Brown v. State
| Decision Date | 08 November 1965 |
| Docket Number | No. 5131,5131 |
| Parties | Walter Lonnie BROWN, Appellant, v. STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
E. V. Trimble, Little Rock, for appellant.
Bruce Bennett, Atty. Gen., by Reg E. Wallin, Asst. Atty. Gen., Little Rock, for appellee.
Appellant, Walter Lonnie Brown, was convicted of murder in the first degree by a Jefferson County jury, which fixed his punishment at death in the electric chair. The Information alleged that Brown killed Mrs. Hester Wares by shooting her with a pistol, while perpetrating the crime of robbery. Mrs. Wares was shot on July 15, 1964, and died the next day. From the judgment entered in accordance with the jury verdict, appellant brings this appeal. For reversal, appellant lists nine separate points, and the motion for new trial contains thirty-one assignments of error, though some of these overlap with the listed points. Pursuant to our procedure in capital cases, we have examined each point argued, and each assignment set out in the motion for new trial, as well as each objection made during the course of the trial.
We first proceed to a discussion of the evidence upon which the conviction was based. Raymond Jones, Jr., testified that he, Walter Brown (appellant herein), Howard Brown, Jessie Anderson, and Joe Nathan Nelson, was together on the night of July 15, 1964. They had met at Geneva, Arkansas, and had planned to drive to Mississippi. The group was traveling in a 1956 two-tone Buick, owned by Howard Brown. According to Jones, they came to Pine Bluff about 11:30 that night, and appellant, together with Joe Nelson and Howard Brown, got out of the car for the purpose of robbing the Trio Liquor Store, located on Highway 65 in North Pine Bluff. All three were armed with .22 pistols. Nelson remained outside the store near a phone booth, and the two Browns went inside. When they returned to the automobile, Nelson asked appellant if he had shot the woman in the store, and the latter replied, 'Yes.' Jones stated that money was taken in the robbery, but he did not know the amount. The men then drove to Walter Brown's house in Little Rock, where they divided the money and commenced gambling. The witness stated that he received $12.00, and that the others also received part of the money. Jones said that Walter Brown turned a short-barrel .22 pistol 1 over to him the next day, and he in turn gave it to the officers at the time of his apprehension. The witness also testified that, though all were drinking, none were drunk.
Officer Edward Shipman of the Pine Bluff police force testified that he and Officer Holland passed the liquor store after midnight, during their patrol, and, noticing that the lights were still on in the building, went inside to investigate. They found Mrs. Wares lying on the floor behind the counter, and in the doorway of an adjoining room. She stated that two colored men, one tall, and one short, had come into the store, and that she had been shot by the tall one. An ambulance was called, and Mrs. Wares was removed to the hospital.
Dr. Joseph Robinette testified that he examined Mrs. Wares, and, during surgery, found that she had been severely injured from a bullet wound; he stated that she subsequently died as a result of that wound.
Dr. Frank Reed, Jefferson County Coroner, testified that he removed a small bullet from the body, and that her death was the result of a gunshot wound through the abdomen.
Buddy Garner, an employee of a movie theater near the liquor store, testified that he left his work around 11:30 on the night of July 15, and, while passing the Trio Liquor Store, saw someone run and jump into a '56 Buick, which was two-tone in color and which was occupied by several people.
Bulah Smithy, another employee of the liquor store, obtained Mrs. Wares' clothing at the hospital, and turned same over to Night Chief William Howard of the Pine Bluff Police Department.
Appellant was arrested in Little Rock on July 19 by Henry Atkinson, an investigator with the Criminal Investigation Division of the Arkansas State Police. Brown was taken to the Little Rock Police Department, and turned over to Sergeant W. A. Tudor of the State Police. Tudor testified that he talked with Brown, first advising appellant that he had a right to have an attorney, and further advising that Brown did not have to make any statement whatsoever. Tudor said that he made no promises to appellant, and did not abuse, threaten, or intimidate him in any manner. Appellant denied any knowledge of the killing, but admitted traveling to Pine Bluff, and participating in a robbery of the liquor store. Appellant said that he was not armed, but was present 'when the woman fell to the floor.' Brown stated that he had gone to Pine Bluff in Howard Jones' two-tone Buick. The officer said that appellant had been in custody about an hour and a half when he talked with him. 2 Subsequently, R. D. Bentley, a lieutenant of the Little Rock Police Department, together with Detective Goodwin, located two expended cartridge hulls at Brown's home. 3 These officers turned the cartridges over to Major Paul McDonald of the Arkansas State Police.
