Gammel v. State, CR

• Court: Supreme Court of Arkansas
• Citation: 259 Ark. 96,531 S.W.2d 474
• Docket Number: No. CR,CR
• Parties: David Lynn GAMMEL and Eddie Spann, Appellants, v. STATE of Arkansas, Appellee. * 75--92.
• Decision Date: 19 January 1976

Page 474

531 S.W.2d 474 259 Ark. 96 David Lynn GAMMEL and Eddie Spann, Appellants,
v.
STATE of Arkansas, Appellee. ^* No. CR 75--92. Supreme Court of Arkansas. Jan. 19, 1976.

[259 Ark. 97]

Page 475

Patrick D. O'Rourke, Pine Bluff, for appellants.

Page 476

Jim Guy Tucker, Atty. Gen., by Michael G. Epley, Asst. Atty. Gen., for appellee.

FOGLEMAN, Justice.

Appellants Gammel and [259 Ark. 98] Spann were found guilty of robbery with a firearm and sentenced to imprisonment for 25 years--15 for robbery and 10 for the use of a firearm. We find no reversible error on the five points for reversal listed by appellants and affirm. We will discuss these points in the order they are argued by appellants.

THE TRIAL COURT ERRED BY NOT CHALLENGING FOR CAUSE A JUROR WHO EXHIBITED ACTUAL BIAS DURING VOIR DIRE, THEREBY EFFECTIVELY DENYING THE DEFENDANTS THEIR RIGHT TO A FAIR AND IMPARTIAL JURY.

Appellants challenged prospective juror Fairs peremptorily when the court refused their challenge for cause, and contend that they were prejudiced because they had exhausted their peremptory challenges when the last juror was accepted, because they would have otherwise peremptorily challenged him. This juror was acquainted with one of the state's witnesses, Capt. Jim Bell of the West Memphis Police Department. When asked whether his relationship with the officer was such that he would tend to give more credence to what the officer said, Faris responded that he had known Bell to be an honest man and would tend to believe him. The circuit judge then stated that he would give an instruction on credibility of witnesses and the applicable rule on credibility and asked Faris if he would abide by that instruction and apply it to the facts. When Faris answered in the affirmative, the judge refused to allow the challenge for cause.

Either actual or implied bias is a ground for disqualification of a prospective juror. Ark.Stat.Ann. §§ 43--1919, 1920 (Repl.1964). The determination of the existence of actual bias is a matter lying within the sound judicial discretion of the trial judge. We will not reverse the trial court's action on challenges for actual bias in the absence of an abuse of discretion. Henslee v. State, 251 Ark. 125, 471 S.W.2d 352; Lewis v. State, 220 Ark. 914, 251 S.W.2d 490; Scifres v. State, 228 Ark. 486, 308 S.W.2d 815. The challenge here does not come within the scope of permissible challenges for implied bias. See Ark.Stat.Ann. § 43--1920.

[259 Ark. 99] In view of the statement by Faris that he would abide by and apply the court's instruction on the credibility of witnesses, we cannot say that there was an abuse of discretion in this instance.

THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE VERDICT THAT APPELLANT GAMMEL USED A FIREARM IN THE COMMISSION OF THE ROBBERY.

Appellant Gammel points out that there was no evidence that he used a firearm in the robbery and that Danny Allen Jenkins, the manager of the Nic-Nac Grocery who was robbed, testified that Gammel did not at any time exhibit a firearm. Appellants state in their brief that there was no real evidence that a firearm was used by anyone during the robbery, but we disagree. As a matter of fact, Gammel stated in his motion for new trial that 'all the proof showed that only his codefendant used a weapon and that there was no proof that (Gammel) knew or acquiesced in the use of a firearm.' This concession that there was evidence to show that Spann used a firearm was fully warranted. Spann does not actually contend on this appeal that there was no evidence that he used a firearm. No useful purpose would be served by reviewing the testimony on this score.

The gist of Gammel's argument is that the enhancement of his 15 years' sentence by 10 years is invalid because there is not sufficient evidence that he used any firearm himself. This argument overlooks the impact of our law making an accessory who stands by, aids and assists in the commission

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of a felony a principal in the crime and punishable as such. See Ark.Stat.Ann. §§ 41--118, 119 (Repl.1964).

Apparently we have not been called upon to decide this precise question where Ark.Stat.Ann. § 43--2336 (Supp.1973) has been brought into play. There is some split of authority on the question. The New York rule is that one must personally use the firearm before he can be convicted of its use. People v. Paradiso, 248 N.Y. 123, 161 N.E. 443 (1928). We believe the California rule that an accomplice is just as guilty as his confederate who uses the firearm and is subject [259 Ark. 100] to the same punishment is based upon sounder reason and logic. ¹ People v. Stevens, 32 Cal.App.2d 666, 90 P.2d 565 (1939). This is particularly so when appropriate consideration is given to a statute making an accessory who stands by, aids and assists in the crime punishable as a principal, as was the case in the state of Washington, State v. Willis, 5 Wash.App. 441, 487 P.2d 648 (1971). Although the California court reached the same result without reliance on statutory language such as that in the Arkansas and Washington statutes, we unhesitatingly embrace the reason and result of the opinion of the Washington court in Willis,

THE STATE FAILED TO SHOW BY A PREPONDERANCE OF THE EVIDENCE THAT AN IN-CUSTODY CONFESSION WAS VOLUNTARILY GIVEN THEREFORE ADMISSION OF TESTIMONY OF SUCH INVOLUNTARY CONFESSION WAS REVERSIBLE ERROR.

As a part of its evidence-in-chief, the state offered the testimony of James Newton Skaggs, Jr., a 17-year-old misdemeanant, who was serving a 30-day sentence in the West Memphis jail when Gammel was incarcerated. He testified that Gammel had told him of being arrested for armed robbery, saying that he (Gammel) couldn't be identified because he had been wearing sum glasses and a hat and the lower part of his face was covered, but that he had gone in the store first and come back out and thereafter he and his friend had gone back to the store and robbed the place.

Appellant Gammel argues that this confession was obtained by the police by trickery and deceit, contending that Skaggs was placed in the cell where Gammel was incarcerated for the express purpose of eliciting a confession and that the statements attributed to Gammel were made without the warnings as to his constitutional rights required [259 Ark. 101] by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966) and its progeny. In advancing this argument Gammel relies solely on circumstances disclosed by Skaggs, the only witness on the subject, and argues that the only reasonable inference to be drawn from these circumstances is that the alleged confession was involuntary because of the trickery and deceit involved. We do not agree.

Gammel moved in limine to suppress the statements. Skaggs testified in camera, substantially as follows:

He had served 10 or 11 days of his sentence at the time he was placed in the same two-man cell with Gammel, about 12 M on May 9, 1974. About an hour thereafter,...