Aрpellant was charged and found guilty of the murder of Donnie Edward Douglas on December 21, 1974, while engaged in the perpetration of the crime of rape of Sherry Douglas in violation of Ark. Stat. Ann. § 41-4702 (A) (Supp. 1973). He was sentenced to life imprisonment without parole. He seeks reversal of the judgment of conviction on 15 grounds. We find no basis for reversal of this judgment on any of them or on any objection made during the course of the trial. We shall review the points for reversal argued by appellant in the order raised by him and state the facts disclosed by the evidence only to the extent necessary for proper treatment of them.
I
THE COURT ERRED IN REFUSING TO SET BAIL.
Appellant moved that the court set bail pending trial. He admits in argument
II
THE TRIAL COURT ERRED IN OVERRULING DEFENDANT’S MOTION THAT JURORS WHO WOULD NOT CONSIDER THE DEATH PENALTY NOT BE EXCUSED FOR CAUSE IN THAT PART OF THE TRIAL AT WHICH DEFENDANT’S GUILT OR INNOCENCE WOULD BE DECIDED.
Ill
THE COURT ERRED IN OVERRULING DEFENDANT’S MOTION FOR A ONE WEEK CONTINUANCE IN ORDER TO PRESENT EVIDENCE THAT A JURY COMPOSED ONLY OF PERSONS WHO WOULD CONSIDER THE DEATH PENALTY IS MORE LIKELY TO CONVICT THAN IS A JURY COMPOSED OF A CROSS SECTION.
IV
THE COURT ERRED IN OVERRULING DEFENDANT’S MOTION FOR PAYMENT OF TRAVEL EXPENSES AND WITNESS FEES TO EXPERT WITNESSES WHO WOULD TESTIFY THAT A JURY COMPOSED ONLY OF PERSONS WHO WOULD BE WILLING TO CONSIDER THE DEATH PENALTY IS MORE LIKELY TO CONVICT THAN IS A JURY COMPOSED OF A CROSS SECTION.
This case was set for trial in March, 1975, but continued until April 28, 1975, in order to permit appellant’s attorney to prepare for trial. On April 24, 1975, appellant moved in limine that prospective jurors who are opposed to, and who would under no circumstances vote for, the death penalty not be excused for cause in that portion of the trial at which the defendant’s guilt or innocence was to be determined on the ground that a jury composed of only persons who would consider the death penalty would be more likely to convict him than would a jury composed of a cross-section which included persons who would refuse to consider the death penalty and that trial before a jury composed of persons who would be willing to impose the death penalty would deny him a fair trial and otherwise violate rights guaranteed him by the due process clauses of the Fifth and Fourteenth Amendments to the Unitеd States Constitution and the due process clause of Art. 2 § 8 of the Arkansas Constitution. By oral amendment, appellant also invoked the constitutional guaranties of right to trial by an impartial jury in the Sixth Amendment to the United States Constitution and Art. 2, § 10 of the state constitution. Motion was denied. In passing, it appears to us that failure to excuse jurors who would be unwilling to consider the death penalty under any circumstances could, in effect, nullify our death penalty statute, because it
In effect, appellant recognizes the impact of the holding in Witherspoon on his contention, but says that he was prepared to make the showing which was lacking in Witherspoon. On April 24, 1975, at 12:43 p.m., appellant filed his motion for a continuance from April 28 to May 5 to enable him to obtain the attendance of Dr. Daniel Taub, a psychologist of Springfield, Missouri, who he alleged was employed at the Medical Center for Federal Prisoners there. On the same date, appellant filed a motion asking that the court order the Treasurer of Sebastian County to pay the $500 witness fee of Dr. Taub, along with his travel expenses, alleging that this doctor had indicated in a telephone, conversation with appellant’s attorney that, in the doctor’s professional opinion, a jury composed entirely of persons who would be willing to impose the death penalty would be more likely to convict a defendant than would a jury which included some who would not consider the death penalty. It was further alleged that appellant’s attorney had attempted, without success, to obtain the testimony of expert witnesses locally and had been informed that no local experts had any experience in the area.
