Gwathney v. State

• Court: Arkansas Supreme Court
• Writing for the Court: ANNABELLE CLINTON IMBER
• Citation: Gwathney v. State, 2009 Ark. 544, 381 S.W.3d 744 (Ark. 2009)
• Decision Date: 05 November 2009
• Docket Number: No. CR 09–263.,CR 09–263.
• Parties: Gordon Randall GWATHNEY, Appellant, v. STATE of Arkansas, Appellees.

2009 Ark. 544

381 S.W.3d 744

Gordon Randall GWATHNEY, Appellant,

v.STATE of Arkansas, Appellees.

No. CR 09–263.

Supreme Court of Arkansas.

Nov. 5, 2009.

Durrett & Coleman, West Memphis, by: Gerald A. Coleman, for appellant.

Dustin McDaniel, Attorney General, by: John T. Adams, Assistant Attorney General, for appellee.

ANNABELLE CLINTON IMBER, Justice.

Appellant Gordon Randall Gwathney was convicted of three counts of murder in the deaths of his estranged wife's mother and grandparents and two counts of attempted murder for the shooting of his estranged wife's brother and an officer. He was sentenced to an aggregate term of life imprisonment without parole plus 40 years. On appeal, Gwathney contends that the circuit court erred (a) in refusing to quash the entire jury panel and (b) in refusing to remove two jurors for cause. He further argues that the circuit court erred in denying his motion for a directed verdict. As this is a criminal appeal in which a sentence of life imprisonment has been imposed, our jurisdiction is pursuant to Ark. Sup.Ct. R. 1–2(a)(2) (2009). We find no error and affirm.

On the night of February 13, 2007, Appellant went to the home of his estranged wife, Lisa Reeves, which she shared with her mother and grandparents. He began to argue with Lisa about money and a credit card. Eventually, the argument escalated, and Appellant started hitting his wife. Her mother intervened and threatened to call the police. He then turned on Lisa's mother and started hitting her. Lisa ran to the back of the house to get her phone. Upon hearing the sound of a gunshot, she barricaded herself in her grandparent's bedroom, jumped out of the bedroom window, and ran next door to her brother's house. After Lisa described the situation to her brother, he went next door. As he approached the house, Appellant fired multiple shots at him, causing Lisa's brother to sustain several gunshot wounds. An officer arriving at the scene was also shot and wounded. Lisa's grandparents, who were also inside the house, sustained gunshot wounds that proved to be fatal. Appellant fled the scene, and, by monitoring his ATM withdrawals, law enforcement authorities were able to locate him in Laredo, Texas. At the time of his arrest, officers found a black, 40 caliber handgun and two clips, one of which was in his back pocket. They also found a 7.62 millimeter AK–47 assault rifle, along with a canvas bag that contained four clips.

I. Sufficiency of the Evidence–Affirmative Defense

Appellant argues that the circuit court erred in denying his motion for a directed verdict on grounds that he was not guilty by reason of mental disease or defect at the time he committed the alleged criminal offenses. Specifically, he points to the testimony of two medical experts who opined that Appellant was suffering from delirium brought on by the interaction of his Post Traumatic Stress Disorder and certain medications prescribed by the Veterans Administration. The State contends that there was substantial evidence to support the conviction and that the burden was on the Appellant to prove this affirmative defense.

Although Appellant raises this issue as his final point on appeal, this court has stated that double-jeopardy concerns require this court review arguments regarding the sufficiency of the evidence first. Boldin v. State, 373 Ark. 295, 283 S.W.3d 565 (2008). With respect to a motion for a directed verdict based on an affirmative defense of insanity, the same double-jeopardy concerns attach to the sufficiency of the evidence. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).

Arkansas Code Annotated § 5–2–312 provides that:

(a)(1) It is an affirmative defense to a prosecution that at the time the defendant engaged in the conduct charged he or she lacked capacity as a result of mental disease or defect to:

(A) Conform his or her conduct to the requirements of law; or

(B) Appreciate the criminality of his or her conduct.

With respect to affirmative defenses, such as insanity, the burden is on the defendant to prove the affirmative defense by a preponderance of the evidence. Navarro v. State, 371 Ark. 179, 264 S.W.3d 530 (2007). Furthermore, our court “has a well-settled policy of affording deference to jury verdicts. The determination of the credibility of trial witnesses and the weighing of the evidence is solely within the province of the jury.” Id. at 192, 264 S.W.3d at 539. The jury is not bound to accept the opinion testimony of any witness as true and conclusive,including the opinion testimony of experts. Id. at 191, 264 S.W.3d at 539. This court's standard of review of a jury verdict rejecting the defense of mental disease or defect is whether there is any substantial evidence to support the verdict. Id. at 190, 264 S.W.3d at 538. This court treats a motion for a directed verdict as a challenge to the sufficiency of the evidence. Navarro v. State, 371 Ark. 179, 264 S.W.3d 530. We view the evidence in a light most favorable to the State and consider only the evidence that supports the verdict and we affirm if substantial evidence exists to support the verdict. Id.

