Marion Albert PRUETT v. STATE of Arkansas
CR 83-58
Supreme Court of Arkansas
April 30, 1984
Rehearing denied June 18, 1984.
669 S.W.2d 186
Steve Clark, Atty. Gen., by: Leslie M. Powell, Asst. Atty. Gen., for appellee.
JOHN I. PURTLE, Justice. This case comes to us on appeal from the Crawford County Circuit Court after a
The first seven points argued challenge the trial court‘s failure to grant a second change of venue and the selection of and failure to sequester the jury. The state did not oppose appellant‘s first motion for a change of venue. The court changed the site of the trial from Sebastian County to Crawford County. The change of venue was granted because of the extensive publicity surrounding this case. Voir dire of the jury commenced in Crawford County on August 27, 1982. Appellant‘s motion to sequester the jurors was denied. The trial court admonished the entire jury panel not to read or listen to or observe any news account of this case. The first panel was exhausted after five days. A supplemental panel was summoned and the appellant promptly moved to quash the supplemental panel because it had not received the admonition given to the original panel. The trial court denied the motion after a hearing. Appellant then moved for another change of venue and a continuance. These motions were denied by the court. After the appellant exhausted his peremptory challenges the jury was completed. The court overruled appellant‘s second motions to quash the jury panel and for a change of venue. The court rejected appellant‘s request to present evidence in support of these motions. It is undisputed that the appellant was forced to accept jurors he would have peremptorily challenged had he not exhausted those challenges. It is likewise undisputed that publicity was great in Crawford County as well as Sebastian County. However, the jury finally selected was qualified within the meaning of the Witherspoon doctrine. The purpose of a change of venue and voir dire of the jury is to insure that an accused receives a trial by a fair and impartial jury.
The first 11 jurors were selected from a 65 member panel. Eight members of the supplemental panel were examined before the twelfth juror was seated. The alternate
We have many times held that a change of venue lies within the discretion of the trial court. When it is determined that an accused can receive a fair and impartial jury trial the site of the trial is immaterial. Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982). Also, the decision whether to sequester the jury lies within the discretion of the trial court and the burden of proving that appellant did not receive a fair and impartial trial, because of the failure to sequester the jury, is upon the appellant. Ford v. State, 276 Ark. 98, 633 S.W.2d 3 (1982). We recognize that the bare statement of a prospective juror that he can give the accused a fair and impartial trial is subject to question. Haynes v. State, 270 Ark. 685, 606 S.W.2d 563 (1980).
The appellant‘s eighth assignment of error is the court‘s failure to grant a continuance. When the appellant was arraigned on June 14, 1982, he chose to represent himself. However, the court appointed counsel to stand by and advise the appellant. Appellant objected to the trial date set, August 30, 1982, contending that he needed to work on the appeal from his death sentence in Mississippi. Also, appellant‘s appointed counsel was then working on an appeal in another death case in that area. From the record we know that appellant‘s attorney, a public defender, is
The appellant challenges the death qualification of prospective jurors. We need not tarry on this argument as it was clearly answered in the case of Rector v. State, 280 Ark. 385, 659 S.W.2d 168 (1983).
Appellant‘s arguments 10 through 12 challenge the death penalty statute in Arkansas. The appellant filed a motion to quash the information, reduce the charge and reduce the penalty. All three motions were denied by the court. The argument that electrocution is cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution was rejected in Swindler v. State, 267 Ark. 418, 592 S.W.2d 91 (1979). The argument that the overlapping provisions of
Appellant next argues that the trial court erred in refusing to suppress appellant‘s statement or to delete portions of it. A motion to suppress the statement made by
It is argued that the court erred in refusing to suppress a firearm and bullets which were obtained by illegal search. The facts surrounding the search are as follows: When appellant was initially stopped for a speeding violation, he was unable to produce a driving license. He was then requested to show vehicle registration. He opened the door on the passenger side and looked into the glove compartment. An officer observed drug paraphernalia in the open glove compartment. He also observed a strap under the front seat which he recognized to be a part of a gun holster. The appellant was arrested for speeding, driving without a license, and possession of drug paraphernalia. The gun, which was in the holster, was a clear and present danger to the officers under the circumstances of this case. The drug paraphernalia was properly seized as it was clearly before the eyes of the officer. Gatlin v. State, 262 Ark. 485, 559 S.W.2d 12 (1977). We think the gun was within the “plain view” doctrine as enunciated in Coolidge v. New Hampshire, 403 U.S. 443 (1971) and Gatlin v. State, supra. Since we hold that the weapon and bullets were legally obtained it follows that the ballistics tests were proper evidence.
