Gardner v. State, CR

• Decision Date: 20 June 1988
• Docket Number: No. CR,CR
• Citation: 296 Ark. 41,754 S.W.2d 518
• Parties: Mark Edward GARDNER, Appellant, v. STATE of Arkansas, Appellee. 86-163.
• Court: Arkansas Supreme Court

Page 518

754 S.W.2d 518

296 Ark. 41

Mark Edward GARDNER, Appellant, v. STATE of Arkansas, Appellee.

No. CR 86-163.

Supreme Court of Arkansas.

June 20, 1988.

Roger T. Jeremiah, Fort Smith, for appellant.

Clint Miller, Asst. Atty. Gen., Little Rock, for appellee.

HOLT, Chief Justice.

Appellant Mark E. Gardner was charged with two counts of capital murder in connection with the December 1985 strangulation deaths of Joe and Martha Joyce and the Joyces' daughter, Sara McCurdy. Gardner was convicted and sentenced to death by lethal injection on both counts. Twenty-one points are raised on appeal. With few exceptions, we will treat each point separately. In addition to the points argued by Gardner, we have examined all other objections made during the trial in accordance with Rule 11(f) of the Rules of the Supreme Court and the Court of Appeals. Finding no error, we affirm.

Shortly after 2:00 p.m. on December 12, 1985, the bodies of Mr. and Mrs. Joyce and Sara McCurdy were discovered in the Joyce residence in Fort Smith, Arkansas. Mr. Joyce was found in one room tied to a chair with his own neckties. His feet had been bound and he had been gagged. A necktie was wrapped about his neck so tightly that it had to be cut free. Mrs. Joyce was found bound and gagged in one of the bedrooms. At trial, the medical examiner testified that Mr. and Mrs. Joyce died of strangulation. Sara McCurdy was found in another bedroom with a belt wrapped around her neck. She too had been bound and gagged. Additionally, a coat hanger had been twisted about her neck. She was taken to a local hospital with the expectation that she might be revived but was pronounced dead on arrival. The cause of death was strangulation. At trial, the State produced evidence that Sara McCurdy had been raped.

Cindy Griggs--Sara McCurdy's sister and co-worker--testified that an inventory of the items in her parents' home revealed that a bag of silver coins, money, knives, a purse, binoculars, and numerous pieces of jewelry were missing. The witness described the knives, purse, binoculars, and jewelry with particularity.

Additional testimony by other witnesses developed the following. Sara McCurdy had left work at 11:15 a.m. on December 12 to drop off her car, a 1977 Buick LaSabre, at her parents' home. It had been planned that Mr. Joyce would take Sara back to work after lunch, but she never returned. Calls to the Joyce residence between 12:30 and 2:00 went unanswered. Subsequently, the victims' bodies were discovered by a relative. It was determined at that time that Sara McCurdy's car was missing.

Earlier on December 12, at approximately 3:30 a.m., Gardner had checked into the Regal 8 Inn in Fort Smith. Shortly before 11:00 a.m. he was seen walking in the direction of May Avenue in Fort Smith. Between 11:00 and 11:30, in a shop on May Avenue, Gardner asked for directions to Linwood Street. The directions given would have taken him within one block of the Joyce residence. The next time Gardner was seen was shortly before 2:00 p.m. near Pocola, Oklahoma. He was driving a 1977 Buick LaSabre later found abandoned near Pocola and identified as belonging to Sara McCurdy.

The abandoned vehicle had been left near a service station where Gardner obtained a ride to the Fort Smith bus station. He was described as carrying a purse matching the description of the one taken from the Joyce residence. From Fort Smith, Gardner took the bus to Little Rock. At the Little Rock bus station, he attempted to sell numerous pieces of jewelry and several silver coins to persons who testified for the State at trial and described the jewelry and coins in detail. After his arrival in Little Rock, Gardner checked into the Downtowner Motor Inn and on December 13 he pawned some of the jewelry at Maxie's Pawn Shop in Little Rock.

Based upon a description of Gardner and information that he was trying to pawn jewelry in Little Rock and obtain a ride to Fort Smith, undercover Arkansas State Police officers went to the Little Rock bus station in an unmarked vehicle and offered Gardner a ride to Fort Smith if he would pay for the gas. Gardner agreed. He was arrested in route to Fort Smith at a point near Clarksville. On that same day, officers obtained custody of the jewelry that had been pawned at Maxie's in Little Rock. That jewelry was taken to Clarksville where it was identified by Cindy Griggs as the jewelry missing from her parents' home.

