Clines v. State

• Decision Date: 05 July 1983
• Docket Number: No. CR,CR
• Citation: Clines v. State, 280 Ark. 77, 656 S.W.2d 684 (Ark. 1983)
• Parties: Hoyt Franklin CLINES, James William Holmes, Darryl V. Richley and Michael Ray Orndorff, Appellants, v. STATE of Arkansas, Appellee. 82-54.
• Court: Arkansas Supreme Court

Page 684

656 S.W.2d 684

280 Ark. 77

Hoyt Franklin CLINES, James William Holmes, Darryl V Richley and Michael Ray Orndorff, Appellants, v.STATE of Arkansas, Appellee.

No. CR 82-54.

Supreme Court of Arkansas.

July 5, 1983.

Rehearing Denied Oct. 3, 1983.

Marshall N. Carlisle, Fayetteville, Donald R. Huffman, Bentonville, Priscilla Karen Pope, Fayetteville, and Thomas J. Tucker, Siloam Springs, for appellants.

Steve Clark, Atty. Gen. by Dennis R. Molock, Deputy Atty. Gen., Little Rock, for appellee.

HAYS, Justice.

These four appellants were jointly tried and convicted of the January 8, 1981 capital murder of Don Lehman, a Rogers householder, and of the aggravated robbery of his wife and daughter.They were sentenced to death by electrocution on the capital murder charge and to life sentences on the two aggravated robbery charges.On appeal they allege a number of errors of law and procedure as grounds for reversal.Finding no error, we affirm the convictions and the sentences imposed.

I.

THE TRIAL COURT ERRED IN FINDING THE ARKANSAS CAPITAL MURDER

STATUTE CONSTITUTIONAL.

Appellants make a four-fold attack on the constitutionality of the Arkansas felony murder statute, Ark.Stat.Ann. § 41-1501(1)(a)(Repl.1977), which provides that capital murder occurs if a person, acting alone or with others, commits one of several felonies, including robbery, in the course of which either he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life.Appellants argue that the statute is vague and overbroad; that it denies equal protection of the law inasmuch as there are currently twenty-three men, but no women, on death row; that the imposition of the death penalty is arbitrary and capricious because the prosecuting attorney is given discretionary power to waive the death penalty and because the jury must return a death verdict if they find aggravating circumstances outweigh mitigating circumstances; and finally that our statutory scheme does not require the jury to consider the culpability of each individual defendant.

The vagueness argument has been raised and answered more than once.In Cromwell v. State, 269 Ark. 104, 598 S.W.2d 733(1980), we pointed out that in the definition of criminal offenses some generalization is both unavoidable and desirable so that prosecutors and juries may have leeway to lighten the punishments that might be imposed for conduct that falls within overlapping offenses.(SeeCromwellat p. 107, 598 S.W.2d 733).

The claim that the equal protection clause of the constitution is offended because men are given the death penalty disproportionately to women is raised initially on appeal and, beyond that, is supported by argument alone.

We disagree that juries are bound under our statutory scheme to return a verdict of death if they find aggravating circumstances outweigh mitigating circumstances.We have pointed out in several cases that whatever the jury may find with respect to aggravation versus mitigation, it is still free to return a verdict of life without parole, simply by finding that the aggravating circumstances do not justify a sentence of death.[SeeWilliams v. State, 274 Ark. 9, 621 S.W.2d 686(1981), andArk.Stat.Ann. § 41-1302(2)(c) ].Additionally, because the capital murder statute and the first degree murder statute overlap in appropriate cases, the jury may refuse consideration of both the death penalty and life without parole, by returning a guilty verdict as to the charge of murder in the first degree.Wilson v. State, 271 Ark. 682, 611 S.W.2d 739(1981).This jury had that option.

The argument that prosecutorial discretion in seeking the death penalty is arbitrary and capricious has been dealt with by the Supreme Court of the United States(Bordenkircher v. Hayes, 434 U.S. 357, 359, 98 S.Ct. 663, 665, 54 L.Ed.2d 604(1978)); and by us(Miller v. State, 269 Ark. 341, 605 S.W.2d 430(1980)).It needs no further review.

The claim that our statutory scheme does not require the jury to separately weigh each defendant's role in a crime involving capital murder, so as to determine individual culpability, might be disposed of on procedural grounds, as the argument was not clearly raised below, i.e. we find no objection to the capital murder instructions, nor did the appellants tender to the trial court an instruction consistent with their view of the law.Schwindling v. State, 269 Ark. 388, 602 S.W.2d 639(1980).However, we choose to consider the merits of the argument.