Appellant also moved on April 25, 1975 that the case be continued to May 5, 1975, in order that he might obtain the attendance of Dr. Faye Goldberg, a psychologist, employed by the University of Chiсago in Chicago, Illinois, who had indicated in a telephone conversation with appellant’s attorney that she held the same professional opinion as that attributed to Dr. Taub and that her opinion would be supported by testimony in accordance with an article written by the witness, a copy of which was attached to the motion. The article was entitled, “Toward Expansion of Witherspoon, Capital Scruples, Jury Bias, and Use of Psychological Data to Raise Presumptions in the Law” and reprinted from the Harvard Civil Liberties Law Review, Vol. V, No. 1, January, 1970, pp. 53-69.
All the motions regarding these points for reversal were heard by the circuit court on April 28.
The granting or denial of a motion for continuance to obtain the attendance of an absent witness lies within the sound judicial discretion of the trial judge, and his action will not be reversed on appeal in the absence of such a clear abuse of that discretion as to amount to a denial of justice. Figeroa v. State,
One of the critical factors in the consideration of such a motion is the diligence of the party seeking the continuance in obtaining the testimony or the attendance of the witness. Ark. Stat. Ann. §§ 27-1403 (Repl. 1964), 43-1706 (Repl. 1964); Thacker v. State, supra. In denying the motion, the circuit judge pointed out that appellant’s attorneys, the Public Defenders, were appointed on January 2, 1975, that the case was continued for one month to permit them to prepare for the trial, that he had specifically inquired of the Public Defender’s
In order to obtain a continuance because of the absence of a witness, it is necessary that the movant support his motion by affidavit stating what facts affiant believes the witness will prove and not merely the effect of such facts in evidence. In the case of an expert witness, this would at least require that the basis of his opinion be stated. The requirement was not even substantially complied with in the case of Dr. Taub. Assuming however, for the purpose of his motion that attaching the article written in 1970 by Dr. Goldberg was a sufficient statement of facts to which the witness would testify, it is not verified by anyone’s affidavit, as required by statute. Nor does anyone, by affidavit, express the belief that the facts stated are true. Furthermore, the materiality of the factual background for the testimony of the expert witness does not appear on the face of the motion, because her opinion seems to be based on 1966 data. The failure to file the required affidavit is another significant factor in appellate review of the trial court’s action in denying a motion for continuance. Thacker v. State, supra; Brown v. State,
If all the other requirements for a continuance had been met, the testimony of Dr. Goldberg could not well be the basis for appellant’s position. Appellant argues that the United States Supreme Court, in Witherspoon, invited the same kind of evidence Dr. Goldberg could have furnished. Appellant points out that in rejecting the precise argument he advances, the United States Supreme Court said that the data adduced by the petitioner there was toо tentative and fragmentary to establish the premise and that the court could not conclude on the basis of the record before it, or as a matter of judicial notice, that exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or innocence and substantially increases the risk of conviction. It seems evident to us from footnotes in both the Witherspoon and Bumper opinions that the very article which appellant relies upon as indicative of Dr. Goldberg’s probable testimony was among the fragmentary scientific data rejected by the Witherspoon court as insufficient.
Appellant has failed to show that there was an abuse of the trial court’s discretion in denying his motion for continuance to permit him to make a showing of at least questionable relevance on the matter of jury selection. We perceive no significant difference, insofar as the trial court’s discretion is concerned, between this case and Blanton v. State,
V
THE TRIAL COURT ERRED IN ALLOWING THE PROSECUTION TO ASK A PROSPECTIVE JUROR IF HE WOULD IMPOSE THE DEATH SENTENCE.
