Beed v. State

We say cannot the trial finding court’s appointed Mitchell’s counsel effective and that allegations in the motion post-conviction relief had failed against preponderance of the evidence. judgment is affirmed. BEED,

Bennie v. STATE of Arkansas Jr.

CR 79-229

Supreme Court of Arkansas Opinion delivered December Newman, Thomas appellant. R. for Clark, Gen., Steve Atty. Fewell, L. by: Atty. Victra Asst. Gen., for appellee. A. Chief Appellant Bennie Justice. Fogleman, John

Beed, Jr., rape, was found guilty aggravated robbery and (class C) kidnapping 12, 1979, jury trial on June rape, sentenced to for years life aggravated robbery for 10 years kidnapping. for Appellant 11 points lists for reversal. Some of them include multiple assertions of error. We find jury reversible error selection and in the failure of the trial suppress court to evidence aby obtained search. In addi- points, tion to these opinion only this we will treat those points likely that will arise on retrial.

Appellant, under the heading of a single point, challeng- ed the trial excusal judge’s of Buck Walker and F.R. Stewart cause, for his failure to excuse Richard Bolton cause of peremptory challenges by misuse exclude state to Negroes from jury service. Appellant says that Stewart and race, persons Walker were of the Negro and that two others of that were race excused state-by peremptory the challenge. record, however, does not disclose the race of the prospective jurors. however, Assuming, that appellant states the race of the jurors correctly, we find except no error as to juror discloses, far Bolton. As as this record the state’s exer- cise peremptory of challenges has not been shown to be

531 peremptorily that the state fact The mere systematic. not con jury panel does petit Negroes the on challenged all rights constitutional appellant’s that showing stitute 79; 144, 2d Brown State, Ark. S.W. v. 515 Rogers 257 violated. State, 50; Jackson v. 561, 2d S.W. 248 Ark. Swain v. Alabama, 380 U.S. 876; 331, 432 S.W. 2d not en (1965). Appellant was 2d L. Ed. S. Ct. any to raise position and is in no any juror particular titled to inter cause, he for because jurors the excused question as to 264 Ark. objection. Clark no posed Bolton for cause is another The excusal of Richard brief, it must con- out in its be points matter. As the state in juxtaposi- law and not itself as a matter of sidered in of on jurors. Appellant the excusal other relies tion with of 1977) provides that a (Repl. which Stat. Ann. § 43-1920 juror made where the may for be challenge implied bias prosécution was person complaint on whose related to 1979) (e) which (Supp. and Ark. Stat. Ann. § issued 39-105 any person prevented who is petit jury from service excludes points out impartially. He by any relationship acting from officer to whom police Bill juror that Bolton’s brother complaint, por- her original made complaining assailant, which, of her including description tion of County the Miller Phillips, of jury by Officer related to office, Officer jury that s who also testified before Sheriff had judge The trial also had taken the statement. Bolton informed, prospective dire examination of prior to voir Bill testimony hearings, Officer pretrial jurors, “picture conducting lineup” had assisted Bolton which containing photographs, one of a folder six presenting identification, par- the victim for appellant, in which house dwelling ticipated two searches and had in the trial used for evidence be appellant resided affidavit information contained developed a part There is a were based. which the searches the warrant the trial testimony Phillips during implication clear investigation him in the entire that Bolton assisted He also against appellant. in charges crimes which resulted “picture with the assisted Officer Bolton jury told 532

lineup.” defense case was mistaken iden- alibi tification. dire, it

On voir was that Richard disclosed Bolton of a crime and he had for the victim worked department years. sheriff s for This juror two stated that witness, should his brother be he would not be caused lean heavily more toward the state than toward the defendant and that would him embarrassing not be for to discuss if case with his friends and it jury he were on the should return guilty. a verdict of The trial judge asked Richard could, if embarrassment, he Bolton withott and let the serve speak truth. Appellant’s challenge verdict to this prospec- juror tive for cause was denied. Appellant points out that he had, time, at the peremptory exhausted his He challenges. required object exceptions was not or to save to the denial challenge appellate order to He obtain review. only required to make the aware court of the action he desired.

It is true question juror’s that the qualification lies judicial within the sound discretion judge of the trial and that appellant had the showing prospective burden of juror’s disqualification. State, 747, See S.W. Satterfield 171; Swindler 2d 264 Ark. 2d S.W. 120. This case, however, is unlike Gammelv. by cited the state. There challenge for actual Although

bias. Officer testify, reliability Bolton did not the identification of appellant by the attorney prosecuting and the propriety of the photographic lineup conducted Phililps major Bolton Officer issues in the case. Phillips testified on that, cross-examination though even there were males, hundreds of black did “we” not show any them, six, except the victim “we had because our suspect.” Bennie Beed really testified that he believed that matter something whole like a police conspiracy to get him rape, robbery tried for and kidnapping.

