Esmeyer v. State

Decision Date16 September 1996
Docket NumberNo. CR,CR
Citation930 S.W.2d 302,325 Ark. 491
PartiesLarry Earl ESMEYER, Appellant, v. STATE of Arkansas, Appellee. 95-1027.
CourtArkansas Supreme Court

J. T. Skinner, Tom Thompson, Batesville, for appellant.

Kelly K. Hill, Asst. Attorney General, Little Rock, for appellee.

BROWN, Justice.

Appellant Larry Earl Esmeyer appeals his convictions for first-degree murder and attempt to commit first-degree murder, and his sentence of 70 years' imprisonment. He argues that the jury was tainted, that the prosecuting attorney failed to disclose exculpatory evidence, that statements given to the police should have been suppressed, and that admission of his waiver-of-rights form into evidence and cross-examination into his justification defense were prejudicial. We find no merit in any of these points, and we affirm.

The appeal arises out of the shooting death of Rita Passmore and the wounding of her companion, Mark Williams. On June 3, 1994, Passmore and Williams were traveling in a black Pontiac Grand Prix on a gravel road called Scroggins Road in Independence County. They almost collided with Esmeyer, who was traveling in the opposite direction in a white Ford Tempo and who was angered by the incident. Esmeyer turned his car around and followed Passmore and Williams down Scroggins Road. According to witnesses, it was a high-speed chase. Esmeyer testified at trial that he first lost the black car, then spied it parked in a parking lot beside a Church of Christ. He pulled up beside the car and talked to Passmore, who was the driver. At that point, the stories of Esmeyer and Williams diverge. Esmeyer testified that Passmore cursed and said Esmeyer could not tell her how fast to drive, that she did not care at all about Esmeyer's grandchildren, who might be placed in jeopardy by her driving, and that he should get out of her way. According to Esmeyer, Passmore then pulled a gun, and he ducked, pulled his own .22 caliber revolver from under the seat, and came up shooting. He shot Passmore five times in the head at close range and killed her. He also wounded Williams in the back of the head. The level of alcohol in Passmore's body according to the medical examiner, was consistent with the consumption of about two beers.

At trial, Williams denied that either he or Passmore had a gun but later admitted that he and Passmore had been drinking beer and smoking marijuana. After the shooting commenced, he exited his side of the car and ran first to the church and then to the home of Hazel Sharp. Williams forced his way inside the home, and Ms. Sharp called 911. She later related to police officers that the white car had been chasing Williams. She testified that she initially heard shots coming from the Church of Christ parking lot and subsequently heard three more shots as Williams was entering her house.

The following day on June 4, 1994, a composite drawing of the assailant was composed by police officers with Williams's help. The composite drawing was aired by a regional television station on the 10:00 p.m. news that same day. Esmeyer saw the telecast, and at about 12:45 a.m. the following morning, he called his first cousin, Mike McDougal, who worked for the Independence County Sheriff's Department. He asked Officer McDougal if he was looking for a white Ford Tempo, and after McDougal responded affirmatively, Esmeyer told the deputy sheriff that he owned one. Officer McDougal asked Esmeyer if he had shot anyone, and Esmeyer answered that he needed to talk to him.

Officer McDougal contacted Officer Jeff Everetts, also of the Sheriff's Department, and the two men went to Esmeyer's home. They advised Esmeyer of his Miranda rights and had him execute a waiver-of-rights form. Esmeyer then answered questions about the location of the gun before invoking his right to counsel. After asking for counsel, he made additional comments to the deputy sheriffs. Esmeyer was arrested and charged with capital murder and attempted capital murder. Following a jury trial, he was convicted of first-degree murder, for which he received 40 years, and attempted first-degree murder, for which he received 30 years. The trial court ran the two sentences consecutively.

I. Tainted Jury Panel

Esmeyer's first point on appeal arises out of the jury selection. During the selection of the alternate jurors, it was brought to the trial court's attention that a potential juror, Robert Loggains, may have made inappropriate comments in the presence of other jurors. Two of Esmeyer's daughters testified that they had heard Loggains, who was being questioned as a potential alternate juror, say "[L]ook at that killer between his two high-dollar attorneys." Loggains testified that he did not make the statement or form any opinion about the case. The trial court, nevertheless, excused Loggains for cause.

