Franklin v. State
| Decision Date | 04 October 1993 |
| Docket Number | No. CR,CR |
| Citation | 314 Ark. 329,863 S.W.2d 268 |
| Court | Arkansas Supreme Court |
| Parties | Dectric FRANKLIN, Appellant, v. STATE of Arkansas, Appellee. 92-1190. |
R.S. McCullough, Rita F. Bailey, Little Rock, for appellant.
Clint Miller, Asst. Atty. Gen., Little Rock, for appellee.
This is a case involving the shooting of two men who were self-appointed security guards at a North Little Rock apartment building. Both men were shot in the back, and one was killed. The appellant, who was age 16 at the time of this offense, was convicted of one count of capital murder and one count of attempted capital murder. He was sentenced to life in prison without the possibility of parole for capital murder and thirty years imprisonment plus a fine of $15,000.00 for attempted capital murder.
The appellant filed a notice of appeal before the judgment was entered and has not filed a motion to file a belated appeal. He raises seven issues on appeal: whether the trial court erred by (1) not promptly ruling on his Batson motion; (2) not sensitizing or allowing the jury to be sensitized to the racial issue present in this case; (3) not granting his for-cause challenges; (4) not granting him more peremptory challenges; (5) allowing the State to question him about his right to remain silent; (6) not instructing the jury on lesser included offenses; and (7) conducting a trial that effectively denied him his rights to due process and to a fair trial.
We hold that we do have jurisdiction to hear this appeal, and we affirm.
The victims of the shooting, Richard Campbell and Thomas Bryan, had apartments in a building located at 615 Maple Street in North Little Rock. After talking to the owner of the building about a neighborhood watch program, Campbell took it upon himself to become a security guard for the area. He bought a security guard uniform, a night stick, whistle, mace, and a flashlight.
On the evening of July 10, 1991, Campbell asked Bryan if he also wanted to become involved as a guard. Bryan agreed and pinned a security guard patch on his shirt. Bryan took a baseball bat with him when he went out to join Campbell on patrol. It was after 11:00 p.m., and several youngsters, including Franklin, were standing on the corner of 620 Maple Street. They began taunting Campbell and Bryan, asking them if they thought they were police officers. Bryan approached the group and got into a verbal altercation with an individual later identified as the appellant. Campbell came over to Bryan and suggested that they go inside and put the baseball bat away. A witness later testified that he heard the appellant then state "he was going to shoot some white people." The two men had just walked through the front door and were entering the hallway to their apartments when a youngster later identified as Franklin ran up behind them and fired at least four shots at them. Three shots hit Campbell in the back and one hit Bryan in the back. Campbell died shortly after arriving at the hospital. Bryan was treated at the hospital and released. Both victims were white. Franklin is black.
An information was filed charging the appellant with capital murder for the shooting death of Richard Campbell, and attempted capital murder for the shooting of Thomas Bryan. The trial began on April 20, 1992, and the death penalty was requested by the State. Franklin at this time was age 17. Before voir dire began, the appellant's attorney asked the circuit court to sensitize the jury to the fact that Franklin was black and the victims were white. The court refused the request stating that it thought that the request was "racist." The court went on to state that the appellant's attorney could "sensitize" the jury but that the court was not going to do this.
Prospective juror Ms. Georgia Davis was asked on voir dire if she could consider imposing the death penalty to which she responded "I guess." She was the fifth juror called and the first black juror. Subsequently, when asked if she could impose the death penalty on this defendant Ms. Davis responded, "I don't know" and "It would be hard." When asked if she could put her name on a verdict form that imposed the death sentence Ms. Davis stated, "I'd have to think about it." Ms. Davis said she was able to sign the verdict form in a theft case but that it was "heavy on my heart."
Following this voir dire, the State excused Ms. Davis by peremptory challenge. The defense made a Batson motion and argued that Ms. Davis had not expressed any more caution with regard to whether she could impose the death penalty than the other potential jurors who had been accepted by the State had. The circuit court took the motion under advisement. The defense did not object to the court's action at this time. After noon on the first day of trial, the court still had not ruled on the Batson motion and instructed Ms. Davis to return to court the next day. Again, there was no objection by the defense.
