Johnson v. State

215 S.W.3d 668

Carl Allen JOHNSON, Appellant, v. STATE of Arkansas, Appellee.

No. CR 05-45.

Supreme Court of Arkansas.

October 13, 2005.

Cullen & Co., PLLC, by: Tim Cullen, Little Rock, for appellant.

Mike Beebe, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., Little Rock, for appellee.

TOM GLAZE, Justice.

Appellant Carl Johnson was convicted of second-degree murder in the killing of Mark "Calvin" Cahoon on March 15, 2002. Johnson's co-defendant, Rebecca Woolbright, was convicted of first-degree murder. On appeal, this court affirmed Woolbright's conviction and sentence, but reversed Johnson's conviction on the grounds that his constitutional rights had been violated when officers failed to inform Johnson that he had the right to refuse to consent to the officers' request to search the hotel room in which Johnson resided at the time. See Woolbright v. State, 357 Ark. 63, 160 S.W.3d 315 (2004).

In the Woolbright opinion, this court noted that, after the officers' illegal entry, the following transpired:

Detective Reese searched the room and seized a pair of jeans. . . . With Mr. Johnson's consent, Detective Sutton seized a pocket knife. . . .

At the police station, Mr. Johnson was taken to a work cubicle for questioning. Detective Reese noticed that his wristwatch appeared to have a red stain on it and [he] seized it. Another officer later seized Mr. Johnson's boots [and other items of clothing]. Thereafter, Ms. Woolbright came to the police station and gave a statement implicating Mr. Johnson in the murder. At this point, Mr. Johnson was taken into custody and placed under arrest. Officer Daniel Grubbs secured Mr. Johnson while the other officers went . . . to search for the victim's body. During a routine pat-down search, the officer seized a set of keys.

Id. at 79, 160 S.W.3d 315. The Woolbright court continued as follows:

We have recently addressed the propriety of the "knock-and-talk" procedure under the protections of the Arkansas Constitution. See State v. Brown, 356 Ark. 460, 156 S.W.3d 722 (2004). In that case, we held that a home dweller must be advised of his or her right to refuse consent in order to validate a consensual search under the Arkansas Constitution. Id. It is undisputed that none of the officers informed Mr. Johnson that he had the right to refuse consent to the entry and subsequent search of his home. Accordingly, we must reverse and remand for the suppression of all evidence that flowed from this unconstitutional search.

Id. at 80, 160 S.W.3d 315 (emphasis added).

Upon remand, Johnson again filed a motion to suppress the evidence. In his motion, Johnson cited portions of Justice Thornton's dissenting opinion in Woolbright, in which Justice Thornton referred to "the items that were seized" as being "a pair of jeans, a pocket knife, Johnson's statement to the police, a wristwatch with a blood stain, boots, and a set of keys." Id. at 86, 160 S.W.3d 315. Relying on this dissent, Johnson asked the trial court to suppress the tangible items listed in the dissenting opinion, along with a ball cap and shirt he had been wearing.

The trial court held a hearing on Johnson's motion. Johnson argued that the law-of-the-case doctrine prevented the trial court from hearing additional evidence on his motion to suppress. The trial court agreed that the jeans and the knife that had been seized from the hotel room had to be excluded; however, the court noted that it had to determine whether the watch, keys, boots, and clothes flowed from the search at the hotel. After hearing testimony from the officers who conducted the search and investigation of Johnson the night of the Cahoon murder, the court ruled that the watch and keys should be suppressed, but the boots and other items of clothing that Johnson had been wearing would be admitted.

Following the trial court's denial of his suppression motion, Johnson entered a conditional plea of guilty to second-degree murder pursuant to Ark. R.Crim. P. 24.3(b), and the trial court sentenced him to twenty years' imprisonment. Johnson has pursued an interlocutory appeal from the trial court's ruling; on appeal, he argues that the law-of-the-case doctrine should have precluded the trial court from holding a hearing on his motion to suppress, and that the trial court erred in denying his motion.

On appeal, Johnson first contends that the law-of-the-case doctrine barred the trial court from holding an evidentiary hearing on remand. He asserts that the trial court "was under instruction from the supreme court to suppress all of the evidence obtained pursuant to the search." Because this court had previously determined the illegality of the search, he claims, the trial court was without jurisdiction to reconsider the suppression issue.