Although it was established examination of Richard Bolton he would not be embarrassed his brother’s case, with potential connection embarrassment of jurors other weighing evidence to have seems never literally If implied considered. the statute on is read bias technically, complaint it that was the was not Bolton’s prosecution. But we have basis for institution of not way. construed this section of the statute in that We have liberally insuring rather toward the con- construed right impartial jury of a defendant to a trial an stitutional 2, 10, by Art. See secured Constitution of Arkansas. § State, 1260, supra; Swindler v. Glover v. 248 Ark. Swindler, In trial we found abuse of the court’s 670. a sustaining challenge

discretion not a for cause to prospective juror employee was an the United who States only the victim a Marshall’s office because of the crime was city police We held that there an officer. also abuse of sustaining challenge discretion not a for cause to a member jury that panel company who worked for same employed years the victim’s father for and had expressed sympathy to the father. case,

Even in a civil we held that it an dis- abuse of the trial court refuse to excuse the wife of cretion for to witness, cause, in the fact that she said she would spite him Arkansas any not believe other witness case. above Highway Young, State Comm’n.v. 410 S.W. recognized disqualifies 120. There we the statute jurors attorney, reference party related to or his but made no polestar “justice ought witnesses. We followed the not to fair, only There appear but fair.” we stated the to be to be rule that where a close relative is a witness to a controverted in a brought issue case the matter is to the attention of sworn, it an discre- jury the trial court before the is abuse of a trial a relative for cause. The tion for court to refuse to strike in a polestar clearly brighter should be more visible one, (see than in a than Acklin criminal case civil rather less so (1980), 606 S.W. 2d an ac- particularly guarantee view of our constitutional impartial jury cused of trial Art. § however, testify; It did is true that Officer Bolton with reference to we of this officer when consider role the identifica- the search and investigation, initiation of him whose eliminate as one on procedure, we cannot tion say can we was instituted. Neither complaint prosecution dire were that Richard Bolton’s answers on voir sufficient relationship or prevented by eliminate him as one who was any than we could acting impartially, circumstancesfrom more Young. Young, In we said: do so

*** imagination say It that the does not stretch very presence jury relative on the of witness’ close necessary in a would tend to inhibit the frank discussion jury at an verdict—for what arriving impartial room for in- jury, banker merchant on the who was prudent the Highway clined to believe the witnesses for Commis- sion, Ragge’s would care to criticize Mrs. husband to her face?

How in juror could a freely this case criticize the identifica- procedures tion or even the search during jury deliberations?

Failure to sustain the challenge prejudicial error. The juror was one whom willing accept not after he had exhausted peremptory his challenges. When a defendant has used all peremptory challenges, before a prospective juror called, may he only challenge juror for cause and peremptorily, and it is reversible error to thereafter hold a juror competent. Snyder State, biased 151 Ark. S.W. 237 87.

Appellant attacked legality aof search of the dwell- ing house which Bennie Beed had residing with his mother at the time the offenses were alleged to have occurred by a suppress motion to an emerald ring seized there as ring evidence. The by was identified the victim as hers. The burden upon justify Where, the state to the search. as here, pursuant warrant, the search is to a the state must produce the warrant and it show that was issued com- pliance with the by law producing required written evidence relied upon magistrate as establishing probable cause for issuance warrant or following proper procedures for establishing the contents of warrant and supporting its evidence. Schneider v. (1980). 2d S.W. When this is

done, the burden showing invalidity the warrant its supporting upon the party moving sup- documents is press authority evidence seized under warrant. Schneider supra.

Although there were two search warrants issued two house, dwelling entries of the will only we concern ourselves with the second warrant and the search made in reliance iton ring during because the was seized that search. The search 27, 1979, April was made day the second warrant was by Municipal Judge Purifoy upon issued an affidavit Chief Deputy Sheriff Don Branch of Miller County. Appellant alleges that the search was unlawful it because was based upon unlawfully issued warrant. He asserts that the af- fidavit on which the warrant was issued failed to disclose how reliably unnamed informant was informed that the things searched, sought place to be with along other grounds not material here. in reliability

