Coulter v. State

• Decision Date: 18 February 1991
• Docket Number: No. CR,CR
• Parties: Roger Lewis COULTER, Appellant, v. STATE of Arkansas, Appellee. 90-126.
• Court: Arkansas Supreme Court

Page 348

804 S.W.2d 348

304 Ark. 527

Roger Lewis COULTER, Appellant, v. STATE of Arkansas, Appellee.

No. CR 90-126.

Supreme Court of Arkansas.

Feb. 18, 1991.

Arthur L. Allen, Little Rock, for appellant.

Clint Miller, Asst. Atty. Gen., Little Rock, for appellee.

NEWBERN, Justice.

Roger Lewis Coulter was convicted of capital murder. Ark.Code Ann. § 5-10-101 (Supp.1989). It was alleged that he killed a five-year-old child during the course of, or in furtherance of, raping her. He was found guilty by a jury and sentenced to die by lethal injection. None of the seven points of appeal raised by Coulter warrants reversal of the conviction. As Coulter does not challenge generally the sufficiency of the evidence, we need not render a detailed statement of the facts.

Testimony disclosed that Coulter was living with the child and her mother. On the morning of April 12, 1989, he left the house where they lived. He was to deliver the child to a headstart program as he did from time to time. He returned to the house somewhat later than usual, telling the child's mother that he had had car trouble and had injured his hand by striking the car.

Coulter bathed, ate, and then drove to his mother's home where he borrowed some money. He was seen thereafter at the bank where he cashed a check from his mother.

When Coulter did not return the child home that afternoon, the child's grandmother went to the headstart quarters and found the child had not been there that day. Upon being informed of the situation, the police began looking for Coulter and the child.

Based on reports that Coulter's vehicle had been seen near a power line cut, a search of the area occurred. The child's partially naked body was found stuffed in a hollow tree. An attempt had been made further to conceal her by covering her with branches and leaves. Examination of the body revealed many abrasions and that she had been raped. Hairs found on the body were consistent with Coulter's.

Coulter was arrested in California five weeks after his and the child's disappearance.

1. Improperly excused jurors

Coulter contends two jurors were improperly excused for cause, on the prosecution's motion, because of their reservations about capital punishment.

Juror John H. Johnson responded equivocally to the prosecutor's initial questions whether he would be capable of voting for the death penalty, and then said, "Well, to be honest and tell the truth, I don't believe I could do it." He then said again, "I don't know." Defense counsel asked Johnson to imagine a murder "involving one of [his] loved ones: your wife, your mother. Is there a case in which you would consider imposing the death penalty?"

A. Well, since you put it like that, I believe I could. You know, yes sir.

Q. And that's all the law requires.

A. Yeah. All that is required.

Q. In an appropriate case--

A. Right.

Q. --that you'd at least consider the death penalty.

A. Right.

The prosecutor then asked if Johnson could go so far as to actually vote for the death penalty, and Johnson said, "I just couldn't say I could. I don't know." He gave the same response to an inquiry by the judge who then excused him for cause.

Prospective juror Victor Mason began his voir dire responses by saying he did not believe in capital punishment. Like Johnson, he gave some equivocal responses but ultimately said he could vote for capital punishment in a case involving "close kin."

Coulter argues these jurors should not have been excused for cause because neither of them made it unmistakably clear he would "automatically" vote against the death penalty, citing Witherspoon v. Illinois, 391 U.S. 510, 522, 88 S.Ct. 1770, 1777, 20 L.Ed.2d 776 (1968). In Wainright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), the United States Supreme Court acknowledged confusion resulting both from lower court application of the Witherspoon standard and its own variance from the Witherspoon standard in Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980).

In Wainright v. Witt, supra, the Supreme Court declared the test stated in Adams v. Texas, to be correct.

That standard is whether the juror's views would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." We note that, in addition to dispensing with Witherspoon's reference to "automatic" decisionmaking, this standard likewise does not require that a juror's bias be proved with "unmistakable clarity." This is because determinations of juror bias cannot be reduced to question-and-answer sessions which obtain results in the manner of a catechism. What common sense should have realized experience has proved: many veniremen simply cannot be asked enough questions to reach the point where their bias has been made "unmistakeably clear"; these veniremen may not know how they will react when faced with imposing the death sentence, or may be unable to articulate, or may wish to hide their true feelings. Despite this lack of clarity in the printed record, however, there will be situations where the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law. [469 U.S. at 424-426, 105 S.Ct. at 852-853, footnotes omitted].