On December 14, the police searched Gardner's room at the Downtowner Motor Inn in Little Rock pursuant to a warrant. The search produced several items later identified as having been taken from the Joyce residence. On December 16, one of the officers returned to the Downtowner Inn and took custody of certain items seen but not seized during the original search. These items had been removed and secured by employees of the Inn. Among those items was the purse Gardner had been carrying near Pocola which had belonged to Mrs. Joyce.

I. VENUE

Gardner filed a pretrial motion for change of venue on the grounds that he could not receive a fair and impartial trial in Sebastian County. In support of his motion, Gardner introduced testimony by individuals associated with the news media who described the coverage the triple homicide had received. Gardner also introduced testimony by four witnesses who stated that they did not believe Gardner could get a fair trial in the county. The motion for change of venue was denied.

The record reveals that the Joyce and McCurdy murder investigation was a "lead" story at least on the day the crime was discovered and possibly one to two days thereafter. However, the primary coverage received by the event ended within approximately five days. During that period and afterwards, the news media broadcast not only pictures of Gardner but also information concerning: (1) the scene of the murders, including speculation on how the murders were committed; (2) the items allegedly found on Gardner and speculation that they had been taken from the Joyce residence; (3) charges against Gardner in Illinois involving his alleged breaking and entering a home, blindfolding the occupants, raping the female occupant at knifepoint, and taking money; (4) statements made by Gardner to the undercover officers in route to Fort Smith that he was possessed by demons, had a gun, would kill the officers if they "messed" with him or should it turn out that they were police officers, that he had killed someone in Chigago, wanted to kill a pawn broker in Little Rock, and was going to obtain cocaine in Fort Smith; (5) statements to a bus station employee that Gardner had killed a woman and had taken her jewelry; and (6) Gardner's record from another state and that he was paroled from prison.

In response to Gardner's motion, the State introduced twelve affidavits and presented the testimony of five witnesses to the effect that Gardner could receive a fair trial in the county. The testimony of those witnesses generally indicated that they remembered little if anything about the crime, or that what little they remembered would not affect their ability to give Gardner a fair trial. The State also cross-examined several of appellant's witnesses--many of whom stated that notwithstanding the coverage received by the event, they had conversed with few persons, if any, who had recently even mentioned the crime. Those witnesses who were members of the news media stated that there was nothing about the coverage that would prevent them from giving Gardner a fair trial and that they had not formed an opinion on his guilt or innocence.

A change of venue should be granted only when it is clearly shown that a fair trial is not likely to be had in the county. Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986). The burden of proof is on the defendant, and the decision of the trial judge will be upheld unless it is shown that there was an abuse of discretion in denying the motion. Kirkendall v. State, 265 Ark. 853, 581 S.W.2d 341 (1979). We have emphasized the significance of the trial court's opportunity to observe the witnesses, and have held that those witnesses who state that the appellant cannot receive a fair trial must be able to show that they either have a general knowledge as to the state of mind of the inhabitants of the whole county or that they are cognizant of prejudice existing throughout the whole county. Hill v. State, 275 Ark. 71, 628 S.W.2d 284 (1982).

We have also held that it is not necessary that jurors be totally ignorant of the facts surrounding the case, as long as they can set aside any impression they have formed and render a verdict solely on the evidence at trial. Swindler v. State, 264 Ark. 107, 569 S.W.2d 120 (1978), cert. denied, 449 U.S. 1057, 101 S.Ct. 630, 66 L.Ed.2d 511 (1980). There can be no error in the denial of a change of venue if an examination of the jury selection shows that an impartial jury was selected and that each juror stated he or she could give the defendant a fair trial and follow the instructions of the court. Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982).

While there are elements of this case resembling those before this court in Ruiz & Van Denton v. State, 265 Ark. 875, 582 S.W.2d 915 (1979), cert. denied, 454 U.S. 1093, 102 S.Ct. 659, 70 L.Ed.2d 631 (1981), we conclude that Gardner failed to show that a fair trial was not likely to be had. We therefore find no abuse of discretion by the trial court.

First, a review of the news coverage in this case--when combined with the testimony of the witnesses--suggests that any prejudicial effect as to the manner in which the story was covered was either dissipated by the passage of time between the crime and the subsequent trial, or was never so severe as to affect the minds of the inhabitants of the county. Second, none of the witnesses presented on Gardner's behalf exhibited a general knowledge as to the state of mind of all those living in ...