The affidavit was sufficient previous in that it that he had formant contained statement ly provided information that led to the arrest and conviction State v. burglary past. of two individuals for theft Lechner, The affidavit was not however, sufficient, failed to disclose how reliable ring property informant knew that the and the other described merely It the warrant were in the house to searched. was be recited that the informant had said Bennie Beed had resided being the time he premises during sought the described was property the these crimes and that the described was officers for hidden the house. The statement of this conclusion without in any underlying circumstances from which the statement of the showing arrived at was insufficient to meet test for formant 1, 552 v. 262 Ark. probable cause for the search. Lunsford 646; Lechner, State v. Denial of the motion to supra. suppress evidence was error. that denied the

Appellant complains his counsel was right of effective cross-examination court com- trial Appellant mented the evidence. contends that the on attorney judge prevented stopping Phillips giv- from from the at- ing hearsay testimony on cross-examination which question. torney non-responsive contended was to his We do agree not that the responsive attorney’s answer was not to the question: her you “Based on did description how conclude Mr. Beed to a suspect be this case?” After the officer stated had, that the officers on the description given based them victim, talked people to several received information through his investigation, appellant’s attorney interrupted and, answer which we take responsive to have been perhaps, explanation even admissible as reason they officers did what did. Van Cleave 268 Ark. (1980). S.W. 2d A cross-examiner li go censed on a fishing expedition accepting without hazards of such a procedure which include answers which would not be testimony. admissible as direct Arkansas State Highway Russell, 201; Comm’n Arkansas Highway Fowler, State Comm’n.v. 240 Ark.

S.W. 2d 1. alleged

Another instance of the improper restriction of during appellant’s attorney’s cross-examination occurred attempt impeach credibility of the identification of appellant by had, victim. The alleged cross- examination, possibility admitted there of mistake time, stranger only identification of total viewed short court, that appellant only man in the black and that she could have mistaken description as to the her officers, assailant she had given emphatically but stated assailant, positive she was that Beed her even if there were testimony that Beed was elsewhere when she was only way assaulted. The attorney’s that the next question interpreted question could be would have been from the question inflection of his voice. The the trial ruled judge argumentative and repetitive you was: “As far as are con- cerned. This man your resembles assailant enough close to be right 28-1001, one?” We see no Stat. Ann. error. § 1979) (a) (Repl. Rule 611 gives trial court reasonable control over the of interrogating mode witnesses so as avoid consumption protect needless of time and to from really undue This change harassment. does not latitude of trial discretion heretofore vested in such judge matters. attorney’s Another instance is the cross-examination of prosecuting appellant’s evidence of intent. witness about objected speculative question to which the state any you have improper which the court found was: “Do your any rape intention to reason to believe that assailant had The court you you Skaggs?” when he forced into the car done, asking limited the cross-examiner to what was said leaving jury. the determination of intent to the Because of examination, including a state- testimony elicited further (the assailant) if he prosecutrix ment that the had not known her, going rape was to we find no reversible error may predicated limitation of cross-examination. Error not be upon ruling excluding right evidence unless a of substantial 28-1001, (a) a party is affected. Ark. Stat. Ann. Rule § 1979). (Repl.

Appellant attorney states that forego had to cross- Phillips examination of Officer on “as to the time of rebuttal preclude evidence alibi” to of other unrelated cases from be- ing jury. Phillips heard testified that when surrendered, officer, Beed Beed had this asked “About rape happen?” deal—when did and said that he had been taken girl night by to his friend’s house at about 7:30 near until living fellow Mandeville had remained there appellant’s with This inconsistent 10:30 11:30.

testimony and that of witnesses who testified on behalf of appellant. Appellant’s objection testimony to the on the ground presence that the statement made in the was not We appellant’s counsel. do not understand how counsel was cross-examination, precluded except by from his own tactical decision.

Appellant contends that there were several instances where the trial commented the evidence to judge trial appellant’s prejudice. judge’s We do not see how the the ex- question by appellant’s remarks that the counsel as to in- any her that her assailant istence of reason for to believe rape speculative question tended her and that the repri- jury, intent determination constituted was for argument permitting mand counsel. The dire in the prosecuting attorney question a witness on voir presence jury presence about his courtroom sequestered, somehow after the witness by indicative of a lack amounted to a comment court credibility persuasive. having is not The witness denied heard We testify. and do not see testimony permitted to by questioning prejudiced court’s appellant how doing the kind he had been at gambling Williams about of testified, if him his asking the time about which he had state- had dice appellant shooting ment that he and been was made March, and had taken place under whether this oath already Friday night, The witness had testified that on 23, 1979, alleged the date of the of the March commission with gone which had been he had appellant charged, crimes gamble and place gambled to Martin’s to that he con- Babe tinuously there, at a the time of arrival table from p.m. somewhere between and the time 10:00 of his 11:30 at departure or 4:00 had said that a.m. Williams also he 3:30 gamble went there to He often. said about or minutes arrival, table, after his Beed came there and stood others, along with to 20 until left. gambling Williams The trial judge’s inquiry pertained gambling place, to the at the not Williams’ about testimony presence. to Beed’s This line inquiry of should not be retrial. repeated on