Appellants cite Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140(1982).There, the Supreme Court held that death was a cruel and unusual punishment for one who had participated in a robbery during which murders were committed, but was not present at the killings and did not intend that the victims be killed.The court noted that the record supported no more than an inference that Enmund, the petitioner, was the person waiting in a car near the scene of a robbery.Two others had gone to the rear of a nearby farmhouse and, on a pretext of having car trouble, coaxed the victim outside to rob him.When the victim called for help his wife came out and shot one of the robbers.The two victims were killed in a gun battle and the robbers fled with their money to a waiting car.

Relying on the Eighth Amendment, the court held that one who does not intend that a robbery victim be killed, is not present when the killing occurs, and does not contemplate that lethal force will be used in carrying out the robbery, is not subject to the death penalty.A Florida jury had found Enmund and a co-defendant guilty and recommended the death penalty for both defendants, which the trial court imposed.Acknowledging the absence of any direct evidence that Enmund was present at the killings, the Supreme Court of Florida affirmed, explaining that the interaction of the felony murder rule and the law of principals combine to make a felon generally responsible for the lethal acts of his co-felons.As it did with death as a penalty for rape (seeCoker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982(1977)), the court reasoned that an overwhelming number of states and of American juries would repudiate the death penalty for crimes such as Enmund's.

Significant comments are in the opinion, first, that there was no evidence that Enmund had any intention of participating in, or facilitating, a murder and, second, the court emphasized that "[i]t would be very different if the likelihood of a killing in the course of a robbery were so substantial that one should share the blame for the killing if he somehow participated in the felony."Here, a number of distinguishing factors immediately appear.At about 9:45 p.m., after he and his family had retired for the evening, Don Lehman answered a knock at his front door.He asked who was there and someone answered "David."His daughter, Vickie, also responding to the knocking, said as her father unlocked the door the four appellants, masked and armed, burst into the room with such force that her father was knocked backward off his feet and the doorknob of the front door was jammed through a closet door behind.Two or three of the appellants struggled with her father toward the bedroom, where Mr. Lehman was wrestled onto the bed and a fatal shot to the head and one to the abdomen were delivered.

There was direct evidence from more than one source that appellants had discussed among themselves the necessity of murder if they met resistance; at least two of the appellants were armed with pistols, perhaps three of them, and the fourth with a lethal weapon fashioned from a metal chain.All four wore ski masks and all four burst into the Lehman home when the latch was opened.The proceeds, some $1,200, were presumably divided to the appellants' liking.It must be noted, too, that Lehman was given no opportunity to yield, he was immediately attacked by appellants, sustaining blows to his head and face from the metal chain and a mortal wound to the chest before reaching the bedroom.

Although perhaps only two of the appellants were in the bedroom when Mr. Lehman was killed, it cannot be ignored that when a group of individuals agree to execute a criminal enterprise involving the forced, nighttime entry of a private dwelling, known to be occupied, wearing masks and armed with pistols, intent on robbery, it follows that murder is a most probable consequence.We think the likelihood of a homicide under the circumstances is so substantial as to bring this case clearly within the quoted exception of the Enmund decision, on those circumstances alone.Added to that is the evidence that murder was plainly contemplated by the appellants.We conclude the blame for Don Lehman's murder rests with near equality on all of the appellants.

As a final response to this phase of the argument, we point out that there are added safeguards in our system against the arbitrary imposition of the death penalty.In Collins v. State, 261 Ark. 195, 548 S.W.2d 106(1977), we noted the power of the trial court to reduce a death sentence to life imprisonment and in that opinion we committed this court to a policy of comparative review, by examining the death penalty in every case on a comparable basis.We have demonstrated our readiness to modify the death sentence where it is imposed capriciously (seeSumlin v. State, 273 Ark. 185, 617 S.W.2d 372(1981)), or where the culpability of co-felons is disproportionate [seeHenry v. State, 278 Ark. 478, 647 S.W.2d 419(1983) ], or where death is unduly harsh under the circumstances [Neal v. State, 274 Ark. 217, 623 S.W.2d 191(1981)andGiles v. State, 261 Ark. 413, 549 S.W.2d 479(1977) ].

We are not overlooking the suggestion that Michael Orndorff's participation in the crime was half-hearted; that he may have asked to be taken home as the appellants were leaving the Baker residence;...