Beed v. State, CR

• Citation: 609 S.W.2d 898,271 Ark. 526
• Decision Date: 22 December 1980
• Docket Number: No. CR,CR
• Parties: Bennie BEED, Jr., Appellant, v. STATE of Arkansas, Appellee. 79-229.
• Court: Supreme Court of Arkansas

Page 898

609 S.W.2d 898

271 Ark. 526

Bennie BEED, Jr., Appellant, v. STATE of Arkansas, Appellee.

No. CR 79-229.

Supreme Court of Arkansas.

Dec. 22, 1980.

Thomas R. Newman, Texarkana, Tex., for appellant.

Steve Clark, Atty. Gen., by Victra L. Fewell, Asst. Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Chief Justice.

Appellant Bennie Beed, Jr., was found guilty of rape, aggravated robbery and kidnapping (class C) in a jury trial on June 12, 1979, and sentenced to life for rape, 50 years for aggravated robbery and 10 years for kidnapping. Appellant lists 11 points for reversal. Some of them include multiple assertions of error. We find reversible error in the jury selection and in the failure of the trial court to suppress evidence obtained by a search. In addition to these points, in this opinion we will treat only those points that will likely arise on retrial.

Appellant, under the heading of a single point, challenged the trial judge's excusal of Buck Walker and R. F. Stewart for cause, his failure to excuse Richard Bolton for cause and the misuse of peremptory challenges by the state to exclude Negroes from jury service. Appellant says that Stewart and Walker were persons of the Negro race, and that two others of that race were excused by the state by peremptory challenge. The record, however, does not disclose the race of the prospective jurors. Assuming, however, that appellant states the race of the jurors correctly, we find no error except as to juror Bolton. As far as this record discloses, the state's exercise of peremptory challenges has not been shown to be systematic. The mere fact that the state peremptorily challenged all the Negroes on a petit jury panel does not constitute a showing that appellant's constitutional rights were violated. Rogers v. State, 257 Ark. 144, 515 S.W.2d 79; Brown v. State, 248 Ark. 561, 453 S.W.2d 50; Jackson v. State, 245 Ark. 331, 432 S.W.2d 876; Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). Appellant was not entitled to any particular juror and is in no position to raise any question as to the jurors excused for cause, because he interposed no objection. Clark v. State, 264 Ark. 630, 573 S.W.2d 622.

The excusal of Richard Bolton for cause is another matter. As the state points out in its brief, it must be considered in and of itself as a matter of law and not in juxtaposition with the excusal of other jurors. Appellant relies on Ark.Stat.Ann. § 43-1920 (Repl.1977) which provides that a challenge for implied bias may be made where the juror is related to the person on whose complaint the prosecution was issued and Ark.Stat.Ann. § 39-105(e) (Supp.1979) which excludes from petit jury service any person who is prevented by any relationship from acting impartially. He points out that juror Bolton's brother Bill was the police officer to whom the complaining witness made her original complaint, a portion of which, including the description of her assailant, was related to the jury by Officer Phillips, of the Miller County Sheriff's office, who also testified before the jury that Officer Bolton had taken the statement. The trial judge had also been informed, prior to voir dire examination of prospective jurors, by testimony at pretrial hearings, that Officer Bill Bolton had assisted in conducting a "picture lineup" by presenting a folder containing six photographs, one of which was of appellant, to the victim for identification, had participated in two searches of the dwelling house in which appellant resided for evidence to be used in the trial and had developed a part of the information contained in the affidavit for the warrant on which the searches were based. There is a clear implication in the testimony of Phillips during the trial that Bolton assisted him in the entire investigation of the crimes which resulted in charges against appellant. He also told the jury that Officer Bolton assisted with the "picture lineup." The defense in the case was alibi and mistaken identification.

On voir dire, it was disclosed that Richard Bolton had been the victim of a crime and that he had worked for the sheriff's department for two years. This juror stated that should his brother be a witness, he would not be caused to lean more heavily toward the state than toward the defendant and that it would not be embarrassing for him to discuss the case with his friends if he were on the jury and it should return a verdict of not guilty. The trial judge asked Richard Bolton if he could, without embarrassment, serve and let the verdict speak the truth. Appellant's challenge to this prospective juror for cause was denied. Appellant points out that he had, at the time, exhausted his peremptory challenges. He was not required to object or to save exceptions to the denial of his challenge in order to obtain appellate review. He was only required to make the court aware of the action he desired.