We find no error. Appellant argues that the asking of the follоwing question of a prospective juror by the prosecuting attorney was error: “I believe your answer was that you would consider the
VI
THE TRIAL COURT ERRED IN REFUSING TO STRIKE FOR CAUSE A PROSPECTIVE JUROR WHO STATED THAT, GIVEN A CHOICE OF VOTING CONVICTION OF CAPITAL FELONY MURDER OR ACQUITTAL, HE COULD NOT VOTE FOR ACQUITTAL, IF THE EVIDENCE PROVED MURDER BUT DID NOT PROVE CAPITAL FELONY.
We do not read the record on this point as appellant does. The prospective juror had never served as a juror before. It is clеar to us that he did not fully understand questions by appellant’s attorneys about the requirement that the state prove both murder and its commission in the perpetration of rape and felt that proof of murder alone would be sufficient for a conviction and for application of the capital felony murder statute. On the basis of these answers, appellant challenged the juror for cause. The prosecuting attorney then took up voir dire examination. Here again, the juror was not able to distinguish between murder and capital felony murder in his answers. He did state, however, that he would follow the court’s instructions. In response to further questioning by appellant’s attorneys, the juror answered that he could not vote to acquit the defendant if the state failed to prove perpetration of a rape beyond a reasonable doubt but proved beyond a reasonable doubt that he committed murder. Appellant again challenged the juror for cause. The trial judge then explained that there were different degrees of murder, that only capital felony murder could carry a death penalty, and that the court might or might not give instructions on first degree murder along with a capital felony murder instruction. The judge then asked if the case were submitted only on the capital felony murder charge and the stаte failed to prove the rape beyond a reasonable doubt, whether the juror would still vote to find the defendant guilty of capital felony murder. The juror responded, “Not necessarily, no.” The court then asked whether the juror could listen to the evidence and return his verdict on that evidence and the instructions given, even if the juror did not agree with the instructions, and received an affirmative answer. Thereafter, the court denied the challenge.
VII
THE COURT ERRED IN REFUSING TO STRIKE FOR CAUSE A PROSPECTIVE JUROR WHO STATED HE HAD AN OPINION WHICH IT WOULD TAKE PROOF TO REMOVE.
Here again, we evaluate the record differently. The juror did equivocally say that he had an opinion based upon newspaper and television accounts of the crime. When asked if he had an oрinion, he answered, “Well, yes and no. It just — I’d have to hear the evidence, you know, of the case. I don’t have a set opinion on it, really, either way.” Upon pursuit of the point by appellant’s attorney, the juror stated that he would “follow what the witnesses and the court decide” and that it would not require any proof other than what he
THE COURT: Did I understand you to say — If I misquote you, please tell me — that you would follow the law and the evidence and the instructions?
A. Yes.
******
THE COURT: Would you take into consideration anything else?
A. No, sir.
THE COURT: Would you tаke into consideration your opinion, regardless of how lightly held or strongly held it is at this time?
A. (Nods head no).
We find no abuse of the trial court’s discretion in denying the challenge for cause.
VIII
THE COURT ERRED IN OVERRULING DEFENDANT’S OBJECTION AND ALLOWING A WITNESS TO TESTIFY TO TELEPHONE CONVERSATIONS WHICH OCCURRED OUTSIDE THE PRESENCE OF THE DEFENDANT.
