Earl v. State

• Decision Date: 23 February 1981
• Docket Number: No. CR,CR
• Citation: 272 Ark. 5,612 S.W.2d 98
• Parties: Hezile EARL, Jr., Appellant, v. STATE of Arkansas, Appellee. 80-67.
• Court: Arkansas Supreme Court

Page 98

612 S.W.2d 98

272 Ark. 5

Hezile EARL, Jr., Appellant, v. STATE of Arkansas, Appellee.

No. CR 80-67.

Supreme Court of Arkansas.

Feb. 23, 1981.

Robert L. Lowery, Little Rock, for appellant.

Steve Clark, Atty. Gen., C. R. McNair, III, Asst. Atty. Gen., Little Rock, for appellee.

ADKISSON, Chief Justice.

On January 18, 1979, appellant, Hezile Earl, Jr., George Burton, and Eugene Walker were jointly charged in Pulaski County Circuit Court with the capital felony murder and aggravated robbery of Ray Wood at the R & I Garage in North Little Rock, Arkansas.

After the court granted appellant's motion for severance, he was the first to be tried on July 28, 1979. He was convicted and sentenced to life without parole for capital felony murder, and 50 years for aggravated robbery.

Where life imprisonment or death was imposed in the court below, the supreme court shall review the entire record for errors prejudicial to the right of the appellant. Rule 36.24, Ark.Rules Crim.Proc., Vol. 4A, Ark.Stat.Ann. (Repl.1977). To facilitate this review, Rule 11(f), Rules of the Supreme Court, Vol. 3A, Ark.Stat.Ann. (Repl.1979) was promulgated:

(T)he appellant must abstract all objections that were decided adversely to him in the trial court together with such parts of the record as are needed for an understanding of the objection. The attorney general will make certain that all objections have been so abstracted and will brief all points argued by the appellant and any other points that appear to him to involve prejudicial error.

This means that both the counsel for appellant and counsel for the State must examine the record page by page to be certain that all the objections are brought to the court's attention. For many years the members of this court made that examination in capital cases before the rule was amended to read as it does now. Curry v. State, 270 Ark. 570, 605 S.W.2d 748 (1980). Appellant's points to be relied on will be addressed as they appear in his brief. Some of the points will be consolidated for consideration by the court since the issues of law and fact are common to each.

THE COURT PROPERLY DENIED APPELLANT'S MOTION TO QUASH THE

INFORMATION ON THE GROUND THAT THE STATUTE IS

UNCONSTITUTIONAL.

Appellant argues that Ark.Stat.Ann. § 41-1501(1)(a) (Repl.1977) and Ark.Stat.Ann. § 41-1502(1)(a) overlap and are, therefore, unconstitutionally void for vagueness. It is true that the statutes overlap. The capital murder statute requires proof of the commission or attempt to commit at least one of seven specific felonies. The first degree murder statute is violated by proof of the commission or attempt to commit any felony, which we have held includes the seven mentioned in the capital murder statute. These statutes are not vague, since they clearly set out what acts are prohibited. We find no constitutional infirmity in the overlapping of the two sections because there is no impermissible uncertainty in the definition of the offenses. Cromwell v. State, 269 Ark. 104, 598 S.W.2d 733 (1980).

THE COURT DID NOT ERR IN DENYING

APPELLANT'S MOTION FOR FUNDS FOR AN EXPERT WITNESS.

Appellant contends that the trial court's denial of funds to the defendant for purposes of employing a psychologist (to prove his mental condition at the time of the alleged crime as it related to issues of guilt and mitigating circumstances at trial) "deprived appellant of effective assistance of counsel and of due process of law in violation of the Constitution of the United States and of the State of Arkansas." This contention is without merit.

In Andrews v. State, 265 Ark. 390, 578 S.W.2d 585 (1979), we held that the defendant did not have the right to appointment of a psychiatric expert to assist in his defense under the Sixth Amendment to the United States Constitution. In Hale v. State, 246 Ark. 989, 440 S.W.2d 550 (1969), we found no denial of due process or equal protection of the laws under our statutory procedure whereby a psychiatric examination is provided by the staff of the state hospital.

THE COURT DID NOT ERR IN ADMITTING INTO EVIDENCE TWO

PHOTOGRAPHS OF THE VICTIM.

Only two photographs of the victim lying on the floor of his repair garage were admitted while others were excluded as being "more inflammatory then informative."

A photograph is admissible when it tends to corroborate the testimony of a witness, shows the nature and extent of the wounds or the savagery of an attack, or is useful in enabling a witness to better describe objects portrayed or the jury to better understand the testimony. Davis v. State, 246 Ark. 838, 440 S.W.2d 244 (1969); Perry v. State, 255 Ark. 378, 500 S.W.2d 387 (1973); Witham v. State, 258 Ark. 348, 524 S.W.2d 244 (1975).