There was neither an unwarranted limitation of cross- when, examination nor comment improper on the evidence after witness had prosecuting testified on cross- husband, that her examination she and whom she first based, reported the incident on which the were charges separated before the offense alleged occurred that a suit divorce the trial an pending, objec- court sustained tion state to that line of questioning responded appellant’s attorney right statement go he had into the character prosecuting saying the fact that the her separated witness and did husband necessarily go not to her character. The trial court’s remark simply sustaining objection. stated reason for the state’s Appellant did attempt inquiry to indicate how the line of upon credibility reflected witness. We do not find that the collective effect the trial judge’s remarks con- stituted unmerited appellant’s attorney rebuke of only now might contends. remark that be so construed was the trial judge’s permitting statement ob- jection “copiously of defense counsel to be noted record.” used, The descriptive adverb should not have but we trial take the expression to have been an statement a tactics than judge’s irritation defense counsel’s rather State, Rogers error. v. reprimand and not reversible See 257 144, Ark. S.W. 2d 515 79.

Appellant admis- arguments advances several about the evidence, consider, they sion of we will now which insofar may a new trial. affect

During pretrial hearing, objected a admis- lineup sion of the had photographic folder which presented prosecuting pur- the witness for identification a poses. judge per- The trial at that time ruling reserved but mitted of the folder the trial. during Appellant’s introduction objections multiple. here are He that identifica- contends the (1) the unfairly testimony tion was influenced as to because: (2) date it the “self-contradicting;” was conducted is shoulders, only they all photographs showed head and so flies police could have been selected from the hundreds given by the the the description prosecuting from witness and only person the that fit the portrayed characteristic of relatively description given pictured was that all of those males; (3) young the the deliberately black state limited six, photographs per- number rather than of to be viewed to mit the prosecuting pictures witness to view the of numerous young males contained the s files. black sheriff reliability is Although eyewitness identification normally fairness of question jury, the fundamental procedures to the trial court. identification addresses itself 935; Hulsey State, 756, Synoground See v. 260 Ark. 543 882, State, 449, 73, v. 2d den. 261 S.W. cert. U.S. 549 439 220, Although question S. Ct. L. Ed. 2d 58 99 194. un- procedure

whether is pretrial photograph identification fact, duly may a mixed of law prejudicial question be State, 33, 99, v. Synoground 2d v. 247 Ark. S.W. {McClain State, trial decision judge’s we should not reverse the supra) unless, circumstances, clearly viewing totality is 800; State, 2d Hinton S.W. erroneous. See 2d 420. Mayes v. 264 Ark. S.W. Identification admissible, totality if from testimony properly very a give did not rise circumstances confrontation Lindsey irreparable substantial likelihood of misidentification. say 264 Ark. We cannot admitting the trial court erred in the evidence concerning photograph identification. The discrepancy upon testimony dates is based Phillips pretrial hearing Officer that the lineup was 23, 1979, prosecuting conducted on March and that the only photographs viewed the on one occasion. He said that none of those shown photographs were custody at that time. prosecuting witness testified at the date, pretrial saw them hearing she later after she given the alleged Phillips statement about offense. testified at trial that prosecuting the the had witness viewed photographs The March witness testified dur- 27. also ing the trial that she viewed the March photographs on discrepancy The in inconsequential 27. dates was and not in- dicative of unfair influence. that,

Phillips testified in selecting photographs, officers attempted persons to choose those of the same height age and and complexion that match the would suspect. He said that the photographs, although showing only the and heads shoulders the persons pictured, were of persons build, same complexion and The age. prosecuting witness said that she had her described assailant male, tall, slender, as a black between weighing 5'5" 5'6" dressed, about pounds, well wearing three-piece 145 suit hat, twenties, snap-brim and in early with smooth com- hair, plexion skinned, and facial light no soft spoken, not hav- ordinary ing black accent and not said using slang. She that the only photographs similarities and her descrip- subjects tion were relatively were all and all black young. Keeping in mind the fact that was then in custody, hardly it is likely that the would photographs show wearing apparel. similar photograph If the of appellant (it possession police of the was obtained from Arkansas City Department), shoulders, Police head only showed it all logical fact, others type. be of same This stand- alone, ing not evidence police of unfair influence. gives six photographs limitation to is a matter that along

us more concern when with appellant’s considered objections. testimony other As we read Officer Phillips’ however, it pretrial discloses that he and hearing, Officer through photographs Bolton went files of until available they approximately age had found five of the same their suspect, Beed, haircuts, with builds; similar features they did not consider necessary prosecuting have go through other nor photographs they numerous did believe might this unduly limitation influence her her identifica- tion.

