Berna v. State

• Decision Date: 04 June 1984
• Docket Number: No. CR,CR
• Citation: 282 Ark. 563,670 S.W.2d 434
• Parties: Rickie Earn BERNA, Appellant, v. STATE of Arkansas, Appellee. 83-153.
• Court: Arkansas Supreme Court

Page 434

670 S.W.2d 434

282 Ark. 563

Rickie Earn BERNA, Appellant, v. STATE of Arkansas, Appellee.

No. CR 83-153.

Supreme Court of Arkansas.

June 4, 1984.

John R. VanWinkle, Fort Smith, and Fines F. Batchelor, Jr., Van Buren, for appellant.

Steve Clark, Atty. Gen. by Theodore Holder, Asst. Atty. Gen., Little Rock, for appellee.

HICKMAN, Justice.

Ricky Earn Berna was convicted of three charges of kidnapping, one charge of rape and one of aggravated robbery; he received a life sentence plus eighty years. The evidence of Berna's guilt is overwhelming and that is a factor in reviewing any allegation of error. See Pace v. State, 265 Ark. 712, 580 S.W.2d 689 (1979); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). In reviewing Berna's arguments we find that no prejudicial error was committed and that he received a fair trial. Consequently, the judgment below is affirmed.

The facts are undisputed. On December 10, 1981, Linda Kay King was at home at Mulberry, Arkansas, with her two pre-school age daughters. Berna came to her door with a gun and a butcher knife, told her to open the door and make no noise. He tied her hands. She recognized him when he started questioning her about everyone he knew in Mulberry. He untied her so that she could put shoes on and when she was in the bedroom, she tried to get her husband's rifle. Berna took it away from her, tied her hands again and threatened to kill her. He put Mrs. King and her two daughters in the front seat of the Kings' car and drove around the vicinity for approximately seven hours. He threatened to kill Mrs. King several times, and, at one time when they were stopped, struck her and threw her to the ground when she tried to lock him out of the car. He put her and the children in the trunk. Later he stopped, took one of the daughters out of the trunk, and the evidence reflects that he sexually abused her, requiring her to undergo surgery later to correct the damage done. Mrs. King tried to tear her way into the car through the back seat but was unsuccessful. Berna left the three victims in a rural area where they walked until they found help. Mrs. King immediately contacted the authorities and late that night, with a warrant for his arrest, several law enforcement officers went to Berna's home where he was living with his mother. His mother told them that Berna was in the bedroom and was armed. For about an hour and a half the officers tried to get Berna to surrender. At one point a deputy sheriff, who knew Berna and had attended school with him, conducted the negotiations directly. Eventually Berna threw the keys to the King vehicle to the deputy and told him where the vehicle was. Later Berna surrendered without further resistance. Two guns were confiscated, a .357 pistol and the Kings' rifle. Berna was taken to the police station where he was warned of his rights for the first time. He was committed to the Arkansas State Hospital for a mental examination on February 3, 1982, and the authorities reported that he was unable to assist in his defense. On an inquiry by the circuit court in December of 1982, the authorities reported that since his treatment Berna was capable of assisting in his defense and the matter was set for trial.

There are four main arguments made by the appellant. First, it is argued that the trial court erred in refusing to quash the jury panel. It was demonstrated in this case that the jurors were summoned by ordinary mail and not by certified mail as required by Ark.Stat.Ann. § 39-210 (Supp.1983). Furthermore, the appellant placed a considerable number of statistics in the record to show a true cross-section of the community could not be obtained in Crawford County due to past practices and the statutes in effect. For example, it is argued that 225 names were drawn from the jury panel, yet only 55 showed up for examination. The circuit clerk testified that only 97 of those drawn were summoned. Some were excused by the circuit court, evidently for reasons permitted by Ark.Stat.Ann. §§ 39-107 and 108 (Supp.1983). He argues that it is unconstitutional to summarily excuse, for example, persons over 65, dentists, clergymen, nurses and persons of other professions. There is no argument, however, how Berna was prejudiced by the jury panel in question. In two cases where we have considered irregularities regarding jury panels, we have stated that some prejudice must be shown in order to find grounds to reverse a conviction. Walton v. State, 279 Ark. 193, 650 S.W.2d 231 (1983); Huckaby v. State, 262 Ark. 413, 557 S.W.2d 875 (1977). No longer is it presumed that simply because an error is committed it is prejudicial error. In McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984), the Supreme Court said:

