*1 (1983). S.W.2d 759 there damages where Exemplary proper is an intentional violation of another’s to his Ford right property. 201, Motor Credit Co. v. Herring, 589 S.W.2d Here, there was an intentional violation of appellee’s beans right its and conscious indifference the consequences them. destroying that
Appellant argues he should not be liable honest, because he punitive damаges acted under the although mistaken, belief that F.C.I.C. would benefits to pay appellee. argument no answer if for even the F.C.I.C. had all paid benefits, possible would have lost appellee the value of beans was, best, the field. on the issue Appellant’s testimony cross-examination, evasive. At point, one he that he admitted expected appеllee to “eat” the loss on the He destroyed beans. patronizingly added destroying the beans he saved the appellee evidence, cost of harvesting. Viewing and its inferences, reasonable in the light most favorable to the appellee, there was substantial evidence from which the could find that knew appellant would be appellee damaged the intentional and was trespass simply indifferent to those consequences. Affirmed. J., not participating.
Purtle,
Bobby Ray FRETWELL v. STATE of Arkansas
CR 85-208
Supreme Court of Arkansas Opinion delivered May *3 Velek, William J. for appellant. Clark, Gen., Sudduth,
Steve Att’y Mary Beth Asst. by: Gen., Att’y for appellee.
Robert H. Justice. charged Dudley, was Appellant with murder. He realized capital that at trial the proof guilt of would be overwhelming. Under Arkansas law only jury a may impose death, the of so to appellant to the attempted plead guilty court, but assent, the would prosecutor not and the court would not the accept plea. After the jury had been picked, appellant to plead tried to the guilty guilt the or jury, skip innocence phase trial, of and proceed with immediately sentencing of phase the bifurcated trial. The prosecutor and objected insisted on making his proof during the guilt innocence phase. The trial court allowed the to do so. The prosecutor jury appellant found and guilty began deliberations on the penalty. After two one- hours, half jury reported they stood eleven to one. The trial AMCI6004, court erroneously gave them the Allen instruc- thereafter, tion. Shortly judge corrected the instruction. The day, next the jury fixed at death punishment by electrocution. death, from the Appellant appeals of sentence and not from the finding guilt. We affirm the sentence.
Appellant first contends that it was within the court’s court, discretion to his accept to plea guilty the even without assent, prosecutor’s and that the court’s to exercise any refusal discretion all denied him due process equal protection. fallacious, is Appellant’s first premise argument and the is without merit because in Arkansas a defendant is not felony of the prosecutor. without the assent a to the court to trial
entitled are precisely point. Procedure of Criminal The Rules provides: Rule 31.1 A.R.Cr.P. Prosecutor. Jury: by Assent Trial by
Waiver of a trial cause waive may criminal any defendant No is by prosecuting the waiver assented unless by jury the court. by attorney approved trial require is cases which clear. Criminal The rule defendant, (2) (1) by waived tried unless must so the court. The (3) approved by assented to by prosecutor, any the court has before mandatory two requirements first Here, assent requirement, the second discrеtion in the matter. state, was without discretion had and the court Rule 31.4 which augmented by allow the Rule 31.1 plea. provides: Felonies. by Jury: Capital Trial
Waiver of may awith charged capital felony No defendant guilt or the right either trial the issue by jury waive determined unless: by jury have sentence is to be tried in which the cause (a) the court *4 and voluntarily determines that the waiver is coercion; without or freely compulsion proffered with the permission (b) prosecuting attorney the court, the death penalty; has waived assented to the has (c) prosecuting attorney such waiver has been by waiver of trial jury, the court. by approved added.) (Emphasis be out conditions which must the rule sets
Again, waive a charged felony may met a defendant with сapital before the conjunctive conditions are with trial by jury. separated “and”, “or.” If all of the conditions disjunctive word not met, has no discretion. then the court trial court erred argues that the similarly
The appellant to allow him to refusing plead guilty jury. to the The trial court out, did not err. the rules set had the prosecutor right Under to his case to the present jury. reсognize
We that the rules in some give states a defendant Note, right the absolute to waive a jury trial. See 38 Texas L. Rev. 928 (1960). Arguments exist for a rule which allows accused to alone determine the mode of trial. See to Commentary American Bar Justice, Association Standards For Criminal rules, Standard 1986). 15-1.2 In (Supp. our this promulgating Court the rule we adopted which deem to be the bеtter one. is in It with accordance Standard 15-1.2 of the American Bar Associa- tion Standards for Criminal Justice:
Waiver of Trial by Jury (a) Cases required be tried should so jury waived, tried unless trial is with the consent of the prosecutor.
isIt also in accordance with Rule 23(a) of the Federal Rules of Note, Criminal Procedure. See Government Consent Waiver Jury Trial Under Rule The Federal 23(а) Rules Of Of Procedure, Criminal 65 Yale L. J. 1032 (1956). next
Appellant’s argument concerns the Allen charge, instruction, dynamite which was erroneously given during sentencing phase the trial.
