Gammel v. State, CR
| Decision Date | 19 January 1976 |
| Docket Number | No. CR,CR |
| Citation | 259 Ark. 96,531 S.W.2d 474 |
| Parties | David Lynn GAMMEL and Eddie Spann, Appellants, v. STATE of Arkansas, Appellee. * 75--92. |
| Court | Arkansas Supreme Court |
Patrick D. O'Rourke, Pine Bluff, for appellants.
Jim Guy Tucker, Atty. Gen., by Michael G. Epley, Asst. Atty. Gen., for appellee.
Appellants Gammel and 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.
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 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 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 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, when the two were alone in the cell, he started asking Gammel why Gammel was in jail and Gammel started in talking about it and made the incriminating statements; Skaggs had no conversation with any of the police officers before he was put in the cell; he asked Gammel 'what he was in for' because that is a usual discussion when someone is brought into the jail; none of the police officers suggested that he talk to Gammel or ask Gammel what he had done; and none of them promised anything for his obtaining a statement from Gammel. Skaggs was not a trusty when he was placed in the cell with Gammel, but was made one that afternoon and allowed to go home the next morning; Skaggs had previously been kept in the 'bull pen;' he never slept in the cell with Gammel, but was removed from it and returned to the 'bull pen' on the same afternoon he had been placed there; he did not try to make a deal with the police in return for the information he gave them, but decided to tell them because Gammel had suggested to Skaggs that, whenever Skaggs became a trusty, he bring Gammel a hacksaw blade; Skaggs had previously been convicted of petit larceny, disorderly conduct, and possession of alcohol as a minor.
We make an independent determination of voluntariness of a confession based upon the totality of the circumstances, but do not overturn the finding of the trial court on the subject, unless it is clearly against the preponderance of the evidence. Degler v. State, 257 Ark. 388, 517 S.W.2d 515. When we consider that none of the testimony of Skaggs is contradicted in any way by anyone and that his testimony cannot be said to be inherently improbable or demonstrably incredible, we cannot say that the finding that Gammel's statements were not voluntary was clearly against the preponderance of the evidence. Gammel's argument that the very fact that Skaggs was made a trusty on the next day and released before the following nightfall can lead to no conclusion except that Skaggs was an agent of the police department placed in the cell to obtain a confession is fallacious. It is at least as likely that Skaggs was brought as he said, to report the conversation when he reflected upon the request that he bring hacksaw blades to Gammel and the potential consequences to him if indeed Gammel subsequently obtained hacksaw blades from some source. Gammel did not avail himself of the opportunity to testify in camera and deny the making of this proposal or to explain how it came to be made, but freely suggests here that Skaggs could not have testified as he did if he did not know that he was about to be made a trusty. It is certainly logical to assume that the officers were placed to have all the information they received from Skaggs and that they would favor him if possible to do so, perhaps more readily if Skaggs voluntarily gave the information. We cannot help noting that there was evidence of Gammel's participation in the crime,...
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