Cox v. State

• Citation: 313 Ark. 184,853 S.W.2d 266
• Decision Date: 17 May 1993
• Docket Number: No. CR,CR
• Parties: Johnie Michael COX, Appellant, v. STATE of Arkansas, Appellee. 91-16.
• Court: Supreme Court of Arkansas

Page 266

853 S.W.2d 266

313 Ark. 184

Johnie Michael COX, Appellant, v. STATE of Arkansas, Appellee.

No. CR 91-16.

Supreme Court of Arkansas.

May 17, 1993.

John Wesley Hau, Jr., Craig Lambert, Little Rock, for appellant.

Kent G. Holt, Asst. Atty. Gen., Little Rock, for appellee.

HAYS, Justice.

This is an appeal from the capital murder conviction of Johnie Cox, appellant, sentenced to death by lethal injection for the murder of three individuals. Cox raises seven points for appeal, but we find none have merit.

On November 1, 1989, Margaret Brown, William Brown and Marie Sullens were in their apartment in Kensett, Arkansas, when Cox came to see Ms. Sullens. Cox told police he had gone there to kill Ms. Sullens because he believed she was trying to murder his grandfather. Apparently she was looking after the grandfather and Cox thought she had attempted to kill him by leaving gas on in his apartment.

William and Margaret Brown were at the apartment when Cox arrived. He held a .22 pistol on William and had him bind Marie and Margaret with electrical cords and duct tape. Cox then tied William and bound all three together at the neck. Cox tried unsuccessfully to kill each of them by inflicting stab wounds with a knife and by strangling them with electrical cord. To assure their death he set fire to the house. All three individuals died from a combination of the stab wounds, strangulation and fire.

Cox was arrested on December 5, 1989, and gave a detailed confession of the murders. He was tried on three counts of capital murder, found guilty, and sentenced in a bifurcated proceeding to death by lethal injection on all three counts. Cox filed a motion for a new trial under Ark.R.Crim.P. 36.4 alleging his defense counsel was ineffective, but after a hearing the trial court denied the motion. Cox appeals from the conviction and the denial of his Rule 36.4 motion.

Before addressing appellant's arguments, we will first review the facts in comparison to other cases in which we have affirmed the death penalty. See Johnson v. State, 308 Ark. 7, 823 S.W.2d 800 (1992). We do so to achieve evenhandedness of the application of the death penalty. Collins v. State, 280 Ark. 312, 657 S.W.2d 546 (1983); Collins v. State, 261 Ark. 195, 548 S.W.2d 106 (1977), and Johnson v. State, supra. As was stated in Johnson:

The real issue is whether the wickedness, inhumanity, and heinousness of this murder is comparable with that of other murder cases in which we allowed the sentence of death to stand.

The medical examiner testified that Margaret Brown had a total of fourteen stab wounds in the neck, chest, breast and side, and had a electrical cord constricting her neck. He found she had died before the fire from a combination of stab wounds and strangulation. He testified that William Brown had wires around his neck but had not died of strangulation. He had two stab wounds, one in front and one in his back and was still alive at the time of the fire. He died from a combination of the stab wounds and the fire. Marie Sullens, who was sixty-eight years old, had been stabbed six times in the back and neck, some of the wounds penetrating the chest and lung. She was also alive when the fire started and died as a result of the stab wounds and the fire.

Statements taken from Cox's written confession and a video taped confession contained the following narrative of the murders:

I held the gun on Billy [William Brown] and made him tie Marie and Margaret ... He used electric cord to tie them up. I made him tie their hands and feet. Then I tied him up. I had him hold his hands over his head with his back to me. I ran the cord around his neck and had him put his hands down. That caused the cord to tighten around his neck....

[Billy] said [Margaret] had some type of sleeping pill and it was supposed to have been a nerve pill, ... so whenever they introduced me to that I said well, all of them need to go to sleep and I had them all take four pills, and whether they took them or not or spit them out I don't know....

Marie wanted to [go to the bathroom] so I cut the cords tying her to the others and carried her to the bathroom. I brought her back in and laid her on the bed and ... then that's when I tried to kill her, at least I thought I was trying to kill her.... I stabbed her several times. [Prior to that I had been in the kitchen] drinking Coke and eating chips.... I was waiting on the pills to take effect so that I could set a fire and smoke would kill them.... I got tired of waiting more or less because I had been there long enough. [So that's when I started to kill Margaret.] I yanked up a coat because she started making noises and stuff like that, and so I muffled it the best I could until I could get in position. I tried stabbing her and couldn't kill her, so I just took a shot at her and couldn't kill her, so I just took an electrical cord and wrapped it around her neck and held it with one of my feet and took my hands and pulled it up until I choked her to death, but she was even breathing after that.