The witness was Modine Sosebee, a friend and neighbor of Donnie Douglas and Sherry Douglas, the victim of the murder and the alleged victim of the rape respectively. The friendship was close. The two couples went to the same church, as did Mr. and Mrs. Edward Douglas, Donnie’s father and mother, and the parties visited occasionally on the telephone. The Douglases owned a hog and had planned to butcher it at the Sosebee residence, one-half mile across the field from the Donnie Douglas house, on Saturday, December 21, with the help of the Sosebees. Mrs. Sosebee testified that she received a telephone call about 6:00 a.m. on that day, from Sherry, who said that they would be unable to butcher the hog because Donnie had gone to Alabama with Roger Pierce (Donnie’s stepbrother) to pick up Angie’s (Roger’s sister’s) car. Mrs. Sosebee said that on the next day, Sunday, Bertha Douglas, Donnie’s stepmother, called on the telephone. An objection to this witness’ relating the statements of Bertha (Mrs. Edward) Douglas was sustained. The objection was on the grounds of hearsay and the right to confrontation. The objection on the right to confrontation was overruled, since it was disclosed by the state’s attorney that Bertha Douglas would be a witness. The state’s attorney also stated that the telephone conversation was not offered to show the truth of the statements but to show that the conversation took place. The court then overruled the objection. The witness then said that Mrs. Douglas asked if the kids (Donnie and Sherry) were there, and said there had been a death in the family and that members of the family had been trying to reach Donnie and Sherry the day before without success. Mrs. Sosebee said that she then reported the substance of her conversation with Sherry on Saturday morning, and that Mrs. Douglas replied that Donnie and Roger did not go to Alabama and then said, “Something has happened. We’re going to go look for those kids. Roger got back yesterday morning and Donnie wasn’t with him.” The court then admonished the jury that this conversation was not offered for the purpose of showing its truth but merely to show that it had taken place.
Appellant only argues the hearsay objection here. In considering this objection, it is necessary that we consider some of the background that had already been developed. Sherry Douglas had testified about the plans to butcher the hog and that Donnie’s parents knew of the plans. She had also testified that Donnie and Roger had planned tо go to Alabama to pick up an automobile, but that Pierce had actually left without Donnie on Friday. She said that appellant had killed her husband and raped her during the night, and directed her to call Mrs. Sosebee and tell her that Donnie had changed his mind about killing the hog on Saturday but she had told appellant that she should say that Donnie had gone to
Mrs. Bertha Douglas later testified that on Saturday she had received a telephone call concerning the whereabouts of Donnie and Sherry Douglas and had called Mrs. Sosebee, who told her of the telephone call from Sherry. Mrs. Douglas said that, since she knew that Roger had gone to Alabama alone and had returned with the car on Sunday morning, her husband then went to Donnie’s home, but he soon returned, and, as soon as she could get someone to babysit with a granddaughter, both of them went to the residence of Donnie and Sherry. It was then about 5:00 p.m. She said Donnie’s car was gone but that a Chevrolet car was sitting there. After attending to hogs, chickens, ducks and dogs on the place, Mr. Douglas went to the front door, and later both went to the back door, where they found a hole chopped in the door that had not been there when Mr. Douglas came over in the morning. She would not permit her husband to break in. According to her, they then went to church and delivered some Christmas gifts, but she continued to worry about Donnie and Sherry and called a deputy sheriff, who with another officer went to the Donnie Douglas house along with the elder Douglases. There they found Donnie’s car parked at the house, his body on the floor, and appellant asleep on a bed to which Sherry, who was nude, wаs tied.
Since Mrs. Douglas did testify, the right of confrontation was preserved. No objection was made to the testimony of Mrs. Douglas when she related the telephone conversation with Mrs. Sosebee. In view of this failure to object, the admonition given by the trial court, the relevancy of the telephone conversation to the actions of the elder Douglases leading to the discovery of their son’s body and the insignificant bearing the statements of Mrs. Douglas had on the issues in the case, the error, if any, in admitting this evidence was harmless.
IX
THE COURT ERRED IN OVERRULING DEFENDANT’S OBJECTION AND ALLOWING THE PROSECUTOR TO ASK LEADING QUESTIONS ON DIRECT EXAMINATION.
These objections were directed at the examination of Richard Lanier, a service station operator who had seеn appellant and Sherry Douglas at his station on Saturday, December 21, on two occasions. We have reviewed the record as abstracted and are unable to say that the trial judge abused his discretion.
X
THE TRIAL COURT ERRED IN OVERRULING DEFENDANT’S MOTION FOR MISTRIAL AFTER THE STEPMOTHER OF THE DECEASED BROKE DOWN ON THE WITNESS STAND AND ASKED WHY ANYONE WOULD WANT TO KILL THE DECEASED.
