Brewer v. State, CR

Decision Date01 December 1980
Docket NumberNo. CR,CR
Citation608 S.W.2d 363,271 Ark. 254
PartiesDonald Thurman BREWER, Appellant, v. STATE of Arkansas, Appellee. 80-107.
CourtArkansas Supreme Court

E. Alvin Schay, State Appellate Defender, by Jackson Jones, Deputy Public Defender, Little Rock, for appellant.

Steve Clark, Atty. Gen., by James F. Dowden, Asst. Atty. Gen., Little Rock, for appellee.

PURTLE, Justice.

Appellant was convicted of capital felony murder pursuant to Ark.Stat.Ann. § 41-1501 (Repl.1977) and aggravated robbery pursuant to Ark.Stat.Ann. §§ 41-2102 and 41-2103 (Repl.1977). He was sentenced to life without parole on capital murder and ten years on aggravated robbery.

The appellant argues eight points for reversal, and we will deal with them separately as we proceed through the opinion. We find prejudicial error on grounds which will be later set out and remand for a new trial.

Appellant and two others were charged with capital murder and aggravated robbery as a result of an occurrence at Charlotte, Arkansas, on December 14, 1978. Appellant and one of the other codefendants went to the store operated by Morris Lillard and in the course of robbery took the life of Mr. Lillard by the use of a firearm. The following day the appellant and the same codefendant went to Tucson, Arizona, where they were arrested in a mobile home by the Arizona police on December 18, 1978. The Arizona police were acting on the authority of an Arizona statute which enabled them to make an arrest on receiving information from the authorities in another state that the person to be arrested was charged with a crime which carried a penalty of more than one year in prison. Following his arrest, appellant gave a confession to the Arizona police. An attorney was appointed for the appellant shortly after the confession was made. He subsequently waived extradition and was returned to Arkansas. He was tried in Heber Springs on a change of venue from Batesville. Prior to the trial a motion to suppress the confession was overruled. The confession was subsequently introduced at trial and was corroborated by the Arizona officer who was present during the time the statement was taken. A codefendant's statement was excluded when it was offered by the appellant on his behalf during the trial. The appellant took the stand and in effect testified that although he knowingly went to the store for the purpose of robbing Mr. Lillard he did not take part in the actual murder of the victim. The arguments for reversal on appeal relate to the actual trial proceedings.

I.

THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE

INCRIMINATING STATEMENTS BY THE APPELLANT WHICH WERE NOT

VOLUNTARY, WERE OBTAINED IN VIOLATION OF HIS FIFTH, SIXTH,

AND FOURTEENTH AMENDMENT RIGHTS, AND WERE TAINTED BY AN

ILLEGAL ARREST.

The Arizona officer testified that he gave the appellant his Miranda warning immediately after entering the mobile home and making the arrest. The officer stated they were invited into the mobile home after knocking on the door. The officer further testified that at one point the appellant appeared to become somewhat confused and he stopped his questioning and again went through the Miranda warning process. During the approximately one hour in which the appellant was questioned, he received the Miranda warning three times.

Julie Lauber, an attorney with the Pima County Public Defender's office, interviewed the appellant after the statement and stated she found him to be incoherent, unintelligent and possibly under the influence of drugs.

Dr. Lewis Britton, a psychiatrist, testified he felt appellant was under the influence of drugs and/or alcohol and was suffering from long-term toxic poisoning effects of drugs and/or alcohol. He felt the appellant demonstrated an organic brain syndrome.

Dr. Rosendale, psychiatrist for the state, concluded that the appellant was not under the influence of drugs or alcohol, was not suffering from organic brain syndrome, and that he made a voluntary and knowingly waiver of his rights in giving the statement to the police.

When the voluntariness of a confession is dependent upon the credibility of the witnesses, we must defer to the superior position of the trial judge for a resolution of the conflict and determination of the fact question. Grant v. State, 267 Ark. ---, 589 S.W.2d 11 (1979). We have many times held that on appeal this Court reviews the evidence and makes an independent determination of the ultimate issue of voluntariness based upon the totality of the circumstances. Degler v. State, 257 Ark. 388, 517 S.W.2d 515 (1974). See also Giles v. State, 261 Ark. 413, 549 S.W.2d 479 (1977). In viewing the totality of the circumstances in this case, in addition to the testimony given by the appellant when he took the stand in his own behalf, we are of the opinion that the trial court did not err in admitting the statements in question.