The appellant argues that the trial court improperly
Appellant argues that the court erred in allowing the state to question him on cross-examination about details of his prior convictions. By a motion in limine appellant sought to curtail the cross-examination on the grounds that it was a conviction that impairs credibility. The unique argument is that the appellant could impeach his own credibility, pursuant to
Appellant argues that a mistrial or admonition should have been granted when the prosecution asked a witness, “Do you put your patients under oath when you talk to them?” The witness was a clinical psychologist being cross-examined by the state. This occurred during the penalty phase of the trial. It is argued that the question amounted to a comment on the appellant‘s silence since the appellant did not testify in his own behalf during the first part of the bifurcated trial. Certainly it would be improper for the state to comment on the appellant‘s decision not to testify. Evans v. State, 221 Ark. 793, 255 S.W.2d 967 (1953). When a comment about an accused‘s silence is made before a jury by the prosecution a mistrial is proper. Prejudice is presumed in such cases. Adams v. State, 263 Ark. 536, 566 S.W.2d 387 (1978). This statement may have been prejudicial had it been made during the guilt or innocence stage of the trial. However, the statement could not have in any way contributed to the verdict of guilt in this case. Weaver v. State, 271 Ark. 853, 612 S.W.2d 324 (Ark. App. 1981). The court is in a position to note the manner of delivery of such statements and the inflections or emphasis used and is therefore in the better position to understand how the jury perceived it. Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982). We do not think it was prejudice to deny a mistrial or admonition during the penalty phase of the trial. Such statements should be avoided in the future.
The appellant contends the court erred in refusing an instruction during the penalty stage of the trial and that the death sentence verdict was based on passion and prejudice. The rejected instruction was to the effect that if he were sentenced to life without parole he would serve the rest of his life in prison. We have many times held that the trial court should not attempt to explain matters concerning parole or executive clemency to a jury. Andrews v. State, 251 Ark. 279, 472 S.W.2d 86 (1971). We are unable to find any evidence in the record to reflect that the verdict in this case was the result of passion and prejudice.
In accordance with the provisions of
Affirmed.
ADKISSON, C.J. and HICKMAN, J., concur.
HOLLINGSWORTH, J., dissents.
RICHARD B. ADKISSON, Chief Justice, concurring. “If the testimony supports the conviction for the offense in question and if the sentence is within the limits set by the legislature, we are not at liberty to reduce it even though we may think it to be unduly harsh.” Osborne v. State, 237 Ark. 5, 371 S.W.2d 518 (1963). See also, Miller v. State, 230 Ark. 352, 322 S.W.2d 685 (1959) and Hall v. State, 113 Ark. 454, 168 S.W. 1122 (1914). Although this is not an inexorable rule, it is the accepted rule of law in this state. Roberts v. State, 281 Ark. 218, 663 S.W.2d 178 (1984).
Anticipating that the United States Supreme Court would require comparison of sentences in death cases pursuant to the Eighth Amendment, this Court agreed to compare sentences in such cases. Collins v. State, 261 Ark. 195, 548 S.W.2d 106 (1977), cert. denied, 434 U.S. 878 (1977). However, the United States Supreme Court held otherwise in Pulley, Warden v. Harris, No. 82-1095 (Jan. 23, 1984), stating that the Eighth Amendment of the United States Constitution does not require an appellate court to compare death sentences with penalties imposed in similar cases.
Therefore, this Court should now revert to its long established position as reflected in Osborne and refuse to
DARRELL HICKMAN, Justice, concurring. This concurrence is addressed to the suggestion that we abandon comparative review in death cases.
In Collins v. State, 261 Ark. 195, 548 S.W.2d 106 (1977), cert. denied 434 U.S. 878 (1978), we took upon ourselves the obligation to review death sentences comparatively. Comparative review was not required by Arkansas law but was done to insure that the death sentence in Arkansas would not be freakishly imposed. That procedure has been used to reduce several sentences of death to life without parole. Henry v. State, 278 Ark. 478, 647 S.W.2d 419 (1983); Neal v. State, 274 Ark. 217, 623 S.W.2d 191 (1981); Sumlin v. State, 273 Ark. 185, 617 S.W.2d 372 (1981).
It is suggested that because the United States Supreme Court has ruled that the constitution does not require a comparative review, we should abandon the practice. Such a break would be a breach of faith by this court and would remove a check against the arbitrary and capricious imposition of the death penalty. In my judgment, the laborious and serious effort this court has made in reviewing death sentences to insure that decisions of the United States Supreme Court are followed will eventually work to the good of Arkansas and its legal system. When we approve a death sentence, it receives every consideration, not just a rubber stamp approval, and by all rights a great majority of our decisions should withstand scrutiny by other courts that use any reasonable standard of review. If we abandon our standards in the least, we stand to lose some credibility. In any event, we have our duty and responsibility regardless of what other courts may do.
Some thirty states use some form of comparative review. Pulley v. Harris, —— U.S. —— (Jan. 23, 1984) (Brennan, concurring). A study of all the opinions in Pulley indicates it is a desirable practice. We should not consider reneging on our obligation.
DUDLEY, J., joins in this concurrence.