Harvey v. State ( 1977 )

Elsijane T. Roy, Justice.

Appellant Berl Harvey was found guilty of possession of stolen property and sentenced to eleven years in the State penitentiary. He subsequently filed a motion for a new trial which was overruled.

On appeal appellant first urges that it was error for the trial court to overrule his pre-trial motion to suppress evidence obtained through a search of his home without a warrant. The trial court held appellant had voluntarily consented to the search.

The constitutional propriety of a search of one’s premises effectuated through consent alone, in the absence of any warrant, must be demonstrated from the total circumstances surrounding the giving of that consent. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). The burden is on the State to prove that consent was unequivocally and specifically given, and the State must make its showing of the sufficiency of the evidence supporting the consent to search by clear and positive proof. Hock v. State, 259 Ark. 67, 531 S.W. 2d 701 (1976).

In the instant case the sheriff testified he was accompanied by a police officer and two investigators, and they made a search of appellant’s premises. The uncontradicted evidence shows that the sheriff first made the identities of the parties known and then informed appellant they had come to pick up a chain saw which was allegedly part of the stolen property. Appellant, after first being advised that he did not have to consent to the search of the premises, signed a typed “Consent to Search” form. The form had been read to appellant by the sheriff and both appellant and his wife examined the form before it was signed. There was no evidence of duress, force or coercion on the part of the officers. Appellant voluntarily took the sheriff over the premises. Appellant then told the sheriff that most of the goods were in the trailer, and appellant unlocked the trailer with his key.

When these factors are viewed in their entirety we find the evidence is more than sufficient to support the trial court’s conclusion that the State sustained its burden of proving the voluntary nature of appellant’s consent by clear and positive evidence.

The second contention by appellant is that certain testimony by one of his witnesses was erroneously stricken from the record. The evidence excluded consisted of the testimony of Homer Bynum, a resident of Siloam Springs and long-time friend and business acquaintance of appellant, that appellant’s reputation for trüth and veracity in the community was good. However, on cross-examination he stated he was speaking from his own personal feelings, that he had not talked to any of appellant’s neighbors in Fayetteville, and that he did not have “the foggiest idea” of what went on there in connection with appellant.

In Henson v. State, 239 Ark. 727, 393 S.W. 2d 856 (1965), quoting 20 Am. Jur. 2d Evidence § 326,¹ we noted that character evidence “must relate and be confined to the general reputation which such person sustains in the community or neighborhood in which he lives or has lived.” The evidence developed at trial clearly established the character witness did not know appellant’s business or personal reputation in Fayetteville, the community in which appellant lived. Furthermore, it was not shown that appellant had established any reputation, business or otherwise, in Siloam Springs, the community in which the witness lived.

Although under certain circumstances the rule regarding reputation in the community may permissibly embrace a larger geographic area than the domicile of the accused, there was no such showing made here. Trial courts are vested with broad discretionary powers in determining whether a witness is competent to testify, and their decisions on the matter are not ordinarily reviewable on appeal unless so clearly in error as to constitute an abuse of that discretion. Williams v. State, 257 Ark. 8, 513 S.W. 2d 793 (1974), and Gordon v. State, 259 Ark. 134, 529 S.W. 2d 330 (1976). We find no abuse of discretion here.

Filially, appellant contends the trial court erred in overruling his motion for a new trial. The rule for segregating witnesses had been invoked pursuant to Ark. Stat. Ann. § 43-2021 (Repl. 1964). Appellant alleged the “spirit of the rule” had been violated by one of the witnesses who had been seen talking to a spectator at recess during the trial. At the hearing on the motion the most that was established was that the two were seen talking together. No clear or substantial evidence was presented as to the subject of their conversation.

We have always recognized the court’s wide latitude of discretion in granting or denying a motion for a new trial and hold that a judge’s action will not be reversed in the absence of an abuse of that discretion or manifest prejudice to the complaining party. Black v. State, 215 Ark. 618, 222 S.W. 2d 816 (1949); and Cross v. State, 242 Ark. 142, 412 S.W. 2d 279 (1967). Nothing appears in the record to warrant overturning the court’s refusal to grant a new trial.

Finding no reversible error, the judgment is affirmed.

Byrd and Hickman, JJ., dissent.

1 See 29 .Am. Jur. 2d Evidence § 347 (1967).