Davis v. State

• Decision Date: 05 May 1969
• Docket Number: No. 5378,5378
• Parties: Allen Frank DAVIS, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 244

440 S.W.2d 244

246 Ark. 838

Allen Frank DAVIS, Appellant, v. STATE of Arkansas, Appellee.

No. 5378.

Supreme Court of Arkansas.

May 5, 1969.

Rehearing Denied June 2, 1969.

Jack Holt, Sr., and Bailey, Trimble & Holt, Little Rock, for appellant.

Joe Purcell, Atty. Gen., Don Langston, Asst. Atty. Gen., Little Rock, for appellee.

BYRD, Justice.

On January 19, 1967, appellant Allen Frank Davis shot and killed his estranged wife Sharon Davis with a 30--30 caliber rifle. The jury found him guilty of murder in the first degree without recommendation and he stands before this court sentenced to death by electrocution. His defense was not guilty by reason of insanity.

The record shows that appellant and his wife Sharon separated in August of 1966. Following the separation, appellant lived with his mother. On the date involved, appellant had caused his wife to be kept under surveillance by a friend. About quitting time appellant joined his friend across the street from where his wife worked. When he joined his friend he had with him a denim jacket described by his friend as being stiff enough to stand in the corner alone. While they were watching, his mother-in-law drove by with his children to pick up his wife. Appellant told his friend that he hated his mother-in-law but liked her cooking and, in parting, told him he was going to do something that he should have done a long time ago. His mother-in-law and Sharon proceeded to the Red Bird Laundromat and Service Station on Central Avenue. Appellant followed. At the laundromat he exchanged some words with his wife before he shot her. He also shot his mother-in-law when she ran into the laundromat for help. Witnesses testified that as he drove away he brandished his shooting iron and shouted, 'Sharon, how do you like that.' Appellant was arrested at his mother's home a few minutes later where he was sprawled out on a bed in a stupor after taking some pills. The 30--30 rifle was found wrapped in his denim jacket in a dog pen.

POINT 1. Appellant, in arguing that he was deprived of his rights under the fifth amendment of the United States Constitution by virtue of the fact that he was tried and convicted upon an information, readily recognized that we have rejected this argument many times. Prosecution by information is authorized by Amendment 21 of our constitution. As we have pointed out many times the Federal Courts have not held that prosecution by information is prohibited by the United States Constitution. For this reason we hold appellant's first point to be without merit.

POINT 2. Appellant contends here that the trial court erred, under the holding in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), in excluding jurors who had conscientious scruples against capital punishment. A subsidiary argument is that the trial court insured the prosecution's request for a conviction and death sentence by excluding all prospective jurors who said they opposed the death sentence or had religious or conscientious scruples against the death penalty. We do not believe that the record sustains appellant's argument.

As we read the record, the trial court followed the Witherspoon case, excluding Justice Douglas's concurrence, and our own case of Atkins v. State, 16 Ark. 568 (1855). In the latter case we pointed out:

'Whatever may be a man's view of capital punishment as a question of policy, the jury box is not a proper place for him to consider such policy. There he is obliged, by his oath, to try the guilt or innocence of the accused, according to law and evidence, and not to set up his own private opinion against the policy of the law, which he is bound, as a good citizen, to abide by and administer, so long as it is in force, and until it is repealed by the constituted authority. See the authorities collected on this subject in Wharton's Crim. Law 857, 858.'

To follow appellant's argument to its logical conclusion would create a kind of anarchy in our system of government whereby the minority will always hold a veto over any established public policy. For instance, since the holding in Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968), it would be almost impossible to enforce some provisions of the 1964 Civil Rights Act, if a court were forced to accept jurors whose private opinions are contrary to the policy of the law. For these reasons we find this point without merit.

POINT 3. We find no merit in appellant's argument that the trial court abused its discretion in admitting in evidence pictures taken by William Ralph Dever, Jr. The record shows that Mr. Dever is a commercial photographer and a mail man. He has a police radio receiver in his car. When he heard the call concerning the shooting he immediately went to the scene and took the pictures of which appellant complains. In permitting the pictures to be introduced, the trial court pointed out that they were taken within a reasonable time after the incident involved and that they helped explain the testimony as to what actually occurred, nothing more, nothing less.