The test we identifications is on fac- apply such based Brathwaite, in Manson v. U.S. Ct. tors stated S. L. 2d (1977). Ed. McCraw v. 262 Ark. They are: the opportunity of the witness to

view the at the crime, criminal time of the the degree of atten- witness, accuracy tion of the the prior description criminal, the level of certainty demonstrated at the confronta- tion and the time between the crime and the confrontation. may

There have been some discrepancies the description given height as to and weight, and the matter of facial hair subject however, dispute; to some the prosecuting always positive witness was unwavering. say We cannot that the collective effect of those matters takes be suggestive outweighed by is pertinent not the factors be considered determining reliability of identification ad- for mission the of evidence.

Appellant that, next contends since folder the of photographs was through introduced Officer Phillips rather than through witness, the prosecuting it hearsay, the because witness testified that she appellant’s identified photograph. Any respect error this was cured when the prosecuting witness testified was cross-examined exten- sively about her identification of appellant descrip- and the had given police. State, tion she 482, the White v. Ark. 270 (1980). also, S.W. 2d 11 State, 677, 605 See French v. Ark. 231 863; State, Bishop 12, v. Ark. 2d 331 S.W. 236 364 676.

Appellant next two-pronged upon makes a attack i.e., one, admission of of photographic evidence lineup, 542 unnecessary because

the state’s and three exhibits two two, probative they their value was sub were cumulative The mere prejudice. unfair fact stantially outweighed exclusion, in may ground for be a its evidence is cumulative hardly it judge, the trial basis of but is sound discretion admission, proper, constitutes holding that its otherwise for State, 249, McMillan v. Ark. abuse discretion. 314 229 State, 168; 483; Sheppard 120 S.W. S.W. 23 also, State, Law, See Hall v. Criminal § CJS Ark. State, 594, 212 121, 40 578; Kindrix v. S.W. 1979) 28-1001, (Repl. does not Stat. Rule 84. Ark. Ann. § in either the trial or require approach, a different court, it evidence merely permits the exclusion of appellate effect question weighing prejudicial The cumulative. probative is a matter against its value of cumulative evidence judge of the trial balancing which is function primarily The of discretion of his discretion. exercise exercise interfered with the trial court in such a matter should not be McMillan v. manifest abuse. appeal the absence of also, Tompkins, The Trial Sheppard supra. See supra; 1936). (2d. It Ed. should be noted Evidence Handbook § 1979), 28-1001, (Repl. Rule that under Ark. Stat. Ann. § probative excluded unless its relevant evidence should be course, substantially Of outweighed by prejudice. value is unfair likely prejudicial it state will be is that evidence offered accused, first would not be offered. The probably to an which a trial is whether evidence judge consideration for probable danger a fact more creates makes existence of secondary prejudice. unfair consideration whether substantially outweighs the danger prejudice unfair There was no of discre probative value of the evidence. abuse evidence, particularly view of tion the admission of this necessarily persistent and the attack on defense alibi appellant by prosecuting witness. identification of ef- his witnesses had testified an appellant After and alibi, Kreiger an called Ed fort establish state jailer Kreiger employed was rebuttal. 6, April He that on County Miller Sheriffs office. testified in a 1979, say telephone Beed to someone he had overheard conversation, “Get either suitcase or gun. It’s merely discloses that The of the record dryer.” abstract 543 appellant’s attorney a general objection any made specific ground was stated off-the-record discussion A general objection bench. cannot be the basis for reversi- 28-1001, (a) ble Ark. Stat. Ann. (Repl. error. Rule § 103 1979). that, Appellant says now in order to avoid disclosing that the conversation another related to offense with which appellant charged, was attorney objected on the ground that, made, when the appellant statement was had waived not the right to counsel. The statement was not result of any interrogation whatever. The mere fact that appellant was in custody it when made did not was make inadmissible a showing without right waived his counsel, where there no interrogation. was