Appellant asserts that the prejudicial nature of these photographs is not outweighed by any relevancy they may have had when tested by Rule 403, Uniform Rules of Evidence, Ark.Stat.Ann. § 28-1001 (Repl.1979).

Under Rule 403, the weighing of these opposing factors lies within the sound judicial discretion of the trial court. We find no abuse of discretion in this case. See Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979).

THE COURT ERRED IN PERMITTING CROSS-EXAMINATION AS TO

EVIDENCE NOT FURNISHED ON DISCOVERY.

Appellant argues on appeal that the trial court erred in allowing the State to cross-examine him regarding a statement he allegedly made to Prairie County Sheriff Mike Grady. The State failed to disclose this alleged statement after appellant had filed a timely motion for discovery under Rule 17, Ark.Rules Crim.Proc., Vol. 4A, Ark.Stat.Ann. (Repl.1977).

On May 16, 1979, appellant filed two motions: a motion "to suppress all statements obtained from defendant by the State" alleging they were involuntary and were obtained in violation of defendant's rights under the Constitution of the United States and the State of Arkansas; and a motion for discovery requesting "a true, accurate, and complete copy of any and all written or recorded statements and the substance of any oral statements made by the defendant or a co-defendant."

On May 21, 1979, the State responded to appellant's discovery request by stating: "(O)n or about May 7, 1979, counsel for defendant was given access to the State's file at which time counsel for defendant copied ... the entire contents of this file."

On July 24, 1979, a Denno hearing was held at which the trial court determined the voluntariness of certain taped and typed statements given by appellant to North Little Rock detectives Thorne and Lamberson at the Prairie County Jail on January 11, 1979. However, the State made no mention at this hearing of an undisclosed statement that appellant had allegedly given on the same morning to Sheriff Grady of Prairie County.

During the trial, appellant took the stand in his own defense and denied having voluntarily made any inculpatory statement to anyone regarding this crime. During cross-examination, he was asked by the State if, after his confession to Thorne and Lamberson, he told Sheriff Mike Grady that he felt a lot better after getting that off his chest. At that time counsel for appellant stated: "(T)he defendant wants the record to reflect that the defendant has never been informed of any such statement as would be a response to the question just asked by the prosecutor concerning what the defendant might have said to Mike Grady and we move for a mistrial." This was denied.

Later, in the State's rebuttal, Sheriff Grady testified over the defense's objection that appellant had stated to him before leaving the jail on the morning of January 11, that "he was glad that he had it off his chest."

Rule 17.1, Ark.Rules Crim.Proc. states: "(T)he prosecuting attorney shall disclose to the defense counsel, upon timely request, ... any written or recorded statements and the substance of any oral statements made by defendant...."

Here there is no question that a "timely request" was made by the defense, but it is clear whether the State furnished the defense the alleged inculpatory statement by the defendant as requested.

The appellee asserts that the use of appellant's statement for use of impeachment of Sheriff Grady was proper and cites Spillers v. State, 268 Ark. 217, 595 S.W.2d 650 (1980) as authority therefor. However, the issues were not the same. Here the objection is based on the prosecutor's failure to furnish this statement as requested under the Ark.Rules of Criminal Procedure.

The "open-file policy" of the Pulaski County Prosecuting Attorney's Office may be a time saver for both the State and the defense; however, as here, it often results in the court being unable to determine whether discovery has been complied with under the Arkansas Rules of Criminal procedure.

There is no doubt about the timeliness of the request for the information, about the State's obligation to furnish the information, or about the prejudice resulting to defendant from use of such information in cross-examination, in rebuttal, and again in closing argument. If our discovery rules are to be meaningful, they must be complied with where, as here, a timely request is made, there is no finding of compliance by the State, and there is resulting prejudice to the defense. See Williamson v. State, 263 Ark. 401, 565 S.W.2d 415 (1978).

THE STATE IS REQUIRED TO CALL MATERIAL WITNESSES AT A DENNO HEARING.

Appellant argues that the State did not meet its burden of proving the voluntariness of his confession since they failed to call Sheriff Grady as a material witness. Sheriff Grady accompanied co-defendant Burton, after his confession, from the interview room back to the cell; and then took appellant out of the cell and delivered him to the interview room. Appellant testified at the Denno hearing, that during this exchange of prisoners:

(M)ike Grady came back and got George out of the cell and took George and talked to him for at least forty-five minutes or close to an hour. Then, after they got...