*1 nominating party a for failure of nominee candidacy party discretion, elect may in its to party, a rule. The party to enforce waive such may and in its discretion a require loyalty pledge challenge a candidate a timely by to a subject only requirement as so to political party relationship with such person action or inaction. challenge the party’s to standing confer error, affirm. we Finding no J., Hays, not participating. J., concurring.
Glaze,
Justice,
Even
concurring.
assuming
I concur.
Glaze,
Tom
bring
they
this
were
standing
litigation,
had
the appellants
Election in May
do before the Democratic Primary
so
required
recognized that the
provisions
This court has repeatedly
1990.
before the
mandatory
sought
laws
if enforcement
elections
are
until
Donn v.
if not raised
after the election.
directory
election and
415,
McCuen,
(1990); Stillinger
Supreme Court October delivered Opinion [Rehearing denied December 1990.*] JJ., Glaze, rehearing. grant *Hays and would *2 O’Hern, Allen, L. & Arthur Allen by: appellant. Clark, Purvis, Gen., Gen., Ann Asst. Steve by: Att’y Att’y for appellee. *3 Hill, Turner, The appellant, Anthony
Otis H. Justice. and first-degree his for the crime of conviction challenges life He asserts two resulting points the sentence of imprisonment. First, court erroneously as he that the trial argues permit- error. ted of statements obtained in violation of introduction custodial Fifth, Sixth, We rights. and Fourteenth Amendment appellant’s find be without merit. Secondly, appellant this contention to in give submits that the trial court erred to failing proper agree on murder. We with this conten- first-degree tion, while of we that finding guilty, and we affirm reduce second-degree from one of finding the sentence. accordingly modify 22,1988, December of Dale Green was body Bobby On Home. discovered on the side of road near Sweet Pulaski Ken Dillon for Deputy picked appellant Sheriff County up testified he about the homicide. Dillon that questioning Deputy him to the rights read the his before appellant transporting arrival, Sergeant again Carl Beadle Department. Upon Sheriff’s his Miranda form rights, signed read the and Hill a appellant Beadle, rights. During by Sergeant waiving questioning those first Dale at denied killed Green having Bobby ultimately He admitted blamed homicide on another person. victim, and, of his killed the after was advised having again a statement was made. Subse- rights, tape recording oral trial, that statement introduced at quently transcript objections. over defense given his argument statements
Sheriffs were not two Department voluntary premised upon assertions, First, that, neither of which can be sustained. he notes when evaluated by he was found to have an private psychologist, intelligence quotient between 56 to be at functioning below the level of third grade, was classified as mildly Further, mentally retarded. he states that he had obtained only education, tenth-grade consisting primarily special education classes, and had low verbal skills. He also remarks on his dysfunctional family background with alcoholic father and a circumstances, ill claims, brother. These mentally the appellant in him a place position analogous to that of the in Duncan v. S.W.2d 653 In that case, the court reversed a supreme murder convic- capital felony tion in part a failure of the state to show an effective waiver of There, rights. had out dropped of school in the eleventh grade, level, read third-grade at a had IQan and was classified as mildly retarded. The difference between case, however, Duncan and the present in consists the absence in the earlier case of evidence in the record of a rights-waiver form having been signed and the fact that the appellant Duncan had been detained for a substantial length time. As the court observed:
. . . Duncan was literate and barely marginally retarded. He was a waiver form to nor sign was he asked whether he waived his he was rights; kept incommunicado *4 for three and a half and it was days, at the end of only that time that he an gave inculpatory statement. There was no showing a deliberate and intentional relinquishment his rights, or that he had a clear understanding of what those rights were. 531-532,
Regarding the appellant’s argument that his low 466 of his waiver and validity affects the
intelligence quotient
statement,
in Burin v.
this court has held
his
voluntariness of
State,
130,
289 Ark.
709 S.W.2d
State,
Hatley v.
and in
itself,
not,
will
render
intelligence quotient
that a low
(1986),
afforded Miranda v.
by
waiver of the
involuntary
privilege
a
Arizona,
considered are
Other factors to be
(1966).