Initially, court correctly instructed the jury on the sentence, fixing procedure and the jury retired the jury room at 3:12 p.m. At 5:46 courtroom, returned p.m. to the they and the foreman asked: gone
We have through the forms which you provided us, sir, Honor, Your decisions, have made and we’re down to line, the punishment bottom so to —the speak we’re eleven to one. And we wondered what —and would you instruct us to do this point.
Appellant’s asked if deadlocked, were attorney they and the foreman jury “We responded, did not take vote on whether not we were deadlocked. We have just made several test AMCI6004, votes.” The trial judge gave then them the Allen charge. The charge since, was obviously if the erroneously given sentence, their on the agree did unanimously
jury and there parole at life without automatically stand verdict would room at 5:52 to the jury The went back jury would not be a retrial. and at for one hour charge the Allen deliberated under p.m. Thеy following with the request: to courtroom returned 6:52 p.m. Honor, like dinner sir, go that we would to to we voted Your evening. this more deliberations return for some and then one, to declare and Í detected a reluctance are eleven We that. to move from impossible it was that jury for and instructed the declared a recess dinner The court at When the returned jury box 8:00 jury p.m. to be back recess, instructing corrected his earlier mistake the court from follows: jury as referred commonly I read the instruction that’s you
Earlier which tells to decide this you to as the instruction dynamite says at And a of that instruction case if all possible. part jury. to be tried another again by that the case have might never be heard other by any That’s incorrect. This case will than jury yourselves. to the answers to agree
If are unable to unanimously you three, your in form number then contained the questions you by been and will decided verdict has already in form three. instructions included information, Now, room return to the please jury with that begin redeliberating. returned at with p.m. 8:00 9:20 jury p.m. retired at following request: remains at eleven to one. The persоn The situation re- endorses that jury the one is requesting, order, of course—that we be quest subject your — night, on it over person sleep to allow that permitted it, it come back in the morning reflect on on and then pray sir, attempt. convenience and make one more your to return jury The court and directed the granted request returned to morning, jury at 9:30 At 9:30 a.m. the next a.m. 11:10 а.m. and returned at room for further deliberations its verdict. with
97 the erroneous of argues reading The that appellant to deliberation under the subjected jury pressure AMCI 6004 of decision a coming encouraged penalty of a unanimous a that the court should have argues imposed death. He also sentence of life without because the demonstrated its pаrole jury taking lack of several votes. The unanimity by appellant, conclusion, find this Court to reverse his sentence and urges he is life entitled to sentenced to without imprisonment parole. is correct in the first partially argument. Clearly,
Appellant giving charge of Allen was erroneous as it would encourage unanimity possibly encourage a death However, in оrder to avoid retrial. deliberated under jury the erroneous instruction from 5:52 only to 6:52 p.m. p.m. They dinner, then went to returning were upon correctly instructed at 8:00 The fact that did p.m. jury its vote change during the one hour deliberation under the charge Allen demonstrates that the error was harmless. The vote changed the next day, only corrected, after the instruction was one grаnted was juror his request it, on it “sleep overnight, reflect on iton and pray come back in the . . .” morning. appellant argues that trial court should have taken
the case from the after their jury votes. The preliminary argu- ment is without merit. The never jury reported that it was fact, deadlocked. In they asked more time. They only deliberated a total of about six and one-hаlf hours before being able to fix the sentence. There simply nothing indicate that the trial judge abused his discretion in letting the decide matter. There is no reversible error in any appellant’s points appeal.
Pursuant to 11(f) Rule of the Rules of the Court Supreme and the Court of issues, has Appeals, state raised two death qualified juries and double counting.
The use of qualified juries declared unconsti tutional in Mabry, 569 F. Grigsby 1273 Supp. (E.D. Ark. 1983). The decision of the district court was affirmed by the Eighth Circuit Court of Appeals Grigsby Mabry, F.2d (8th court, 1985). Cir. This in Rector v. 659 S.W.2d (1983), cases, and in many subsequent held that such juries were constitutional. The Court of the Supreme United holding that such are constitu- juries matter
States ended the *7 —, McCree, 106 1758 — U.S. S.Ct. tional in Lockhart (1986). v. Lock as in Collins counting, explained
Double the and hart, eighth violаtes 1985), 258 Cir. (8th 754 F.2d be to the United States Constitution amendments fourteenth crime, of the underlying pecuniary it allows an element cause circumstance, and aggravating as an again be counted gain, to of guilty robbery- the class of persons already thus fails to narrow issue, do not never the and we now murder. This court has decided no at to the instructions objection there was trial reach it because State, said in Wicks v. 270 double As we counting. which allowed 781, 606 we have (1980), “in hundreds cases Ark. S.W.2d for reversal argument our fundamental rule that an reiterated objection in the absence of an will not be considered appropriate held, (f)11 Ark. long in the court.” We have under Rule trial stake, is we when life at 1977), Stat. Ann. 43-2725 that (Repl. § reject record or accept will make our own examination the trial, whether or not objections argued on their merits all made of an we do not consider a matter in the absence but appeal, We where were egregious have made there objection. exceptions circumstances, to court failed such as where trial apparently a it life sentence. imрosing tell the that had option S.W.2d Appel Smith in this case because: lant asks us to make such an exception established objection To an where there no require but, rather, hope for the legal objection, only basis to will be would an existing changed, attorney law require argument time he has an to objections any make constantly law, change existing including аrguments even those in which have been unsuccessful the past. matter, for it is reaches the heart of the argument one who wishes to the law to raise change
our intention to require give adversary in trial court and his notice of the matter to a To allow timely any matter and make record. opportunity litigation. to endless and untimely other would be allow procedure wickedness, inhumanity, we Finally, compare to case with other cases order heinousness of this capital capital is not freakishly, capriciously, be certain that the death sentence we After such a find no whimsically comparison, applied. to alter the view that jury’s proper. reason and two saw a morning, In the very early appellant accomplices to wanted It was beside a service parked truck which steal. they wait station. until the station attendant came They planned work, and and kill the attendant. keys They then take lay wait but the attendant did not to work. They come soon located another a a They truck outside home. saw man inside the nearby house and truck kill so get key his him he could not planned them. identify
To complete the armed with loaded plan, appellant, pistol, knocked on the victim’s front door. The victim answered the door knock and offered assistance. then took the victim’s Appellant *8 truck, in money, key to his and shot him the temple. Appellant left victim to die and took the truck. The murder in the course of the was robbery еspecially egregious, the death penalty was not or freakishly arbitrarily applied.