II.

THE TRIAL COURT ERRED IN REFUSING TO

EXCUSE FOR CAUSE TWO PROSPECTIVE JURORSWHO INDICATED

THAT THEY COULD NOT CONSIDER AGE AND/OR OTHER MITIGATING

FACTORSIN DETERMINING THE SENTENCE TO BE IMPOSED ON THE

APPELLANT IF HE WERE FOUNDGUILTY OFCAPITAL MURDER.

The voir dire examination of the jurors went on exhaustively with at least two jurors making equivocal statements that they would or would not consider the appellant's age or his mental condition in determining the sentence to be imposed. In other words, they would not abide by the court's instruction because they felt if the appellant was old enough to commit the crime, he was old enough to suffer the consequences. It would serve no useful purpose to detail the many times contradictory answers were given by these two jurors. It is well summed up by the court in making the final decision on one of the jurors when the court stated:

I'm not going to excuse her for cause. I don't think she understands properly, so I'm going to leave it like it is.

It appears that if the court or one of the attorneys had put the question to the juror early in the voir dire as to whether the juror would consider the full range of the penalties on the guilt or innocence stage and whether they would consider the mitigating circumstances in the sentencing stage, that the answer should have been binding and all the vacillating thereafter could have been avoided. It is not necessary to question a juror repeatedly when they have once expressed a clear opinion as to whether they would or would not consider all relevant matters. Although we think at least one of these jurors should have been excused for cause, we do not find it prejudicial error for the reason that she was challenged peremptorily by the defense. Thereafter, there was no showing that the appellant had to accept another juror who was unacceptable after they had exhausted their peremptory challenges. In any event, questions relating to the death penalty became moot when such penalty was not imposed.

III.

THE TRIAL COURT ERRED IN ADMITTING INTO

EVIDENCE TESTIMONY BY MEMBERS OF THEVICTIM'S FAMILY

WHICH WAS IRRELEVANT OR THE RELEVANCE AND PROBATIVE VALUE

OFWHICH WERE SUBSTANTIALLY OUTWEIGHED BY THE DANGER OF

UNFAIR PREJUDICE TO THEAPPELLANT.

The widow of the victim was called to the stand to identify the cash register and to show the decedent's habits and routine. Appellant agreed to stipulate to the testimony of the widow and to the truthfulness thereof. However, the court ruled that the state had the right to put her on but cautioned against anything inflammatory. Her testimony included the length of their marriage and the manner in which they operated the store. She broke into tears and was obviously emotionally upset. The three children of the victim testified about the normal habits of the deceased, and one of them testified that she arrived at the store and observed her "daddy's" body and further that nothing was moved until the police arrived. She also identified pictures as being those of her father.

The appellant argues that this testimony by the family should have been excluded under Uniform Rules of Evidence, Ark.Stat.Ann. § 28-1001 (Repl.1979), Rule 401. It is the opinion of the majority of the Court that the testimony of the family members was properly allowed. Although it may have been inflammatory to an extent, it was proper to allow the state to prove its case as fully as it could. Rule 401 states:

"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

Rule 406(a) provides:

Admissibility. Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

The trial court has the discretion to determine the relevancy of evidence and its admissibility. This Court will not overturn that discretion absent a clear abuse thereof. Hamblin v. State, 268 Ark. ---, 597 S.W.2d 589 (1980). We are not unaware of appellant's reliance upon Walker v. State, 239 Ark. 172, 388 S.W.2d 13 (1965). However, the majority distinguishes the Walker case from the present case inasmuch as in Walker there was no effort to prove the habit or routine practice of the decedent nor any fact in issue. The majority feels that all of the evidence presented by the members of the family was either for the purpose of showing a proper element of the offense or to show the habit and routine of the victim. Therefore, we do not find the admission of this testimony to be reversible error.

IV.

THE TRIAL COURT ERRED IN REFUSING TO ALLOW TESTIMONY

CONCERNING A STATEMENT MADE TO POLICE OFFICERS BY

THE APPELLANT'S ACCOMPLICE, WHO WAS

UNAVAILABLE AS A WITNESS.

Appellant sought to introduce evidence that a police officer from Arizona would...

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