Ford v. State, CR

• Decision Date: 10 May 1982
• Docket Number: No. CR,CR
• Citation: 276 Ark. 98,633 S.W.2d 3
• Parties: Clay Anthony FORD, Appellant, v. STATE of Arkansas, Appellee. 81-104.
• Court: Arkansas Supreme Court

Page 3

633 S.W.2d 3

276 Ark. 98

Clay Anthony FORD, Appellant, v. STATE of Arkansas, Appellee.

No. CR 81-104.

Supreme Court of Arkansas.

May 10, 1982.

Rehearing Denied June 7, 1982.

Ken Cook, Crittenden County Deputy Public Defender, West Memphis, for appellant.

Steve Clark, Atty. Gen. by Leslie M. Powell, Asst. Atty. Gen., Little Rock, for appellee.

PURTLE, Justice.

The appellant was convicted of the crime of capital felony murder in Mississippi County Circuit Court, on change of venue from Crittenden County. Punishment was set at death by electrocution. Appellant argues twelve points for reversal, which will be set out and discussed separately. However, we do not find reversible error in any of them and affirm the action of the trial court.

The facts in this case reveal that Sergeant Glen Bailey of the Arkansas State Police encountered the appellant driving at a highly excessive rate of speed. The officer crossed over the highway median in order to give chase and radioed for assistance. Appellant was stopped at a blockade on the exit ramp from Interstate Highway 55 into the city of Marion, Arkansas. Two police cars were in front of him and he stopped a short distance before reaching the first car. A uniformed trooper started walking toward the appellant who began to back up but discovered the original officer had blocked him in from behind and was approaching him on foot. Appellant stopped his car, got out and fired point blank into Sergeant Bailey's chest critically wounding him. The officer died soon thereafter as a result of this wound. The appellant attempted to escape on foot but was apprehended a short time later in a nearby house. At the scene the officers determined that the vehicle appellant had been driving was stolen. They found a number of stolen articles in the vehicle. They further learned that appellant was an escapee from the Tennessee Department of Correction where he had been serving time for a number of felony convictions.

The incident was given wide publicity resulting in the court granting appellant's motion for a change of venue from Crittenden County to Mississippi County.

Over the objections of the appellant the fact that he was an escapee and serving time on the other sentences were allowed to be introduced. Also, it was shown that the automobile was stolen and that various items found in the car belonged to other people. The owners were allowed to identify their property during the course of the trial. The information was also challenged and the more standard defenses normally presented in capital felony trials were argued.

We will separately discuss the arguments on appeal.

I.

THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO QUASH THE INFORMATION.

The motion to strike the indictment was based upon the Eighth Amendment prohibiting cruel and unusual punishment. This argument has been presented to the court in many cases, and we have consistently ruled that our death penalty statute is constitutional. Westbrook v. State, 265 Ark. 736, 580 S.W.2d 702 (1979); Ruiz and Van Denton v. State, 265 Ark. 875, 582 S.W.2d 915 (1979); Swindler v. State, 264 Ark. 107, 569 S.W.2d 120 (1978); and Collins v. State, 261 Ark. 195, 548 S.W.2d 106 (1977). Appellant contended that the overlapping provisions of Ark.Stat.Ann. § 41-1501 (Repl.1977) with Ark.Stat.Ann. §§ 41-1502 and 41-1503 (Repl.1977) were arbitrary and discriminatory. We have also held constitutional these particular statute sections in Wilson v. State, 271 Ark. 682, 611 S.W.2d 739 (1981), and in Cromwell v. State, 269 Ark. 104, 598 S.W.2d 733 (1980), where it was stated "...we find no constitutional infirmity in the overlapping of the two sections, because there is no impermissible uncertainty in the definition of the offenses."

II.

THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION CHALLENGING THE DEATH QUALIFICATION VOIR DIRE OF PROSPECTIVE JURORS.

The "death qualified" jury was approved by the United States Supreme Court in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Since Witherspoon we have approved this procedure in many cases. See Ruiz and Van Denton v. State, supra; Collins v. State, supra; and Westbrook v. State, supra.

III.

THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S MOTION TO QUASH THE JURY PANEL.