In Stewart v. State, 233 Ark. 458, 345 S.W.2d 472 [1961], we pointed out that it is within the sound discretion of the trial judge to permit the introduction of photographs to describe and to identify the premises which were the scene of the crime, to establish the corpus delicti of the crime charged, to disclose the environment of the crime at the time it was committed and to corroborate testimony. See also, Reed v. McGibboney, 243 Ark. 789, 422 S.W.2d 115 (1967).

Under this point appellant also argues that the pictures introduced into evidence concerning Mrs. Knight's shooting and the bloodstained floor from which she was removed are not relevant, material or competent. Here, too, we find this was a matter within the discretion of the trial court. The record shows that at the time Mrs. Knight picked up appellant's estranged wife, appellant expressed hatred for Mrs. Knight, his mother-in-law. Since the shootings were all one occurrence we are unwilling to say that the photographs could not be introduced for the purpose of showing malice.

POINT 4. On the issue of insanity, appellant used two expert witnesses, Dr. Shelton Fowler, a psychiatrist on the Arkansas State Hospital staff, and Dr. Robert F. Shannon, a private psychiatrist. Dr. Fowler's treatment was limited to his duties as an employee of the state hospital. Dr. Shannon was employed by appellant's mother for purposes of testifying at the trial.

To rebut appellant's expert testimony, the state called Dr. Yohe, a psychiatrist hired by Garland County to examine appellant for purposes of determining his sanity, and Dr. Robert Lewis, a psychiatrist originally employed by appellant mother for medical treatment and psychiatric evaluation immediately following appellant's arrest. Appellant argues that the testimony of the latter two doctors is privileged within the meaning of Ark.Stat.Ann. § 28--607 (Repl.1962). That statute provides:

'Hereafter no person authorized to practice physic or surgery and no trained nurses shall be compelled to disclose any information which he may have acquired from his patient while attending in a professional character and which information was necessary to enable him to prescribe as a physician or do any act for him as a surgeon or trained nurse. Provided, if two (2) or more physicians or nurses are, or have been in attendance on the patient for the same ailment, the patient by waiving the privilege attaching to any of said physicians or nurses, by calling said physician or nurse to testify concerning said ailment, shall be deemed to have waived the privilege attaching to the other physicians or nurses.'

We find that when appellant called Dr. Shannon, as distinguished from Dr. Fowler, who may have served in a different capacity, he waived any privilege which he may have had a right to claim under the statute.

POINT 5. Appellant here argues that the verdict of the jury ignores the overwhelming evidence of insanity and that their verdict is contrary to the evidence and to the law concerning insanity. Our cases, without exception, hold that when there is conflicting evidence upon an issue the matter should be presented to the jury. In this instance there was testimony from which the jury could have found either way. In addition to the lay testimony, two doctors testified that appellant was insane and two doctors for the state testified that appellant was mentally competent. Therefore we find this contention without merit.

POINT 6. In his argument on instructions, appellant admits that the insanity instruction given by the trial court is in accordance with Bell v. State, 120 Ark. 530, 180 S.W. 186 (1915), but puts forth the argument adopted by the author in 20 Ark. Law Review 123 that the rule in Bell v. State represents 'the hardened attitude'. Appellant's description of the insanity rule laid down in Bell v. State is that of the author of the law review article referred to above. We do not necessarily accept as accurate appellant's description of the rule there laid down. However, we do acknowledge that the rule of who has the burden of proof on the issue of insanity is not uniform in the many jurisdictions in this nation. The rule in Bell v. State has been applied many times by this court and in a number of cases in which other rules have been rejected. See Stewart v. State, 233 Ark. 458, 345 S.W.2d 472 (1961). We again reaffirm Bell v. State in holding appellant's objections to the trial court's instruction no. 5 to be without merit.

Appellant also complains of error in the trial court's refusal to give his instructions numbers 1 and 3. His instruction no. 1 had to do with the burden of proof in the whole case and was covered by other instructions given by the court. Appellant's instruction no. 3 merely gave a definition of preponderance of the evidence, and...