The doctrine of law of the case ordinarily arises in the case of a second appeal and requires that matters decided in the first appeal be considered concluded. Cloird v. State, 352 Ark. 190, 99 S.W.3d 419 (2003); Camargo v. State, 337 Ark. 105, 987 S.W.2d 680 (1999). Thus, the doctrine dictates that a decision made in a prior appeal may not be revisited in a subsequent appeal. Green v. State, 343 Ark. 244, 33 S.W.3d 485 (2000). However, matters that have not been decided, explicitly or implicitly, do not become law of the case merely because they could have been decided. Camargo, supra.

In his appeal, Johnson argues that, because this court held that the search of his home was illegal and that the trial court erred in not suppressing all the evidence, the lower court was without authority to hold a second evidentiary hearing and reconsider the arguments of the State regarding the suppression of evidence resulting from the illegal search. He asserts that this court unequivocally held that the police officers' actions were unconstitutional and ordered the trial court to suppress the evidence as a result; this was not an issue left open for the trial court to revisit.

Foreman v. State, 328 Ark. 583, 945 S.W.2d 926 (1997) (Foreman II), is instructive on this question. There, this court considered a law-of-the-case issue in conjunction with a motion to suppress. Foreman had been convicted of first-degree murder; on appeal, this court reversed his conviction and remanded the case, holding that the trial court had erred in admitting Foreman's statement to police because the State failed to produce a material witness at the Denno hearing held before the first trial, and thereby failed to sustain its burden of proof as to the voluntariness of the statement. See Foreman v. State, 321 Ark. 167, 901 S.W.2d 802 (1995) (Foreman I). This court reversed and remanded, and its mandate provided that the case was to be returned to the trial court "for further proceedings to be had therein according to law, and not inconsistent with the opinion herein delivered." Foreman II, 328 Ark. at 590, 945 S.W.2d 926.

Upon remand, the trial court held an additional Denno hearing prior to the second trial and permitted the State to present the testimony of the material witness who had not testified prior to the first trial. Following that hearing, the trial court ruled that Foreman's statement was voluntary and admitted it into evidence. Id. On appeal in Foreman II, Foreman argued that the statement was admitted in the second trial in violation of the law-of-the-case doctrine. Id. at 591, 945 S.W.2d 926.

This court disagreed, rejecting Foreman's argument because it was "clear that we did not determine in Foreman I that his custodial statement was involuntary or inadmissible." Id. at 592, 945 S.W.2d 926. The court continued as follows:

We made no pronouncement in Foreman I with respect to the voluntariness of the statement. Rather, we held only that the State failed to carry its burden of proving the statement was voluntarily given, and that the statement therefore should not have been admitted at trial. Our mandate permitted the trial court to conduct further proceedings consistent with our opinion in Foreman I, and the decision to hold a second Denno hearing was in accordance with our mandate.

Id.

Similarly, in the present case, our earlier opinion and mandate left open the question of what items flowed from the illegal search. The mandate in the instant case provided that Johnson's conviction was "reversed and remanded in part for the reasons set out in the attached opinion." In turn, as discussed above, the "attached opinion" remanded the case for suppression of "all evidence that flowed from [the] unconstitutional search." This court did not, contrary to Johnson's argument, hold that every item of evidence had to be suppressed, nor did the court specify which items were to be suppressed.¹ Rather, the clear implication of this court's remand was for the trial court to determine for itself which items of evidence flowed from the illegal search. Clearly, the trial court's decision to conduct a second hearing regarding the admissibility of the evidence seized from Johnson's hotel room was in accordance with our mandate. As such, Johnson's argument that the trial court had no jurisdiction to hold another suppression hearing is without merit.²

In his second point on appeal, Johnson argues that the trial court erroneously failed to suppress all evidence obtained as a result of the knock-and-talk search. Specifically, he maintains that the trial court erred in refusing to suppress his boots, clothing, and the testimony of State criminologists regarding the results of tests run on these items.

In an appeal from the denial of a motion to suppress, this court conducts a de novo review based on 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).

At the outset of the suppression hearing, the trial court agreed that...