XV
THE COURT ERRED IN REFUSING TO DECLARE A MISTRIAL WHEN THE WIFE OF THE DECEASED, AND ALLEGED VICTIM OF RAPE, RAN FROM THE COURTROOM CRYING DURING THE PROSECUTOR’S SUMMATION.
These points relate to emotional reactions of a witness on the one hand and a victim on the other. At the conclusion of her direct examination, Mrs. Douglas identified appellant as the person brought out of her stepson’s house when she and her husband went there with the officers by pointing him out. Immediately the prosecuting attorney asked that the record show that she had identified appellant and Mrs. Douglas, crying, exclaimed:
Oh, my God! Why, Lord, why Donniе, why Donnie, why? Why would anybody want to kill him (crying).
Appellant’s prompt motion for a mistrial was denied but his subsequent alternative motion for an admonition to the jury was granted by the following statement:
Any remarks that the witness made voluntarily that were not in response to questions are not considered evidence and will be disregarded by the jury.
The record is not so clear as to the actions of Sherry Douglas. Appellant’s attorney stated, in moving for a mistrial before making his closing argument, that Sherry Douglas, who had been sitting near the jury box, had run from the courtroom crying during the prosecuting attorney’s opening argument and that he could hear her sobbing, crying and talking outside the courtroom after her еxit and was sure that the jury had. The prosecuting attorney was sworn and testified that he was within three or four feet of the jury when the incident was supposed to have occurred and that he did not hear Sherry Douglas crying or saying anything, although he was aware that someone had left the courtroom. Appellant testified that he saw Sherry Douglas get up and leave the court; oom crying and heard her crying until someone closed the door behind her. Thereafter, he said, he heard her sobbing. This motion was overruled. The trial judge was not asked to admonish the jury.
Emotional outbursts by the relatives of murder victims and by victims of crimes are not unusual and are difficult to control. In these instancеs there were no accusatory remarks or remarks directed at the accused. The trial judge must have been aware of all that took place in his presence and was in a better position to evaluate the impact of these occurrences than anyone else. He had a wide latitude of discretion in the control of the trial. Utilization c/ the extreme and drastic remedy of declaration of a mistrial should be a last resort. We find no abuse of discretion in the denial of motions for a mistrial.
XI
THE COURT ERRED IN REFUSING TO DIRECT A VERDICT OF ACQUITTAL AS TO CAPITAL FELONY MURDER.
Appellant here contends that the evidence is insufficient to present a jury question as to his guilt of capital felony murder saying that, even whеn viewed in the light most favorable to the state, it did not show that the killing was committed by a person (appellant) engaged in the perpetration of rape. He tacitly concedes that the evidence on behalf of the state, if believed, is sufficient to show tfiat he killed Donnie Douglas and that he raped Sherry Douglas, even though he steadfastly denies having done either b it he argues that the evidence does not show that the kii’ing was done in order to accomplish the rape.
Of course, the necessary evidence may be circumstantial. The circumstances shown were sufficient basis for a reasonable mind to conclude, without resort to speculation or conjecture, that the killing was done while appellant was engaged in the perpetration of the crime of rape. A review of the evidence in the light most favorable to the state shows could come and drink a beer. They took Venable to his mother and stepfather about a city block away from the Douglas residence. He was a frequent visitor to the Douglas home after he had come to trade cars with Donnie and had met Sherry some two or three weeks prior to the slaying of Donnie. Lanny Venable, the Sosebees and the elder Douglases knew of the plan to butcher the Douglas hog at the Sosebee residence on Saturday, December 21. All of them knew about the plans of Donnie Douglas and Roger Pierce to go after an automobile in Alabama. On Friday night Lanny Venable went with Donnie and Sherry Douglas to the Grand Avenue Lounge where Donnie played in a band. While there, Venable sat at the table with Sherry. He drank 10 or 12 cans of beer and she drank Sprite. The lounge closed at about 12:30 a.m. on Saturday and the three went to one or more places in search of drugs, without success.