It was police misconduct that was intended in to be Arizona, hibited Miranda v. 436, 86 1602, 16 U.S. S. Ct. 384 (1970) L.Ed. 2d and its progeny the making 694 not incriminating statements. Statements which do not result from in-custody interrogation are State, not barred v. Johnson 1113, Ark. 482 252 S.W. 2d 600. Spontaneous, voluntary and unsolicited accused, statements made when an although custody, being not interrogated State, are Steel admissible. v. 75, 436

246 800; Ark. S.W. State, 2d v. 253, Ark. 254 Crawford 900; Reynolds State, 1007, 492 Ark. S.W. 2d 254 497 275; State, Upton Ark. 904; S.W. 2d Sanders v. 752; S.W. 2d Little v. might It be advisable for the court on retrial to conduct a hearing camera to determine whether the statement voluntary. of appellant’s decision attorney base an ob-

jection on the relationship the statement to another crime clearly one, tactical the testimony but would not have been rendered inadmissible had the attorney chosen different tactical course. elect the state to require the court to

Appellant moved or for kidnapping him for prosecute it intended to whether contention motion rape. The basis of com- for both the forcible formed basis of force same acts charge rape an element which was pulsion in sexual the purpose engaging with kidnapping charge of that restraint was argues intercourse. same Appellant and this resulted kidnapping and prove rape used to both He that the him in does not contend jeopardy. putting double and separate proof as of two dis- acts cannot be used same the two crimes upon relies definition of tinct felonies. He in the of the statute commentary and the to section defining rape. He kidnapping Arkansas Criminal Code requiring is a offense kidnapping out that continuous points person, that the restrained another without proof accused consent, with the other per- as to interfere person’s that so acts, in certain liberty engaging with the one purpose son’s intercourse, rape while in sexual is engaging of which person by intercourse with another engaging act of sexual force, compulsion, physical which is either or forcible threat, injury death express implied, physical or to or or Ann. 41- See Ark. Stat. kidnapping person. §§ of another 1977). (2) commentary The (Repl. and -1801 -1803 reliance follows Stat. appellant places greatest which however, is a commentary, Ann. That clear 41-1702. § when, here, that exceeds nor- recognition that restraint rape robbery, mally incident the crime of or robber prosecution kidnapping. for subject also be should clearly The two evidence here forms basis prosecutrix separate kidnapping rape. crimes of when, her testified was accosted assailant she 23, 1979, p.m. returned to her about 10:00 on March she automobile, parking Skaggs- in the lot at which was Texarkana, that the assailant grocery Albertson store face, back, her derringer the car shoved silver jerked door said, car, you,” got up kill started “Move over or I’ll Mandeville, where he turned out Highway and drove field, he get her to the car or would the car into told out of off, her her seat of the car shoot head ordered into back off, and then her. She said that raped and to take her clothes have sexual inter- the accused indicated his intention to first they driving Highway down course with her while inter- had first resisted the act of sexual She said she assailant, he that if her but that said she fighting course him, She that he held the he kill her. testified fought would She said throughout his hand act of intercourse. gun given the rape have that she would not submitted to that he threatened weapon, man her had he not had rings kill and that she he would her on several occasions believed than the minimal there was evidence of more Clearly her. rape. the crime necessarily accompanies of

restraint which that of recently rejected argument similar to We have State, 886, 2d Conley v. Ark. S.W. in 607 appellant 270 328 (1980). jurisdictions, reason we find from other For this cases relies, merit in unpersuasive. We find no upon which appellant’s argument point. this

Appellant in denying contends that the trial court erred aggravated robbery the charge his motion for dismissal of at the that there was in- close of state’s case-in-chief and support sufficient evidence to his conviction of that crime. Appellant the evidence did not either contends that show robbery robbery, or have at aggravated supported, but would best, appellant’s theft threat. It property is contention robbery that there no there aggravated could be because there to im- robbery and was no evidence of threat no mediately physical prosecuting force the time the employ gave rings says her her He that the to assailant. property witness admitted that the theft of her prosecuting her threaten- employed was not committed while assailant or employ physical upon ed to her. force

Appellant immediacy of the threaten- points out that by threat. physical robbery ed from theft distinguishes force 1979), (Repl. Ark. Ann. 41-2102 (Supp. See Stat. -2103 §§ 1977), 1979) Commentary, 41-2103, -41 (Supp. and §§ -2203 1977). upon ap- some extent (Repl. Appellant -2201 relies to testimony prosecuting of the parent inconsistencies witness, prior her and testimony between statements consequence These are of no our considera- police officers. most, they credibility At went to piont.

tion of this State, S.W. v. Ark. witness. Kitchen 271 607 (1980). and the question 2d Resolution of conflicts 345 credibility jury. were for the Riddick 271 (1980). the sufficien- determining In only look robbery, we aggravated to show cy of evidence state, there if, to the light viewed most favorable to see Ply support charge. evidence was substantial (1980). gist appellant’s argument there must have active, been some actual threat at the time the were rings that, robbery, implied taken constitute if there was an threat, longer agree it no We when view existed. do not we the evidence as we must.

