Bagley v. State
| Decision Date | 15 September 1969 |
| Docket Number | No. 5424,5424 |
| Citation | 247 Ark. 113,444 S.W.2d 567 |
| Parties | Emery Berryman BAGLEY, Appellant, v. The STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
Harold Sharpe and Henry Wilkinson, Forrest City, for appellant.
Joe Purcell, Atty. Gen., Don Langston, Mike Wilson, Asst. Attys. Gen., Little Rock, for appellee.
Appellant Emery Berryman Bagley was convicted of first degree murder and sentenced to death. Bagley and a companion hitchhiked a ride out of Memphis, Tennessee, and their benefactor was fatally shot as the three men drove through St. Francis County. Two written confessions of Bagley were introduced at his trial, both of which implicated him. The State's evidence was clearly sufficient to sustain a first degree murder conviction. However, there were errors committed by the trial court which call for reversal. We shall discuss those errors and, because of the probability of a new trial, comment on most of the other points advanced by appellant.
The court examined the jury on voir dire but first explained the nature of the charge, the degrees of homicide, and the punishment. Comment was made on the nature of the punishment for first degree murder in these words:
The law fixes the punishment at death by electrocution unless the jury finds that there are extenuating circumstances which would justify life imprisonment instead of the death penalty. If the jury does not find extenuating circumstances it simply returns a verdict of guilty of murder in the first degree, and then the law requires that the court pronounce the sentence. If the jury finds extenuating circumstances they will return a verdict of guilty and fix the punishment at life imprisonment in the State Penitentiary.
Bagley's counsel timely objected (in chambers) to the statement as being a prejudicial misstatement of the law and requested that the court correct it in the presence of the jury. The court, in denying the request, took the position that its formal instructions which would follow the testimony would leave no doubt with the jury that it could 'certainly return any verdict they see fit.'
The court told the jury that if the defendant was guilty of first degree murder the punishment was death by electrocution unless the jury found extenuating circumstances which would justify the substitution of a penalty of life imprisonment. Ark.Stat.Ann. § 43--2153 (Repl.1964) says the jury 'shall have the right' in all capital cases to fix punishment at life imprisonment instead of death. The statute contains no such words or phrases as 'discretion' or 'extenuating circumstances.' When the Legislature created two forms of punishment for first degree murder it did not create two grades of the offense; it merely created a choice of punishment, that choice to be made by the jury. The only responsibility imposed on the court is that the jury is to be advised of its duty to select which of the punishments shall be imposed. When the court so advises the jury it 'has exhausted its powers in the premises, and any attempt on its part to go further and inform the jury that under certain circumstances it might impose death and under others life imprisonment would in effect usurp the prerogatives of the jury and be wholly improper.' Hernandez v. State, 43 Ariz. 424, 32 P.2d 18 (1934).
The State argues that if the trial court's remarks were erroneous, it is not shown that those members of the panel who heard the remarks actually sat on the jury. We concede that it cannot be determined with certainty just which jurors heard the remarks but it is clear to us, after careful perusal of the record, that a majority of the jurors who tried the case heard the court's statement about extenuating circumstances.
Additionally the State contends that any error was cured when the court explained the forms of verdicts and advised the jury to fill in the blanks as the jury saw fit. We cannot agree. The damage could have have been removed only by an equally positive statement of correction. The court's statement that extenuating circumstances must be produced to avoid the death penalty was clear and unequivocal; only a corrected statement of equal stature could have erased it.
Appellant contends that the court and prosecuting attorney, to appellant's prejudice, propounded an unnecessary number of inquiries to prospective jurors concerning their views on capital punishment. We cannot say the court abused its discretion. Some repetition was necessary because the first list of jurors was exhausted and additional jurors were necessarily called. Had the proper objection been made it is possible that the court would have reduced to some extent the number of repetitions. The attitude of the jurors toward capital punishment was needed for two purposes. First there were the challenges for cause, based on the decision in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). On the basis of Witherspoon, those jurors who would not consider returning a verdict of death could be removed for cause. Secondly, there was the responsibility of the prosecuting attorney for wisely making peremptory challenges. To so act he would naturally need to identify those jurors who had conscientious or religious scruples against the death penalty. Although Witherspoon held that such general objections to the extreme penalty were not grounds for challenging for cause, it certainly did not restrict the prosecutor in considering those factors in evaluating his peremptory challenges.
The widow of the victim testified that at the time of her husband's death she was pregnant and suffering from pneumonia. Appellant argues that the testimony was irrelevant and prejudicial. Clearly that testimony would only serve to arouse the sympathy of the jury. We suggest that it be avoided on retrial.
In one of the instructions the trial court read to the jury Ark.Stat.Ann. § 41--2246 (Repl.1964):
Burden of Proof.--The killing being proved, the burden of proving circumstances of mitigation, that justify or excuse the homicide, shall devolve on the accused, unless by the proof on the part of the prosecution it is sufficiently manifest, that the offense...
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...439 (CA9 1969); Segura v. Patterson, 402 F.2d 249 (CA10 1968); McCants v. State, 282 Ala. 397, 211 So.2d 877 (1968); Bagley v. State, 247 Ark. 113, 444 S.W.2d 567 (1969); State v. Walters, 145 Conn. 60, 138 A.2d 786, appeal dismissed, 358 U.S. 46, 79 S.Ct. 70, 3 L.Ed.2d 45 (1958); Wilson v.......
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