Officer William Howard, Assistant Chief of Police in Pine Bluff, talked with Brown on July 21. Chief Howard testified that Brown was not intimidated or abused, nor made any promises of immunity from prosecution. Accompanied by Deputy Sheriff Buck Oliger, Officer Howard and Brown started to the liquor store. On the way, Brown said that he would like to change his statement; that he was the one who shot the lady in the store, and that he shot her with his short-barrel .22 pistol. The appellant pointed out the liquor store, and described where the car had been parked. The officers then went inside with Brown, and appellant detailed how the crime was committed. According to Officer Howard:
'* * * He said that he walked into the liquor store turned to the left, which would be the north side of the liquor store and someone in his group asked for a fifth or some kind of liquor and the lady turned to go to the shelf, shelves of liquor which would be at the right of the storeroom door on the top shelf and he said the lady reached up on that shelf as she was going to get the fifth of liquor and that's when he went behind the counter and grabbed the lady from behind with his left hand over her mouth and he said that must have excited the lady because she jerked away from him as though she was excited and she had the bottle of liquor over her head and then he stepped back about two feet, he said, and pulled his gun, a short barrel gun, from his belt and shot the lady, * * *'
Brown then asked where the money was, and Mrs. Wares first stated that the boss had taken it to Little Rock, but when asked again, she replied that all the money was in the cash register.
Major McDonald of the State Police, a ballistics expert, after explaining the manner of conducting tests, testified that he had made tests with the pistol turned over to him by Officers Atkinson and Crump, and that, in his opinion, the fatal bullet had been fired by this .22 caliber, short barrel gun. He also testified relative to the dress that Mrs. Wares had been wearing, and stated that an examination of the hole in the dress showed that the gun was fired at close range. Deputy Sheriff Buck Oliger of the Jefferson County Sheriff's Office, testified that Brown had been advised of his constitutional rights, i. e., he did not have to tell the officers anything, and he did not have to go with the officers to the liquor store to show how the robbery took place.
Appellant took the stand in hiw own behalf, and admitted that he had shot Mrs. Wares, but stated that the gun 'went off.' From the testimony:
'A. * * * Howard went in first and when I came in she already had her back turned, she never did see my face, by the time I walked in the door Joe Nelson was right behind me and I walked in, walked right on to the left and walked right on behind the counter.
Q. In other words, you went around this counter behind the counter?
A. Yes sir, right around the end.
Q. What did you go around there for?
A. I was going to hold her.
Q. You were going to hold her and then the other boy, Howard Brown was going to take the money out of the cash register?
A. Either Howard or Joe, I don't know which one.
Q. Then what happened?
A. And when I reached her she had her right hand on a fifth of whiskey and was reaching around the door after the cigarettes. When I reached at her she turned around and when she turned around she started coming out with the fifth of whiskey and my hand went up like that and I pulled the gun out and when I pulled the gun out it went off.
Q. You didn't pull the trigger to make it go off?
A. No sir.
Q. You mean, you are saying it was a total accident, is that right?
A. Well, I wouldn't say it was an accident or not 'cause, (interrupted)
Q. You mean you were then shooting at her to kill her?
A. No, no, I wasn't intending to shoot her. I was just going to pull her back, see, I knew she was a woman and I could handle her, but I had been drinking pretty heavy and when I pulled the gun out it went off.'
The evidence was clearly sufficient to sustain the conviction.
The first four points raised by appellant all relate to the question of race prejudice, and are as follows:
1. Members of petitioner's race were intentionally, deliberately and systematically limited in the selection of petit jury panels.
2. Petitioner is a Negro and members of his race were deliberately and intentionally discriminated against in the selection of petit jury panels.
3. The jury commissioners allowed race to be considered as a factor in the selection of the petit jury panels.
4. The jury commissioners made no special effort to acquaint themselves with Negroes who were qualified for jury service.
The allegations under these points...
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