The victim testified: lot, she parking

When was accosted Beed shoved you.” her face said: gun “Move over or I’ll kill car, During they he time had the gun, times, derringer, silver at all held it in hand even he her. raping difficulty while When she was having in keeping crying, from Beed her that he said told he would let her if go, kept but she on he would crying kill have to her. When he her ordered out of the car Mandeville, grassy field near the alternative offered was having her head off. shot When she was reluctant take to so, her again clothes off when Beed ordered her to do he threatened to kill her. When she resisted sexual inter- Beed, by fighting course he said if fought, she he would her, kill her. He to trying agitate seemed be to she so fight. would When Beed decided to terminate the sexual act, he told her he had decided to kill not her because she had children he go and would her if let she would anyone tell not what had happened. about He noticed dressed, rings her as getting she was asked if they give valuable and told to to him along her them with all money gun she had. He still had his hand. He her, told her then did that he not intend to hurt but she did not believe him. got When Beed at first into the car lot, the parking he had told her that he going kill money. her and wanted her She had no in her doubt mind about Beed’s intention to kill her. She would not given have Beed if rings weapon. he had not had a He had threatened her several times she believed he kill would her. testimony

This very constituted substantial evidence that there was immediate threat death or serious witness, physical injury prosecuting to the she least until had surrendered her rings money. her not instruct- erred that the court Appellant contends abuse offense of sexual the lesser included ing jury witness, that Beed testified degree. prosecuting the first her, act sexual lasted 5 with that had sexual intercourse that Beed reached she did not believe minutes and that her that he had decided he told got up, climax before sexual this, there had been positive do that she was not to but with agree appellant’s We statement do penetration. to dis- as whether Beed decided

the witness was confused act. The during alleged or the sexual act before continue five after examined her four or hours fact that the doctor who last had to determine when she had the incident was unable pelvic in a he ex- sexual intercourse and semen found It is was immaterial. sperm contained non-motile amination sperm normally had a life ex- physician true that the said that that his find- days, of two three but he also said pectancy or with recent sexual intercourse ings were consistent swelling He degree a minimal around labia. mentioned non-motility sperm. things cause that number of can said females) (by of an- production them was some Among sperm. kill rapidly tibodies which in jury

It is to refuse to instruct the on lesser not error here, evidence, clearly where the shows cluded offense greater offense innocent. guilty the defendant is either 420, 479 ton Under Ca 537. law, to a with obligated jury a not instruct

present court is is to unless there a rational basis respect an included offense charged a of offense acquitting for verdict defendant 41- degree. him the Ark. Stat. Ann. convicting § of lesser 1977). (3) acquitting We find no rational for (Repl. basis him of rape finding guilty Beed sexual abuse of degree. first theft instruction on of

Appellant complains of court’s he material and considers property because of omissions of did submit the lesser included offense the court because as a We felony theft and theft misdemeanor. as class C as the minimum say that is error to appellant should first B felony by a class of required for Act property value (Repl. 1977). Ann. That amount Ark. Stat. 41-2203 § $10,000 $2,500. reduced from to The maximum value $1,510. which found could be from the evidence here was B jury could find theft appellant guilty of class felony if it that the property found obtained threat victim, physical injury serious to the regardless of of value It property. appear that the lesser does included offense theft, felony, given. class C should be Finally, appellant contends that the trial erred in court sentencing him him advising right appeal, without of his to period time prescribed appeal, for fixing bond for appeal bond, or stating right to and without the benefit of any determine report to any investigation presentence with agree We mitigating circumstances. error for court to sentence him according before him right He allocution. has shown no prejudice because of

the court’s failure to advise him rights regard of his with appeal or fix pending appeal. bond The resort presentence investigation discretionary with the trial court. sentence, Since the court made a life year sentence and a year run consecutively, sentence it might have been the practice to presentence better first have a investigation, but we find no abuse of trial court’s discretion this case.

The judgment is and the reversed cause remanded new trial.

Stroud, J., concurs. F. Stroud, J., concurs.

