*1 tо drive intoxicating liquor the influence of who is under within this State.” control of vehicle be actual we hold this case the circumstances Under of his within in actual control vehicle not He not been the may person of the statute. have meaning If he drove it it was parked. who drove vehicle where in have become where it was found place be construed strictly later. laws are to toxicated Criminal 259, 247 favor of the accused. Lewis v. act to authority without to declare an We are of this state by implication. come within the criminal laws Lewis v. supra. dismissed.
Reversed and J.,
Adkisson, Hickman, C.J., concur. J.,
Dudley, participating. Lee LINELL v.
Carl Arkansas STATE of CR 84-9 of Arkansas Court
Supreme 9, 1984 delivered July Opinion
16B *2 McKissic, for E. McKissic, Gene Cross, & by: Kearney appellant. Wheeler, E. Gen., Clark, Michael Asst. Att’y by:
Steve Gen., for appellee. Att’y Carl Hays, brought This is an appeal Steele Justice. of Charles murder for the capital from a conviction
Linell murder capital Misho attempted Louise wound Patterson, survived a bullet who Austin All stomach. three were shot with a small caliber weapon around p.m. January 7:00 during commis- sion of an aggrevated outside the robbery Bar and Grill in Pine Bluff. Linell,
Five later days Carl Carvin Thompson and Mamie Guy were Curry charged with the crimes. Thompson entered into a plea agreement for a sentence of life without parole and agreed to for the testify state. Linell was tried on 11,1983, July convicted and sentenced to life without parole for two counts of capital murder and twenty years for murder, attempted capital the sentences to run consecu- tively. Charges Mamie against Guy Curry dismissed for lack of evidence. The raises seven points *3 reversal, none of which are persuasive.
Carl Linell argues the triаl court abused its discretion
by not
one of
excusing
the
jurors
cause. The juror had
indicated on a questionnaire
that his business had been
robbed and there had been acts of violence
his
against
family. When
if
asked
these events would make him
predisposed
another,
about crime one
way
the juror
“No,
this,
responded,
is,
in a case like
as serious as it
certainly wouldn’t be predisposed.” He said that he was not
biased and would be fair and impartial. Appellant contends
there is a clear assumption that the juror was biased and as
he had used all his peremptory challenges,
it was reversible
error tо hold a biased juror
The
competent.
cases appellant
cites to support his contention involved
rather
implied,
than
actual, bias. Implied bias arises by
implication
law and its
liberally construed in criminal cases. See Ark. Stat. Ann.
43-1920;
Beed v.
898 (1980);
§
Henslee
An
(1971).
Appellant was asks that we assume such bias was present. juror on the issue and his questioned responses satisfactory to to the trial On review we are not judge. рosition bias, or assume actual that the trial court’s discretion say was abused in otherwise. holding
The second and third are one. arguments essentially Linell contends his cross examination Carvin accomplice on Thompson inconsistent statements about prior him shooting restricted and this denied unduly to be сonfronted with the him under the witnesses against Sixth Amendment to the Constitution. The appellant that he complains should have been to cross permitted examine the statements out for point the incorrect details in each how Thomp- statement and son’s story as he changed was fed information the pоlice. Evidence, He cites Arkansas Uniform Rules of Rule 613 (b) *4 previous and cases1 to his Rule 613 support position. (b) provides pertinent part:
(b) Extrinsic Evidence of Prior Inconsistent Statement of Witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an to or opportunity explain deny the same and the opposite is afforded an party oppor- thereon, to him tunity interrogate or the interests of justice otherwise require.
Neither
the rule nor the cases
the
Rule
support
arguments.
613 (b)
provides
the introduction
of
inconsistent
prior
State,
929,
(1956);
v.
1Eddington
Comer
v.
Ark.
225
statements and the witness the opportunity deny to statements, the which was done this explain case. cases cited of support theory application the Rule only (b) 613 and neither the nor those statute cases give for the of cross support type appellant argues examination is appropriate.
All prior statements read to which he Thompson, acknowledged and admitted were not true. He cross examined on the circumstances the statements surrounding and the court allowed considerable latitude before limiting the the questioning, including repeated suggestion Thompson’s statements were In by influenced the police. State, Beed v. 609 898 a similar (1980), 271 S.W.2d was made argument by the as to undue restriction witness, of cross examination the while state’s impeaching the victim. The trial the court sustained to a objection question it found repetitious and we argumentative and upheld the ruling. We noted Unif. R. Evid. gives 611 (a) trial court reasonable control over the mode of interro- gating so witnesses as to avoid needless of time consumption and protect the witness from harassment. The appellant provided has no nor supporting does he show authority, how his defensе would been have fostered line by this The issue questioning. he wanted was brought before the most that can be said of the he is that was point permitted not question as as he have extensively might liked. But that not unlimited where discretion abused.
Appellant suggests that was entitled to introduce evidence of other robberies committed Carvin for which the state had elected not to file But neither charges. nor proffer ruling we will appear abstract and not consider the argument. Rule (d) Supreme 9 Rules Court Court A Appeals. dams v. 276 1097, 594 (1982); S.W.2d 828 Byers App. (1980); Vail v. Ark.App. (1980); Ellis v. Ark.App. *5 309 (1979). Two other closely related treated as one: points are been motion for directed verdict should have Appellant’s a of Carvin granted testimony accomplice, because the the was not corroborated and because Thompson, sufficiently did not the are arguments the evidence verdict. support however, to as there was substantiаl evidence lacking, verdict with the appellant’s the and connection support the crime established beyond supplied by was that by proof accomplice.