It is true that the question of a juror's qualification lies within the sound judicial discretion of the trial judge and that appellant had the burden of showing the prospective juror's disqualification. See Satterfield v. State, 252 Ark. 747, 483 S.W.2d 171; Swindler v. State, 264 Ark. 107, 569 S.W.2d 120. This case, however, is unlike Gammel v. State, 259 Ark. 96, 531 S.W.2d 474, cited by the state. There the challenge was for actual bias. Although Officer Bolton did not testify, the reliability of the identification of appellant shown by the prosecuting attorney and the propriety of the photographic lineup conducted by Bolton and Officer Phillips were major issues in the case. Phillips testified on cross-examination that, even though there were hundreds of black males, "we" did not show any of them, except for six, to the victim because "we had our suspect." Bennie Beed testified that he really believed that the whole matter was something like a police conspiracy to get him tried for rape, robbery and kidnapping.

Although it was established by examination of Richard Bolton that he would not be embarrassed by his brother's connection with the case, the potential embarrassment of other jurors in weighing the evidence seems to have never been considered. If the statute on implied bias is read literally and technically, it was not Bolton's complaint that was the basis for the institution of the prosecution. But we have not construed this section of the statute in that way. We have construed it rather liberally toward insuring the constitutional right of a defendant to a trial by an impartial jury secured by Art. 2, § 10, Constitution of Arkansas. See Swindler v. State, supra; Glover v. State, 248 Ark. 1260, 455 S.W.2d 670. In Swindler, we found abuse of the trial court's discretion in not sustaining a challenge for cause to a prospective juror who was an employee of the United States Marshall's office only because the victim of the crime was a city police officer. We also held that there was an abuse of discretion in not sustaining a challenge for cause to a member of the jury panel who had worked for the same company that employed the victim's father for 17 years and had expressed sympathy to the father.

Even in a civil case, we held that it was an abuse of discretion for the trial court to refuse to excuse the wife of a witness, for cause, in spite of the fact that she said she would not believe him above any other witness in the case. Arkansas State Highway Com'n v. Young, 241 Ark. 765, 410 S.W.2d 120. There we recognized that the statute disqualifies jurors related to a party or his attorney, but made no reference to witnesses. We followed the polestar that "justice ought not only to be fair, but appear to be fair." There we stated the rule that where a close relative is a witness to a controverted issue in a case and the matter is brought to the attention of the trial court before the jury is sworn, it is an abuse of discretion for a trial court to refuse to strike a relative for cause. The polestar should be brighter and more clearly visible in a criminal case than in a civil one, rather than less so (see Acklin v. State, 270 Ark. ---, 606 S.W.2d 594 (1980)), particularly in view of our constitutional guarantee to an accused of trial by an impartial jury in Art. 2, § 10.

It is true that Officer Bolton did not testify; however, when we consider the role of this officer with reference to the initiation of the investigation, the search and the identification procedure, we cannot eliminate him as one on whose complaint the prosecution was instituted. Neither can we say that Richard Bolton's answers on voir dire were sufficient to eliminate him as one who was prevented by a relationship or by circumstances from acting impartially, any more than we could do so in Young. In Young, we said:

* * * It does not stretch the imagination to say that the very presence of a witness' close relative on the jury would tend to inhibit the frank discussion necessary in a jury room for arriving at an impartial verdict for what prudent banker or merchant on the jury, who was inclined to believe the witnesses for the Highway Commission, would care to criticize Mrs. Ragge's husband to her face?

How could a juror in this case freely criticize the identification procedures or even the search during jury deliberations?

Failure to sustain the challenge was prejudicial error. The juror was one whom appellant was not willing to accept after he had exhausted his peremptory challenges. When a defendant has used all his peremptory challenges, before a prospective juror is called, he may only challenge that juror for cause and not peremptorily, and it is reversible error to thereafter hold a biased juror competent. Snyder v. State, 151 Ark. 601, 237 S.W. 87.

Appellant attacked the legality of a search of the dwelling house in which Bennie Beed had been residing with his mother at the time the offenses were alleged to have occurred by a motion to suppress an emerald ring seized there...