In Smith v. 292 Ark. finding that there was sufficient court the trial court’s upheld rights understood his and had made a evidence a defendant waiver, valid the fact that the defendant was found to have despite average an to be three levels below the IQ functioning age, a third-grade his and had obtained expected (although grades). Again, education he had ten completed be credibility. matter was considered to one of Even fourteen- defendant, was found to be year-old intelligence quotient whose made a range,” in the “low dull normal was held to have voluntary of her father in Little v. confession argument S.W.2d 312 The appellant’s for. reversal on this point persuasive. with the court’s second deals point relating appel- over the form of the instruction. The timely objection
lant’s *5 aside is meritorious and us to set appellant’s argument requires degree the verdict of first murder. with violations of Ark. Code charged was — murder; Ark. 1989) felony (Supp. capital
Ann. 5-10-101 § — Ark. Code 1989) robbery; Ann. 5-12-102 (Supp. Code § Following 1989) —theft of property. Ann. 5-36-103 (Supp. § guilty was found trial by jury, was found charge robbery, acquitted of misdemeanor theft guilty property. 1989) 5-10-101(a)(l) (c) Code Ann. (Supp.
Ark. § in part: provide A commits murder if:
(a) capital person he alone or with one or more other (1) Acting persons, in or to commit. . . . . . and robbery commits attempts or in the course of and in furtherance of the felony, therefrom, he or an causes the flight immediate accomplice manifesting death of under circumstances any person life; extreme indifference to the value of human . . . (c) murder is death or life Capital punishable by .... imprisonment parole Under the crime of murder is the lesser felony capital degree. included offense of murder in the first Ark. Code felony Ann. in 1989) 5-10-102 as (Supp. provides pertinent part § follows:
(a) A commits murder in degree the first if: person (1) alone or with one or more Acting (1) persons, commits or in course to commit a attempts felony, immediate of and in furtherance of flight or therefrom, he or an causes the death of accomplice any under person manifesting circumstances extreme indiffer- life; ence to the value of human (2) With a the death of another purpose causing he causes the death of another . . . person, person; (c) Murder in the first is a Class Y felony. Also within the is the lesser included capital offense of murder. Ark. Code Ann. 5-10-103 second-degree 1989) (Supp. provides:
' A(a) commits murder in the second if: person *6 person the death of another He causes
(1) knowingly indiffer- extreme and manifesting circumstances under life; or value of human ence to the causing serious physical the (2) purpose With any causes the death of person. person, to another injury B felony. is a Class degree in the second (b) Murder case, charged capital felony this the appellant In — of the offense of the commission in the course killing murder the provisions felonies under of the enumerated of robbery—one information, he was also 5-10-101. In the Ark. Code Ann. § of robbery. offense separate with the charged the jury, to submission of the case Prior in the first degree on murder felony instruction tendered proper murder, felony offense of capital as a lesser included of Ark. Code Ann. tracked the provisions proffered tender, refused the (1). The trial court 5-10-102(a) § first- the fact that the upon its refusal grounding apparently the same ele- require instruction would degree murder felony of the capital felony would thus be a repetition ments of proof instruction, being with the difference punishment. charge on first- jury
Having
appellant’s proffered
refused
instead an instruction
gave
the court
degree felony
first-degree
to convict the
jury
permitting
instruc-
and deliberation.” This
finding “premeditation
upon
5-10-102(a) (2).
Ann.
tion followed Ark. Code
§
jury,
court also
instructed
properly
trial
However, no instruction was
the offense of
objection,
robbery.
on
robbery.
on attempted
requested
instructed,
on
returned an
Having
acquittal
been so
on the capital
verdict of
guilty,
and a
robbery
in the first
after
charge,
but of murder
—
in the
an offense not included
and deliberation
premeditation
with the homicide.
charging
information
5-10-
Ark.
Ann.
5-10-101
Though
Code
§
§
does not render
this circumstance
102(1) admittedly overlap,
v.
Penn
in its
suspect
application.
either statute constitutionally
State,
(1984); Wilson Indeed,
682, 611
have said that
S.W.2d 739
we
Ark.