Venable testified that Sherry killed Donnie whеn he plugged in the tape, using Venable’s rifle. He admits the frequent acts of i itercourse, except for the oral sex, but said that there was no force or compulsion involved. He explained that he tied Sherry to the bed as part of a prearranged plan for him to get away and for her to say that someone had broken into the house, shot her husband and raped her.
All the circumstances certainly afforded a reasonable basis for finding that Venable killed Donnie Douglas to enable him to perpetrate the crime of rape on Douglas’s wife. It would be difficult to assign any
XII
THE COURT ERRED IN REFUSING TO SUBMIT NO HIGHER AN OFFENSE THAN SECOND DEGREE MURDER TO THE JURY.
Appellant moved for a directed verdict as to first degree murder and mоved that no issue be submitted on any greater offense than second degree murder. There was no prejudicial error as there was sufficient evidence to support the conviction of capital felony murder.
XIII
THE COURT ERRED IN ALLOWING THE STATE TOXICOLOGIST WHO STATED THAT HE WAS NOT A PHARMACOLOGIST OR AN EXPERT TO TESTIFY TO INFORMATION HE HAD AS TO HOW LONG CERTAIN DRUGS WILL REMAIN IN THE BLOODSTREAM.
The State Toxicologist was subpoenaed and presented as a witness by appellant. The witness testified that he had analyzed samples of blood taken from the body of Donnie Douglas. He found methamphetamines, Qualude, also known as Methoqualone, phenobarbitol and a blood alcohol content of 0.07 percent by “weight volume” of alcohol. He did not do a quantitative analysis to determine the amount of drugs present. On cross-examination, he said that since he was not a pharmacologist he could not say now long the drugs could have been in the bloodstream when the test was made, except in relation to information he had gained in order that he might carry on his job as an analyst. When asked what that information was, appellant’s attorney’s objection was overruled on the basis that the question was proper cross-examination. The witness then stated that, in cases in which he had performed analyses, there were those in which, to the best of his knowledge, the phenobarbitol had been taken as long as 20 days before the tests were made.
The relevance of the witness’ testimony is not readily apparent. Someone shot and killed Donnie Douglas as he changed a tape on his stereo tape player. No one suggests that he had done anything at the time to provoke or invite an assault or that his death was caused by anything other than the gunshot wound. If the testimony related to mitigating circumstances, it is sufficient to say that the jury imposed the lesser punishment for capital felony murder. Assuming, however, that the evidence was admissible as a part of the res gestae, in view of the fact that the questions were propounded on cross-examination, and, in view of the discretion invested in the trial judge to control cross-examination and to determine the qualification of a witness to give opinion evidence, we find no abuse of discretion.
XIV
THE TRIAL COURT ERRED IN REFUSING TO INSTRUCT THE JURY THAT THE STATE MUST PROVE THE ELEMENTS OF A MURDER IN ORDER FOR THE DEFENDANT TO BE CONVICTED OF A CAPITAL FELONY.
Appellant argues that the court should have instructed the jury that they must find the elements of first degree murder, or at least all the elements of second degree murder before they could find appellant guilty of capital felony murder. Of course, in our view of the evidence, it sustains a conviction of capital felony murder, but appellant’s complaint here goes to the matter of instructions to the jury. Appellant relies upon commentary on the equivalent section of the new Arkansas Criminal Code, Ark. Stat. Ann. § 41 - 1501, effective January 1, 1976. Since this provision was not in effect at the time of the offense charged or the time of trial, we forego any abstract discussion of its construction. It is sufficient for the purposes of this case to say that we view the capital felony murder statute in existence at the time of this offense in the same light that we have heretofore viewed the felony murder statute. In that light,
We have, as in other cases involving the death penalty, reviewed the record for other objections made during the course of the trial and find none worthy of consideration.
The judgment is affirmed.