keep your mouth shut." The appellant attempted [261 Ark Page 609]
to have Reeves' February statement put into evidence at the trial in order to impeach Reeves' credibility. But when the State's objection to it was sustained, the appellant made a ...