John F. Justice, I concurring. am compelled to Stroud, John concur in the reversal of the conviction this case because the affidavit in support of the search warrant was defective. This court held many has times that an police affidavit aof setting officer gained forth information from a confidential in- not only formant must show the information was obtained source, from a reliable but must set also forth some of the upon facts or circumstances which the informant’s informa- Lechner, tion was State v. based.

(1977); 1, 552, (1977). 262 Ark. Lunsford Here the affidavit contained sufficient facts to show the informant, reliability of the completely confidential but was any devoid of underlying circumstances or facts supporting the informant’s conclusion that the stolen items were hidden appellant’s residence of mother.

I favor a more lenient requirement for the issuance of a search permit warrant to the search of a specific residence for stolen property after the accused charged has been arrested for burglary robbery, person’s because a residence is the place usual and booty normal where such is hidden. To require that a confidential informant see the goods stolen there, be there, told the accused they are or otherwise have facts indicating they are secreted the residence is in most cases a denial right to search. I only concur my because view is inundated prior decisions of this court and the United Supreme States Aguilar Texas, Court. (1965). U.S. 108

However, I disagree with majority opinion in also basing their reversal on the failure of the trial court to dismiss juror Richard Bolton for cause. I Although agree that it would have been expedient for the trial judge to have dismiss- juror cause, ed Bolton for and I urge would all judges circuit to do circumstances, so similar I do not think the failure to do so constituted majority reversible error. The acknowledge that a literal reading of Ark. Stat. Ann. (Repl. § 43-1920 1977) does not require dismissal juror cause, Bolton for they but apply nevertheless the statute here premise on the liberal construction. The portion of the statute relied on provides that a challenge implied may bias taken be where the juror is related consanguinity to the person on whose complaint the prosecution was instituted. There ques- is no tion here, about the relationship only possible person but upon whose complaint prosecution could have in- stituted victim. I think do not that language can be expanded liberally so police to include a par- officer who ticipated in the investigation, nor I think legislature do possibly could wás, therefore, have meaning. intended that It not error to refuse juror to excuse un- implied Bolton for bias der § 43-1920.

The majority opinion also the juror indicated that said, should have been excused for actual when it bias voir on say Richard Bolton’s answers can we that “Neither prevented him as one who was eliminate dire were sufficient to ...” impartially acting circumstancesfrom by relationship panel was conducted voir dire of the entire Although lengthy by the of Mr. Bolton judge, questioning trial juror continued called as attorney after he defense as follows: in Bolton, the evidence develop it from

Q. Mr. should brother, currently case, who I believe your that this work, in should be himself law-enforcement employed have worked connection this case or should case, you that cause would investigation with the of this the State than toward heavily favor of to lean more the defendant? No,

A. sir. heard, course, Walker Q. question to Mr. You you you If feel that knowing a witness case. about your arriv- jury, are chosen on this deliberations em- guilty, would be ing at a verdict of with your case friends barrassing you to discuss this and Police being Department Sheriffs Department? No,

A. sir. all? Q. you think it You don’t would bother n No, A. sir. your influence

Q. relationship let that You wouldn’t case? judgment of the evidence this No, A. sir. jurors

Q. any of the other try persuade You wouldn’t their things against those should be considered judgment? No,

A. sir. counsel, the trial court Following questioning by to additional response an affirmative from Bolton received can, any embarrass- you you “Do feel that without question, ment, obviously It speak the truth?” and let the verdict serve given Mr. to impossible have for Bolton have would bias. reflecting a total lack of actual perfect responses more right accept responses Mr. Bolton’s as judge The had the to is a matter actual bias being truthful. The determination of judge. the trial lying judicial within the sound discretion of (1976). v. Gammel S.W. majority rely Highway

The on Arkansas State Comm’n 765, 410 (1967), their Young, support 241 Ark. 2d 120 juror it Bolton that was error not to excuse decision reversible police due officer participation for cause to his brother’s did find was error investigation of the case. That case cause, in this case wife of a but excuse the not a witness. In Officer Bolton was Jones (1959), of a juror where a sister case, held, “The testified this court police officer who per se relationship juror of a the trial does not to witness tan disqualify juror.” majority opinion in this case is The disqualified Mr. as a holding tamount Bolton is juror per though se even was not witness his brother trial, neither he is entitled to a fair but case. trial. any perfect is entitled to a nor other accused

Case Details

Case Name: Beed v. State

Court Name: Supreme Court of Arkansas

Date Published: Dec 22, 1980

Citation: 609 S.W.2d 898

Docket Number: CR 79-229

Court Abbreviation: Ark.