Cromwell v. State, CR

• Decision Date: 27 May 1980
• Docket Number: No. CR,CR
• Citation: 269 Ark. 104,598 S.W.2d 733
• Parties: Larry CROMWELL, Appellant, v. STATE of Arkansas, Appellee. 79-223.
• Court: Arkansas Supreme Court

Page 733

598 S.W.2d 733

269 Ark. 104

Larry CROMWELL, Appellant, v. STATE of Arkansas, Appellee.

No. CR 79-223.

Supreme Court of Arkansas.

May 27, 1980.

John W. Achor, Public Defender by Theodore Holder, Deputy Public Defender, Little Rock, for appellant.

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

GEORGE ROSE SMITH, Justice.

Cromwell was convicted by a jury of attempted capital murder, with a sentence of life imprisonment, and of aggravated robbery, with a sentence of imprisonment for 25 years. He argues two grounds for reversal.

The two offenses occurred, as part of the same incident, on October 19, 1978. On that day a man entered a small grocery in Little Rock, used a pistol to hold up the proprietor, Willie Woods, and took the money in the cash register. The robber then ordered Woods to get down behind the counter. When Woods was almost prone, the robber shot him in the chest, in what seems to have been intended as an execution type killing. The shot, however, was not fatal. Woods described his assailant to the police and at the trial some 11 months later identified Cromwell as the criminal. Cromwell testified that he was elsewhere at the time of the incident and had nothing to do with it.

First, it is contended that paragraph (1)(a) of the capital murder statute is void for vagueness. Ark.Stat.Ann. § 41-1501(1)(a) (Repl.1977). This paragraph provides that a person commits capital murder if, in the commission of or attempt to commit rape, kidnapping, arson, vehicular piracy, robbery, burglary, or escape in the first degree, he causes the death of any person under circumstances manifesting extreme indifference to the value of human life. The next section of the Criminal Code provides, in almost identical language, that a person commits murder in the first degree if he commits or attempts to commit "a felony" in the same circumstances. § 41-1502(1)(a). Hence under the literal language of the two sections Cromwell might have been charged either with capital murder or with first-degree murder, because robbery is a felony and therefore fits the definition of each offense.

The appellant, in arguing the void-for-vagueness doctrine, relies upon the rule that the legislature must set reasonably clear guidelines for law enforcement officials and triers of fact, to prevent arbitrary and discriminatory law enforcement, Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974), and upon the companion principle that a vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with attendant dangers of arbitrary and discriminatory application. Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). It is insisted that our statutes are therefore void for vagueness, because the prosecuting attorney or the trier of fact may arbitrarily decide whether an accused is to be charged with or convicted of capital murder, a capital offense, or murder in the first degree, punishable by imprisonment only.

This argument, as applied to our statutes, is not sound. In the cases cited, the statutes themselves were vague, leaving enforcement to the selective whim of the policeman, prosecutor, judge, or jury. For instance, in Goguen the court held that the language, "publicly . . . treats contemptuously the flag of the United States," did not define the offense with sufficient precision to give adequate warning of what conduct was prohibited. The definition of the offense was therefore being delegated to the law enforcement officials, who in that case sought to convict Goguen for having worn a small United States flag sewn to the seat of his trousers.

Here, by contrast, the appellant does not complain that the language of our statutes is vague. Those statutes, in plain words, prohibit one from causing the death of any person in the commission of various felonies, which are defined elsewhere in the Code. The other statutory language, "under circumstances manifesting extreme indifference to the value of human life," has already been upheld against a charge of vagueness. Martin v. State, 261 Ark. 80, 547 S.W.2d 81 (1977).

Instead of arguing that our statutes themselves are vague, the appellant isolates a separate consequence of the void-for-vagueness doctrine and insists that our statutes confer arbitrary power upon prosecutors and juries to select between capital murder and murder in the first degree.

The answer to this argument is that the possible exercise of such discretionary authority is not fatal to the statutes, for even in capital cases, which this one is not, the evil to be guarded against is the capricious selection of a group of offenders. Gregg v. Georgia, 428 U.S. 153, 199, 96 S.Ct. 2909, 2937, 49 L.Ed.2d 859 (1976). In the first place, it is impossible to avoid the use of general language in the definition of certain offenses. State v. Weston, 255 Ark. 567, 501 S.W.2d 622 (1973). Moreover, the prosecutor or grand jury is often compelled to choose one of two or more offenses, no matter how precise the statutes may be. For example, the conflicting testimony of eyewitnesses may, depending on their varying credibility, establish capital murder if the accused committed robbery but only murder in the first degree if he committed a lesser felony such as theft of property, battery, or aggravated assault. §§ 41-2103, -2203, -1601, and...