Prospective juror Melva Hicks said on voir dire that she believed in an "eye for an eye" but that she could consider both life without parole and the death penalty. Ms. Hicks stated that she would tend to think a defendant was guilty if he chose not to testify. The defense made a motion for cause on the basis that Ms. Hicks was predisposed to the death penalty. The court denied the motion. The defense then made a motion for cause on the basis that Ms. Hicks would tend to think the defendant is guilty if he did not testify. The court granted this motion.
Prospective juror Paul Daniel, the pastor at the First Baptist Church in North Little Rock, stated on voir dire that it would be difficult but that he could consider the death penalty. Daniel indicated that he would have a problem imposing the law if it conflicted with his religious beliefs but that he would apply the law as he was instructed. The defense moved the court to strike Daniel for cause, contending that he indicated that he would not abandon his religious beliefs if they conflicted with the law. The State argued that the pastor had expressed just the opposite. The court denied the motion. The defense used one of its peremptory strikes to remove Daniel.
The second day of trial, the defense asked the court if it would make a ruling on the Batson motion relating to Ms. Davis. The defense argued that the delay had forced the appellant to accept at least one juror he did not want and to use up one peremptory challenge. The court countered that the defense wanted Ms. Davis and therefore that it did not think the delay was a disadvantage. The court added that it had not reached a decision on the Batson motion.
The appellant asked the court if it would grant him two more peremptory strikes. The court responded that the request was premature. Later during voir dire, Franklin renewed his request for two additional peremptory strikes. The State objected stating that there was no authority for granting additional strikes. The circuit court denied the request.
Potential juror Nellie Hindman stated during voir dire that she could consider the death penalty or life without parole. Ms. Hindman was the junior high school teacher of one of the deputy prosecutors in the case. She stated that she had not seen him since junior high school, and that her prior contact with the deputy prosecutor would not affect her ability to be a disinterested juror in this case. Franklin, who had exhausted his peremptory strikes, moved to strike her for cause and stated that if he had had a peremptory challenge left, he would have used it. He asked again for additional peremptory challenges. The court denied the motion for cause and the motion for more challenges. At this time, Franklin inquired once more about the status of his Batson motion relating to Ms. Davis and was again told that it was under consideration.
Following voir dire of a potential juror, Wendell Brown, the appellant stated that he would have struck Brown if he had had a peremptory challenge left. The defense did not challenge Brown for cause. Franklin again requested two additional peremptory strikes, and the request was again denied.
The circuit court asked for arguments on the Batson motion involving Ms. Davis. The State argued that a prima facie case had not been established. Even assuming that it had, the State argued that the challenge was racially neutral in that it was based on the fact that Ms. Davis stated that she had real hesitation about the death penalty and that the State had struck white jurors for expressing less hesitation than Ms. Davis expressed. The circuit court ruled that the defense had not made a prima facie case and that, in any event, the challenge was not racially motivated.
The trial proceeded. According to Franklin, the jury was all white, and the State does not dispute this. During Franklin's case, he testified on cross examination about his experience at the North Little Rock Police Station:
Defense counsel objected and sought a mistrial, arguing that this line of questioning was a comment on the appellant's decision not to give the police a statement. The court overruled the objection, stating that the comment was that the police did not want to talk to Franklin, not that Franklin had refused to give a statement.
The jury was instructed on capital murder and first degree murder. The defense sought instructions on the lesser offenses of second degree murder and manslaughter. The State objected on the basis that the appellant was claiming that he did not do it and the instructions were, therefore, not apposite. The court refused to give the instructions. Guilt was determined and after the penalty phase, Franklin was sentenced to life without parole plus thirty years in prison and a fine of $15,000.
This is a capital murder case where the appellant received a sentence of life...
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