After a recess, the prosecuting attorney told the trial court that Loggains apparently made additional statements as he was leaving the courtroom. Officer Alan Cockrill of the Sixteenth Judicial District Drug Task Force testified that he heard Loggains speaking down a stairwell to one or more persons in the basement area where the jurors were located. Officer Cockrill heard Loggains state that he should have kept his mouth shut, for if he had done so, he could have "hung" Esmeyer. He also called Esmeyer a "yankee." A woman responded that Esmeyer was from the area, but Loggains answered that Esmeyer had been up North long enough to learn "their ways." Loggains also called Esmeyer a murderer.

The parties continued voir dire until the last alternate was seated. The trial court then asked Esmeyer's counsel if he was going to move for a mistrial based on Loggains's comments. Counsel stated that he was not seeking a mistrial at that point and expressed satisfaction with the composition of the jury.

Following that, remaining members of the venire were asked by the trial court whether they heard Loggains's remarks. Four members stated that they had heard various remarks from a man who fit Loggains's description. They testified that they generally ignored Loggains even though they had heard him say that he had made up his mind.

Esmeyer then moved for a mistrial on the basis that the jury was tainted. The prosecuting attorney responded that there had been extensive voir dire with regard to the seated jury and that the jurors had indicated that they had not heard anything when asked by the court. At that point, the trial court began questioning the jurors individually. Each juror denied hearing Loggains's comments. One alternate juror, Holly Gage, testified that she heard a man fitting Loggains's description make a racial comment that had nothing to do with the case, but she stated that what she heard would not affect her ability to serve as a juror. The trial court then announced that it was satisfied with the jury and denied the motions for declaration of a mistrial and to quash the jury. The court specifically ruled that there was not sufficient evidence, after speaking to each juror, to show that the panel was tainted.

Esmeyer now contends that the trial court abused its discretion in denying the motions to quash the panel or for declaration of a mistrial. A jury, though, is presumed to be unbiased and qualified to serve, and the burden is on the appellant to show otherwise. Cooper v. State, 324 Ark. 135, 919 S.W.2d 205 (1996); Franklin v. State, 314 Ark. 329, 863 S.W.2d 268 (1993); McFarland v. State, 284 Ark. 533, 684 S.W.2d 233 (1985). It is for the trial court to decide whether the jurors are qualified, and that finding will not be reversed absent a showing of abuse of discretion. Goins v. State, 318 Ark. 689, 890 S.W.2d 602 (1995); Cooper v. State, supra; Franklin v. State, supra; McFarland v. State, supra. In addition, a mistrial is a drastic remedy and appropriate only when the error is beyond repair and cannot be corrected by any curative relief. Goins v. State, supra. The trial court has broad discretion in deciding the issue. Id.

A scenario comparable to the instant case occurred in Goins v. State, supra. In that case, this court declined to reverse the trial court's refusal to remove jurors for cause where the trial court had given the defendants the opportunity to explore the bias of jurors. In Goins, the defendants did not object to any of the jurors, and they did not identify any juror on appeal who should not have been seated. The same holds true in the case before us. Here, the trial court gave Esmeyer the opportunity to question the jurors about Loggains's comments, but he did not do so. Moreover, he did not object to any specific juror and did not give his reasons for failing to do so. Hence, no prejudice was, shown and any assertion that the jury was tainted is speculative and does not rise to the level necessary to reverse the trial court's decision.

II. Discovery Violation

Esmeyer next contends that the prosecuting attorney violated due process and Ark. R.Crim. P. 17.1(d) by not disclosing exculpatory evidence. See also Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). He specifically complains that during Officer Jeff Everetts's testimony at trial, the police officer revealed that a month or two after the shooting, he had heard that a pistol involved was hidden in an outhouse by the church. He went to investigate but found no gun. Officer Everetts admitted that he did not write about this rumor and his later search in his investigative notes. Based on this revelation, Esmeyer moved for a declaration of a mistrial at the close of the State's case due to the State's failure to notify him of the gun rumor. He complained that he had insufficient time to make an independent search of the outhouse and, thus, was denied the opportunity to search for the most critical piece of evidence to his claim of self-defense.

The State counters that Officer Everetts testified that he searched Williams, Passmore, and their...

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