The jury panel was selected by the jury wheel through a random selection process. The selection was by computer process from the list of registered voters of a voting district within Mississippi County. Additionally, prior to this trial, 300 names were again selected using the same process of jury wheel random selection. The court requested that 150 of the jurors report on the first day. Only 54 appeared. Five or six of these were black. The trial court excused a considerable number of jurors prior to the trial date. Eighteen were excused because they were 65 or older and did not wish to serve; 16 stated they were in bad health; and 12 others listed various hardships which caused the court to excuse them prior to the trial date. Several had moved from the district and a few of them were dead. There was nothing about this process which indicated an intent not to have a fair cross-section of the population of the district represented by the panel. Appellant's attorney made the statement that the state had a habit of excusing black jurors peremptorily. The panel as selected was all white. Although this could give the impression of discrimination, a closer examination reveals the selection was not in violation of the rule set out in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), and followed by us in Williams v. State, 254 Ark. 799, 496 S.W.2d 395 (1973). Appellant did not use the process utilized in Waters & Adams v. State, 271 Ark. 33, 607 S.W.2d 336 (1980), wherein we held the system used therein was discriminatory. There is no proof in the record that there was a conscious effort to exclude black jurors. Statistics concerning the number of blacks in Mississippi County were not presented until the appeal brief was filed. The random selection process used in this case does not guarantee that a proportionate cross-section of the community will serve on the jury nor is there a guarantee that any proportionate number of appellant's race will be seated on the jury. Swain v. Alabama, supra; and Williams v. State, supra. If it had been shown that it was the practice of the state to automatically exclude black jurors the result may well have been different, however there was no proof as to this point.

IV.

THE TRIAL COURT ERRED BY REQUIRING DEFENDANT TO VOIR DIRE THE PROSPECTIVE JURORS BEFORE THE STATE WAS REQUIRED TO ACCEPT OR STRIKE.

Appellant sought to have the prospective jurors voir dired separately. However, the court found that there was not enough room in the courthouse to utilize this process. Although appellant thought the library in the courthouse would be adequate for this purpose, the court exercised its discretion in rejecting this suggestion.

In Clark v. State, 258 Ark. 490, 527 S.W.2d 619 (1975), we held it reversible error to require a defendant to examine all of the jurors drawn from the panel each time before the state was required to either accept or reject a juror, it being felt that this process would afford an unfair advantage to the state. However, it appears that the appellant waived the requirements of Ark.Stat.Ann. § 43-1903 (Repl.1977) by making the suggestion that this process would be satisfactory. It may be noted that this process was utilized at the request of defense counsel after consultation with appellant. We do not overlook the fact that appellant stated he still did not waive his objection to questioning the jurors other than individually. However, the agreement to use this method was made only after consulting with the appellant, and we do not find it to be reversible error. Also, only ten of the twelve authorized peremptory challenges were exercised by appellant. See Crutchfield v. State, 251 Ark. 137, 471 S.W.2d 361 (1971); and Stroud v. State, 169 Ark. 348, 275 S.W. 669 (1925).

V.

THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO PROHIBIT JURY DISPERSAL.

It is hard to understand why this argument is presented when the appellant admits that such matters were within the discretion of the trial court. Although it may be preferable to sequester the jury, it is a matter upon which the trial court must decide. The burden of proof to show that the appellant did not receive an impartial trial because of failure to sequester the jury is upon the appellant. This burden was not met. Ark.Stat.Ann. § 43-2137 (Repl.1979); Nail v. State, 231 Ark. 70, 328 S.W.2d 836 (1959); Hutcherson v. State, 262 Ark. 535, 558 S.W.2d 156 (1977).

VI.

THE TRIAL COURT ERRED BY ALLOWING THE MENTION OF APPELLANT'S PRIOR FELONY CONVICTIONS DURING THE STATE'S OPENING STATEMENT.

The statement made by the state was: Officer Brackin further continuing his investigation determined that at the time this occurred the defendant, Clay Anthony Ford, was wanted for an escape from the Memphis Community Service Center where he was serving a sentence of-completing a sentence of three years on convictions of burglary in the third degree, grand larceny and burglary in the second degree.

The court had taken into consideration the appellant's motion in limine prior to the commencement of the trial and had ruled that the state would be permitted in its case in chief to show that appellant was a prior convicted felon in regard to those convictions which he was serving at the time of his escape. Additionally, the court later held that these convictions were allowable for the purpose of showing intent. The court had made it clear that the motion in limine was granted as to any other convictions which the appellant may have had. Since the proof showed that the appellant was serving time for these particular convictions prior to his escape, it is proper to refer...