Affirmed. J., not participating.
Purtle, J.,
Hickman,
concurs.
Justice,
Hickman,
Darrell
concurring. I concur to update
of our review of
history
cases contained in
capital
my
State,
in
concurring opinion
190, 193,
Ruiz v.
280
655
Ark.
J.,
S.W.2d
(1983)
441
(Hickman,
concurring). Since Ruiz we
have reviewed the death
in six
penalty
cases. Including Fretwell’s
sentence, affirmed
we have
today,
the death
in
upheld
penalty
State,
385,
four
v.
cases. Rector
280 Ark.
In 551, 660 S.W.2d 280 Ark. 163 (1983), the death sentence was reduced to life imprisonment without parоle.
100 for a reversed and remanded
In case the decision was another State, 462, S.W.2d 295 285 Ark. 688 new trial. Hendrickson a second Neither appeal. yet It has not been (1985). presented remanded, before we reversed have two cases previously 225, State, Ark. 640 Ruiz, Penelton v. 277 come us again. before 203, State, 643 276 Ark. S.W.2d Rhodes v. (1982); S.W.2d 795 in Harmon v. the death sentence (1982). 107 We reversed 265, was On retrial Harmon 641 S.W.2d sentence, life received a of first murder and degree found guilty 184, 125 (1985). we at 286 Ark. 690 S.W.2d which affirmed 18,1983, 12, time from until July May this During period cases in which murder was the capital we have reviewed To death but riot finding sought imposed. and the penalty we for 24 Fifteen persons. date have affirmed the penalty white, All are males. In are black and one is eight hispanic. can death cases which have affirmed nonе of four recent we severe doubt that the crime warranted the most there any law. by sentence allowed cases, no
In the
we have reviewed these
decision
years
nine
we
the death
has been reversed
have'approved
which
penalty
modified
the United States
Court. At
same time
Supreme
which
the death
has been
no decision in
we have affirmеd
Re
Eighth
affirmed
for the
Circuit.
Appeals
Court
Lockhart,
1985),
Cir.
(8th
Collins
F.2d
cently,
*9
life
Circuit reduced Carl Albert Collins’ death sentence to
Eighth
aggravating
one
without
because the state used
of the
parole
(murder
gain),
circumstances
committed for pecuniary
of
as one of the elements
the crime
in the
presented
penalty phase,
of a
murder was committed in the course
(that
robbery).
itself
Lockhart,
(8th
1985),
Eighth
v.
ADDENDUM this following In the cases has court affirmed the appellants’ death sentences: State, 385,
Rector
v.
280 Ark.
Pruett 304,
282 Ark.
The court reduced the
from
sentence
death to life without
parole Miller v.
In the following case where the appellant received a death
*10
sentence,
the court reversed and remanded and on retrial
appellant was convicted of first degree murder
received a
life
State,
Harmon v.
sentence.
rev’d. 277 Ark.
265,
(1982); aff'd, but penalty death cases following court has rеversed the State, v. 277 Ark. Penelton have not come they yet up appeal: State, 203, 643 225, 640 276 Ark. Rhodes v. (1982); S.W.2d 795 State, 462, v. 285 Ark. 688 Hendrickson (1982); S.W.2d 107 (1985). S.W.2d 295 charged
In
murder was
following
cases capital
found,
sought
but
imposed:
State,
372, 659
(1983);
176
Ark.
S.W.2d
Hogan v.
Breault v.
280
State,
State,
250, 663
v.
(1984);
S.W.2d 726
Love
rev’d
281 Ark.
379,
rem’d,
(1984);
v.
281 Ark.
COMMERCE OF PINE BLUFF
86-11
Supreme delivered Opinion May