Ann. 5-
murder is
under Ark. Code
charged
when capital felony
10-101,
murder is a “lesser included offense” because
necessity proves
the former of
*7
prove
the same evidence used
Therefore,
murder is re
an instruction on
latter.
State,
60,
(1986).
Ark.
The jury acquitted appellant murder from the finding underlying felony capital removed the information, contained no language set forth in the which charge and deliberation. The addressing question premeditation of crime with which he had was thus convicted appellant never of the constitutes a violation charged. clearly been Such result due process rights. information, considered in of the language Under could be jury, appellant with the verdict conjunction no crime than murder. We greater second-degree convicted of therefore the conviction of the appellant must reduce was degree, murder in the second on which a proper the maximum objection. The received appellant — — murder life first-degree felony imprisonment sentence for to the maximum for and we therefore reduce that sentence — 5-4- Ark. Code Ann. second-degree twenty years. § State, 292 Ark. 729 S.W.2d Midgett 401(a)(3) (1987); (1987). Affirmed as modified. J., concurs.
Dudley, J., Glaze, dissents in part. concurs part Justice, concurring. H. I write separately Dudley, Robert case. of this in the disposition concur murder. charged capital was The appellant such a Under underlying felony. as the Robbery specified of capital felony been convicted could have appellant murder, murder, robbery, or second first 5-1-110(b)(1) (1987). Ann. Ark. Code robbery. attempted § of robbery filed a count separate the State Interestingly enough, since, under second count was surplusage same act. The for the con could have been charge, capital them, but or either robbery, murder and victed of both 5-1- Ark. Code Ann. one of the convictions. for only sentenced Commen Supplementary see also 1983 (b) (1987); 110(a) Felony, Underlying Murder and Felony sub-section styled tary, The and Wilson v. and not guilty guilty capital found jury guilty did find robbery. count of the separate *8 in the murder, As set out charged. a crime of pre-meditated instruct on refusing court erred in to the trial majority opinion, The real issue is do we must reverse. Accordingly, murder. felony degree the to second judgment or do we reduce we remand the turns on whether The resolution of that issue murder? information can be amended. amended case cannot be information in this particular violating the felony prohi- another charge underlying
to was acquitted because against appellant bition double jeopardy A second for the same jeopardy count of robbery. of the separate think of any Jur. 2d 266.1 cannot offense is Am. prohibited. and which is felony essentially independent other underlying Further, none is charged. with which can be distinct appellant Thus, the State remanding allowing the State. suggested by the double would violate felony to to a different underlying amend reducing judg- I in the Accordingly, join prohibition. jeopardy degree conviction to second murder. ment of Justice, in dissenting in concurring part Glaze, Tom since the argues jury acquitted appellant part. Appellant the charge, murder capital to robbery, underlying felony of the lesser returned an acquittal was certain to have jury conclusion murder. Such a degree felony offense of first included is based sheer upon speculation. on murder
First, capital state based the degree first Under the felony robbery. underlying enumerated killed have shown appellant the state could charge, murder felony committing course and furtherance during Green Bobby fact, and Bobby any felony. appellant In commit to attempting when drug deal midst of a felony were in the Green Thus, decided appellant well have jury may Green. murdered chose to even it though murder degree felony first guilty of capital felony crime greater on acquit appellant of life without parole. carried a penalty would have which degree to the first sum, was entitled although appellant In most, instruction, he, is entitled at the felony state’s new trial. It is the of this case for a and remand reversal court’s, decision, as to how to proceed not this option matter. theBy the remand of this to present upon what evidence murder instruction token, is entitled same to decide have the opportunity and the should he requested, lesser included offense. Under under that appellant’s culpability circumstances, claim that double jeopardy cannot these attached, for the first when he asks especially words, he should not was refused. In other instruction he offense him a first failing give for the trial court’s to claim error be able assert double jeopardy instruction and later degree felony life reducing wrong basis. This court on that term for second which is the maximum to twenty years, sentence homicide. *9 Arkansas WELLS v. STATE of William Scott 798 S.W.2d CR 90-154 Arkansas Court of Supreme 29, 1990 delivered October Opinion