Carvin testified that and the appellant he had been drinking beer and dominos with Mamie playing at Eva Cato’s house on Sometime Guy Curry January 12. dark, Mamie, said, around to he left to a go and store He and Linell liquor shotgun had a Highway 79. had a while was the pistol Guy Curry liquor Mamie store decided to rob someone. After Mamie they walking to Guy Eva house back Curry Cato’s went and waited they near the Bar and When a truck pickup pulled Grill. Linell both shot of the (the Mishos) truck occupants third individual who came out of the bar to (Patterson) investigate noise. ran house They back to Eva Cato’s victims, with the and billfold of the where purse they removed their which clothing, Guy Curry Mamie concealed in a bathroom purse cabinet. The behind a placed couch was аnd later retrieved by Linell. statute, relies on our
Appellant Ark. Stat. Ann. 43- § 2116 (Repl. 1977):
A conviction be cannot had in upon case felony of an testimony accomplice unless corroborated by other evidence tending with connect defendant offense; of the and the commission corroboration is not sufficient if merely it shows offense committed, Provided, and the circumstances thereof. That misdemeanor cases a conviction be had upon an testimony accomplice.
The test for determining sufficiency corrobora- whether, ting evidence if the testimony the accomplice other, is disregarded, therе evidence independent establish the crime its and connect the defendant with
168 435, State, 16 S.W.2d
commission. Henderson v.
652
279
697,
State,
(1960).
Affirmed.
Purtle Hollingsworth, dissent. JJ., Purtle, I. I believe the trial Justice, dissenting. John court limited unduly Thomp- cross-examination witness son. In order to out the issue I set place proper perspective what I to be the perceive error. The witness and co-defendant had made several statements about the crime. The prior witness admitted that the statements were untrue and the then following took place: I would like to *7 the statement go through Defense:
and we give various versions he because know gave that he was told it and he happen way couldn’t his in with brought conformity testimony prosecu- tion theory.
State: Mr. Mr. if he McKissic ask made each and every statement and once he he says it made to the next one. But go he is not entitled to cross-examine him on these statements.
Court: Your Mr. objection is well taken. McKissic him if you may ask he state- made prior inconsistent ments. He can either admit or them but deny you may not cross-examine If on statements he knows to be false. says statement is true cross-examine you may him on it.
I do not to be in understand the of the trial court ruling with the law and our We stated keeping prior opinions. ‘‘ State, 409, Miller v. Ark. (1980): 601 845 269 S.W.2d of free and unfettered of the accuser right cross-examination the accused is basic to our In Miller we by system justice.” State, 1152, from Smith v. Ark. 143 190 200 quoted (1940) as follows: ‘‘The of cross-examination part a substantive and right, important and a most valuable one.” Both Miller and Smith wеre reversed because restrictions on should cross-examination. The appellant have full trust opportunity credibility test the and worthiness of a witness. Rhodes v. 634 276 (1982); v. 590 S.W.2d 107 267 Gustafson Both Rhodes and were re (1979). 853 Gustafson it and we should do have reversed before always versed. We again. dissenting. Appellant P. A. Hollingsworth, Justice v. us to oveturn our Rector
urges ruling 280 individuals with con- 168 because (1983) 659 S.W.2d were excluded scientious to the death objections penalty 170 that he was asserts in his trial. Appellant participating
from Amendments Fourteen under the Sixth and denied his rights a determined his guilt to have to the federal constitution dissent from agree of the community. cross-section fair for this reason. the majority opinion drawn from a fair that a be The mandate not unique community cross-section of the representative 155 Hall v. to Arkansas law. 259 Ark., Hutto, 1975), (E.D. v. Supp. 394 F. 1278 (1976); Sanford Stebbins, Cir., v. (8th 1975); affirmed 523 F.2d Jewell Ark., States The United 1969). F. Supp. (E.D. Smith concept. this has affirmed frequently Court Supreme Texas, Pac. Co. Thiel v. Southern 311 U.S. (1940); In Taylor Peters v. U.S. 493 U.S. (1946); Kiff, 407 Louisiana, that “the the Court held U.S. (1975), cross-section a representative selection of a from petit jury of the Sixth component is an essential community *8 trial.” Amendment to a right jury from a fairly drawn to be tried a by jury for a is critical community cross-section of the reрresentative of variety reasons: exercise of of a is to j ury guard against
The purpose available the commonsense make arbitrary power —to against a community hedge of the as judgment and in preference overzealous or mistaken prosecutor or or overconditiоned perhaps professional biased response. Louisiana,
Duncan v.
Community participation over, law, with our is criminal more consistent only to public but is heritage democratic also critical criminal justice confidence fairness of the system. Restricting only speсial groups service to jury roles segments major identifiable excluding playing in the cannot be the constitu- with community squared tional trial. concept
Taylor, supra. 419 U.S. at 530-531. in Rector disagree by majority with the statement
that: that has served its jury system purpose admirably not to be
throughout
the nation’s
twisted
history ought
out of
for the benefit of
least
persons
those
shape
entitled to
been
favors. It has
the law
special
always
Arkansas,
when the
punishment
mandatory,
except
the same
who have the
jurors
responsibility
or innocence must also shoulder
determining guilt
burden of
punishment. That
as it should
fixing
be, for the two
necessаrily
are
interwoven.
questions
isIt
conceivable that the law has
in this area to the
developed
that it is
point
for the
permissible
jurors
State to bar
with
conscientious
to the death
from
objections
penalty
serving
Illinois,
on sentencing juries.
Witherspoon