On appeal, Appellant suggests that this court disregard the testimony of Dr. Jeremy Hinton, a staff psychiatrist with the Arkansas State Hospital, which refuted the testimony of Appellant's own medical experts, Dr. Rebecca Rutledge, a clinical psychologist, and Dr. Thomas Bannister, a psychiatrist specializing in psychopharmacology. Dr. Hinton concluded that Appellant did not experience delirium at the time of the offense. According to Dr. Hinton, Appellant did not exhibit the symptoms of delirium before or after the charged conduct. In fact, during the days leading up to the incident, neither his family nor his employer noticed any symptoms of confusion and disorientation, or a reduced ability to focus, shift or maintain attention. Furthermore, after the violent confrontation with his estranged wife and her family, Appellant was able to access an ATM and drive to Laredo, Texas. Dr. Hinton explained that a person suffering from delirium “would have a really hard time, if not impossible time, accessing an ATM” and navigating “a vehicle all the way to Laredo without being involved in an accident.” In sum, Dr. Hinton did not find that Appellant had any mental disease or defect of such severity that would keep him from (a) knowing that the charged conduct was illegal, and (b) having the capacity to conform his behavior to the requirements of the law. Because this court must review the evidence in the light most favorable to the State, with the determination of credibility being solely within the province of the jury, we conclude that substantial evidence supports the jury's verdict. Therefore, we affirm on this point.

II. Motion to Quash the Jury Panel

For his second point on appeal, Appellant argues that the circuit court erred in denying his motion to quash the entire jury panel. He claims that (1) the circuit clerk improperly excused jurors, thereby violating the court's order reflected in the summons ¹ sent to prospective jurors, and (2) the jury selection process violated the court's pretrial order granting Appellant's motion to assure the selection of a fair and impartial jury from a cross-section of the community. Appellant further asserts that he was prejudiced by the jury selection process. The State responds, asserting that the circuit court substantially complied with the jury selection statutes, Ark.Code Ann. § 16–32–101 et seq., and that Appellant failed to show he was prejudiced by the jury selection process.

We have previously held that a trial court's refusal to quash a jury panel is reviewed for an abuse of discretion. Kelly v. State, 350 Ark. 238, 85 S.W.3d 893 (2002) (citing Newman v. State, 327 Ark. 339, 939 S.W.2d 811 (1997)). Irregularities affecting the selection of the jury panel warrant a new trial only if timely objection was made prior to the verdict and the resulting prejudice is shown. Mosby v. State, 249 Ark. 17, 457 S.W.2d 836 (1970). Furthermore, an appellant is in no position to assert that he was prejudiced by such irregularities unless he has exhausted his peremptory challenges. Id.

Pursuant to Ark.Code Ann. § 16–33–302, a challenge to the trial jurors can be made either to the panel or to the individual juror. Ark.Code Ann. § 16–33–302(1) (1999). Furthermore, a challenge to the jury panel “shall be sustained by the court if it shall appear that there was a substantial irregularity in the drawing or summoning of the jury.” Ark.Code Ann. § 16–32–109(b)(1) (Repl.1999). In Mosby v. State, we held that a substantial irregularity existed in the manner of the selection of the jury panel. 249 Ark. 17, 457 S.W.2d 836. The selection of the grand and petit jury panels by less than three jury commissioners was not in accordance with Ark. Stat. Ann. § 39–201 (Repl.1962) (now codified at Ark.Code Ann. § 16–32–102 (Repl.1999)) and constituted prejudicial error. Id. Following the enactment of the Arkansas Jury Wheel Act of 1969, a comprehensive statute by which the legislature directed the use of a jury wheel and made other changes in the selection of juries, we held to be mandatory that section of the Act which requires three jury commissioners to meet each year and select prospective jurors for the following calendar year. Horne v. State, 253 Ark. 1096, 490 S.W.2d 806 (1973) (interpreting Ark. Stat. Ann. § 39–205, now codified at Ark.Code Ann. § 16–32–103 (Supp.2009)). See Shelton v. State, 254 Ark. 815, 496 S.W.2d 419 (1973) (chancery court took names from the jury wheel, but the names were not placed in the jury book, and, after their use, those names were discarded); Streett v. Roberts, 258 Ark. 839, 529 S.W.2d 343 (1975) (the use of the jury wheel mandatory in the selection of grand juries and petit juries).

In Huckaby v. State, 262 Ark. 413, 557 S.W.2d 875 (1977), our court made clear that every provision in the Jury...