Then I stabbed Billy in the chest and turned him over on [his wife Margaret] and stabbed him in the back. I figured he was dead, but he was alive.... I went to Marie and tried to cut her throat with that knife but it was too dull.... Well, [Marie] didn't say nothing else, and the wire was around her neck, and like I say, I was impatient, and I was in a hurry ... and then I went back into the kitchen and I drank some more Coke and ate some more chips, and then I got out of there after I set the fire.

In sum, the proof is overwhelming the three murders committed by Cox were brutal, inhumane and heinous, two of them perpetrated merely because the victims happened to be there. The crimes are fully comparable to those in other cases in which we allowed the sentence of death to stand. See Starr v. State, 297 Ark. 26, 759 S.W.2d 535 (1988); Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988); Simmons v. State, 278 Ark. 305, 645 S.W.2d 680 (1983), and Hayes v. State, 278 Ark. 211, 645 S.W.2d 662 (1983).

As grounds for reversal, appellant first argues a continuance should have been granted because his trial closely coincided with two Arkansas executions which generated considerable publicity. Neither execution had any connection to the appellant or to the case. Appellant has cited no authority for this point. Nor has he shown that he was in any way prejudiced; he merely argues in conclusory terms that "the publicity and attendant public mood is prejudicial" and that "likely created a prejudicial climate." We said in Cash v. State, 301 Ark. 370, 784 S.W.2d 166 (1990) on a question of change of venue due to pretrial publicity:

The appellant did not have a right to a jury totally ignorant of the crime. Bussard v. State, 300 Ark. 174, 778 S.W.2d 213 (1989). Our review of the voir dire of the jurors in this case shows that while some had heard of the case or read about it, none of those selected said they could not give the appellant a fair trial. Burnett v. State, 299 Ark. 553, 776 S.W.2d 327 (1989). What the appellant was entitled to and what he got in our judgment was a jury composed of persons who could and did decide the case on the testimony presented in court and not on the basis of news media coverage of the matter. Logan v. State, 299 Ark. 266, 773 S.W.2d 413 (1989).

The denial of a motion for a continuance is within the sound discretion of the trial court and a ruling denying such motion will only be reversed if there is an abuse of that discretion, Stone v. State, 290 Ark. 204, 718 S.W.2d 102 (1986), and the burden of demonstrating that abuse is upon the appellant. Wade v. State, 290 Ark. 16, 716 S.W.2d 194 (1986). To warrant reversal the appellant must additionally show that any abuse of discretion was prejudicial. Mann v. State, 291 Ark. 4, 722 S.W.2d 266 (1987).

As in Cash v. State, supra, we have reviewed the voir dire of the jurors and find only minimal notice by panel members of the two unrelated executions, in spite of repeated inquiries by counsel. None of the jurors selected said they could not give a fair trial and it can be fairly said the jury was composed of persons who could decide the case on the testimony presented and not on the basis of media coverage of two unrelated cases. Given that review of voir dire we find no merit in appellant's argument.

Appellant next argues the trial court erred in failing to hold our capital murder statute unconstitutional because it does not narrow the class of death eligibility. This argument was addressed and rejected in Johnson v. State, 308 Ark. 7, 823 S.W.2d 800 (1992).

Third, appellant argues the sentencing provisions of our death penalty statute violate the Constitution because they deprive the jury of showing mercy to the defendant and the trial court erred in refusing to give instructions which so informed the jury. Appellant maintains Ark.Code Ann. § 5-4-603 (1987) violates the Constitution as applied to this case, unless the trial court instructs the jury that it has the power to reject the death penalty. That statute provides:

The jury shall impose a sentence of death if it unanimously returns written findings that:

(a) Aggravating circumstances exist beyond a reasonable doubt; and

(b) Aggravating circumstances outweigh beyond a reasonable doubt all mitigating circumstances found to exist; and

(c) Aggravating circumstances justify a sentence of death beyond a reasonable doubt.

Appellant argues in his brief:

This court has indicated that a jury should be told that despite its findings that aggravating circumstances exist and outweigh those in mitigation, it can still exercise mercy in answering the third question as to whether the aggravating circumstances justify a sentence of death.... However, thus far this court has declined to invalidate the statute for its failure to so state or to order trial courts to give juries instructions to that effect.

In...