This Court has long held that '[a litigant] is entitled to a fair trial but not a perfect one,' for there are no perfect trials. Brown v. United States, 411 U.S. 223, 231-232, 93 S.Ct. 1565, 1570, 36 L.Ed.2d 208 (1973), quoting Bruton v. United States, 391 U.S. 123, 135, 88 S.Ct. 1620, 1627, 20 L.Ed.2d 476 (1968), and Lutwak v. United States, 344 U.S. 604, 619, 73 S.Ct. 481, 490, 97 L.Ed. 593 (1953). Trials are costly, not only for the parties, but also for the jurors performing their civic duty and for society which pays the judges and support personnel who manage the trials. It seems doubtful that our judicial system would have the resources to provide litigants with perfect trials, were they possible, and still keep abreast of its constantly increasing case load....

We have also come a long way from the time when all trial error was presumed prejudicial and reviewing courts were considered 'citadels of technicality.' Kotteakos v. United States, 328 U.S. 750, 759, 66 S.Ct. 1239, 1245, 90 L.Ed. 1557 (1946), quoting Kavanagh, Improvement of Administration of Criminal Justice by Exercise of Judicial Power, 11 A.B.A.J. 217, 222 (1925). The harmless error rules adopted by this Court and Congress embody the principle that courts should exercise judgment in preference to the automatic reversal for 'error' and ignore errors that do not affect the essential fairness of the trial. See Kotteakos, 328 U.S., 759-760, 66 S.Ct., 1245.

Furthermore, in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), the Supreme Court said:

The States are free to grant exemptions from jury service to individuals in case of special hardship or incapacity and to those engaged in particular occupations the uninterrupted performance of which is critical to the community's welfare. Rawlins v. Georgia, 201 U.S. 638, 26 S.Ct. 560, 50 L.Ed. 899 (1906). It would not appear that such exemptions would pose substantial threats that the remaining pool of jurors would not be representative of the community.

In the case at bar there was no deliberate exclusion of any class of persons and certainly not of any large class of persons. See Waters v. State, 271 Ark. 33, 607 S.W.2d 336 (1980). Since Berna is unable to show that he was prejudiced by the selection process and the jury panel in any way, his argument is without merit. We do not approve the procedure used but the question to us is whether there was prejudicial error.

Although the guns seized at Berna's residence were not introduced into evidence, the fact that he threw out the keys to the King vehicle and said they were the keys to the King vehicle was admitted into evidence. Also, an expert testified that he obtained a fingerprint of Berna's from the trunk of the King vehicle. The question is raised whether this evidence was the product of an illegal search and seizure or a custodial interrogation in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

The deputy testified, out of the hearing of the jury, that when he was negotiating with Berna, Berna said "[L]ets talk about that bitch's car down the street." The deputy asked who he was talking about and Berna said, "the King woman's." When Berna asked if they knew where the car was, the deputy said no, and Berna told him where it was. The deputy asked what car and he said the Kings' car. Then Berna threw the keys out and told the officers to go and get it. There is no doubt that there were eight or ten armed police officers surrounding Berna's home and that they had a warrant for his arrest. But we find that the evidence was not the result of an "interrogation." The facts in this case are similar to those in the case of State v. Porter, 50 N.C.App. 568, 274 S.E.2d 860 (1981), where a robbery suspect was being held at gunpoint by one policeman. A police supervisor asked over the car radio if the officer had found a bank bag. The suspect, who had not been given his rights, said: "The bank bag is in the car." The officer, who was at the scene, said: "What bank bag?" and the suspect said: "The bag from the robbery." The North Carolina court held that, while the defendant was clearly in custody, there had been no interrogation when the officer asked "What bank bag?" The North Carolina court, relying on the definition of interrogation given in Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), said:

[A] voluntary in-custody statement does not become the product of an 'in-custody interrogation' simply because an officer in the course of appellant's narration, asks defendant to explain or clarify something he has already said voluntarily. Since there is no evidence here that defendant's statements were made in response to overbearing police questioning or other police procedures designed to elicit a statement, we conclude that they were the product of free...