The Supreme Court then notes the deference which must be paid to the trial judge in making such decisions which will be informed by the judge's observance of the prospective juror's demeanor and credibility.

We have no hesitancy in holding the trial court did not err in excluding Johnson and Mason from the jury. Each of them expressed a definite negative attitude toward the death penalty. We defer to the trial judge's finding that their equivocation did not sufficiently ameliorate those expressions to assure they could follow the law if instructed on the death penalty.

2. Aggravating circumstance

a. Constitutionality

In the sentencing phase of the trial, the prosecutor presented one aggravating circumstance. He asked the jury to conclude that Coulter committed the murder "for the purpose of avoiding or preventing an arrest or effecting an escape from custody." Ark.Code Ann. § 5-4-604(5) (1987). Coulter contends the language of the statute is unconstitutionally vague. He asks that we so declare as we did with respect to the "cruel, heinous, and atrocious" language of Ark.Code Ann. § 5-4-604(8) (1987) in Wilson v. State, 295 Ark. 682, 751 S.W.2d 734 (1988). We decline to do so.

In Pickens v. State, 292 Ark. 362, 730 S.W.2d 230, cert. denied 484 U.S. 917, 108 S.Ct. 269, 98 L.Ed.2d 226 (1987), we considered a contention that § 5-4-604(5) was too "vague and overbroad as applied to the facts" of that case. We rejected the argument, pointing out that the appellant and his accomplice had remarked they would have to kill their victims because "if they get loose they will burn us."

Coulter cites Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), for the Supreme Court's statement that "[I]t is not enough to instruct the jury in the bare terms of an aggravating circumstance that is unconstitutionally vague on its face." That decision upheld Arizona's statutory aggravating circumstance, that the offense was committed in an "especially heinous, cruel or depraved" manner because the sentencing judge, rather than jury, could apply the narrowing factors previously announced by the Arizona Supreme Court. The decision is of little use to us here, and Coulter has cited nothing in support of his contention that our statutory "avoiding or preventing an arrest or effecting an escape" aggravating circumstance is vague or overbroad.

While a jury may, as in this case, have to determine whether an accused killed to avoid or prevent arrest from circumstantial evidence, we find nothing vague or overbroad in the statutory description of that intent. Coulter has made no convincing argument on this point.

b. Evidence

Coulter argues he was being sought by the police the day the victim disappeared because he was the last person seen with her; therefore, the killing did not aid him in avoiding apprehension. That is irrelevant to Coulter's intent. He further contends, without citation of authority, that the jury was required to speculate that the killing was committed to avoid arrest or apprehension. Again, we are not convinced by his argument.

The child obviously knew Coulter and would have been able to identify him as the man who raped her. The ends to which Coulter went in trying to hide the body, coupled with his almost immediate departure from the area where the offense occurred, is clear evidence of his other efforts to avoid arrest.

While the jury must determine the presence of an aggravating circumstance beyond a reasonable doubt, Ark.Code Ann. § 5-4-603(a)(1) (1987), we will review the sufficiency of the State's evidence in the light most favorable to the State to determine whether any rational trier of fact could have found existence of the aggravating circumstance beyond a reasonable doubt. See Lewis v. Jeffers, 497 U.S. 764, 110 S.Ct. 3092, 3102-04, 111 L.Ed.2d 606 (1990), where the Supreme Court used this standard in a habeas corpus review to determine if Arizona courts had violated an accused's rights to due process of law or protection of the Eighth Amendment. Applying this standard, we conclude the jury could have found beyond a reasonable doubt that Coulter killed to avoid being arrested for raping the victim.

3. Prosecutor's closing argument

Coulter contends his Eighth Amendment rights were violated by the prosecutor's closing argument in the sentencing phase of the trial. Here is what the prosecutor said and how Coulter's counsel objected:

BY MR. GIBSON [prosecutor]:

If it please the Court.

Mr. Allen. Ladies and gentlemen of the jury, I know you're tired. We have talked and talked and talked today about the issues in this case, and I hope I don't stay up here too much longer, but I do...