Heffernan v. State

• Decision Date: 07 February 1983
• Docket Number: No. CR81-82,CR81-82
• Citation: 645 S.W.2d 666,278 Ark. 325
• Parties: Robert Richard HEFFERNAN, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 666

645 S.W.2d 666

278 Ark. 325

Robert Richard HEFFERNAN, Appellant, v. STATE of Arkansas, Appellee.

No. CR81-82.

Supreme Court of Arkansas.

Feb. 7, 1983.

Andrew L. Clark, Little Rock, for appellant.

Steve Clark, Atty. Gen., by Arnold M. Jochums, Asst. Atty. Gen., Little Rock, for appellee.

HOLT, Justice.

A jury convicted appellant of capital felony murder [Ark.Stat.Ann. § 41-1501(1)(a) (Repl.1977) ] and fixed his punishment at life imprisonment without parole. The state adduced evidence that the victim, a fourteen year old girl, was abducted from a laundromat in Benton, Arkansas, raped and shot four times on February 3, 1980. The body was discovered the next day near Benton. The appellant, along with a man named Joseph Michael Breault and two women, all transients, camped at a park near Benton on February 2 and left on February 5, though they had originally paid to stay through February 6. One of the women testified that the appellant and Breault were armed but they disposed of the guns. A .357 Magnum, owned by the appellant, was subsequently retrieved from a lake. Ballistics tests demonstrated that this gun was the weapon from which the fatal bullets were fired. Glitter and hair were found on pants in the truck driven by the appellant and Breault, matching glitter and hair found on the clothing of the deceased. Appellant and Breault were later arrested in Colorado. The appellant does not challenge the sufficiency of the evidence. His court appointed counsel raises two points for reversal. We affirm.

Appellant first contends that the trial court erred in refusing to conduct a sequestered voir dire. He requested that the court, in the exercise of its discretion, allow him to question each prospective juror individually during a sequestered voir dire inasmuch as the state was seeking the death penalty. The court refused the motion. However, he did permit individual voir dire. A.R.Cr.P., Rule 32.2. Appellant argues that if he had been allowed to interview the jurors privately the jurors would have answered questions more candidly about their knowledge of the case based on pretrial publicity, their past experiences as crime victims and their opinion of the death penalty. He alludes to only one instance in support of this argument; i.e., venireman Lawrence stated that he had not formed an opinion about capital punishment before the voir dire began, because he had not thought about it or had to make that decision. He wasn't sure what his opinion would have been if he had been the first juror questioned. However, he had decided that he believed in it under certain circumstances. The appellant did not receive the death penalty; therefore, he was not prejudiced by this recited occurrence. Hobbs v. State, 277 Ark. 271, 641 S.W.2d 9, 11 (1982); and Van Cleave v. State, 268 Ark. 514, 598 S.W.2d 65 (1980). In his sequestration motion appellant acknowledges, as indicated, that sequestration of the jury for voir dire purposes is within the trial court's discretion. In the circumstances we cannot say that appellant has met his burden of proof by demonstrating an abuse of that discretion.

The appellant next asserts that the trial court erred in denying his motion on the day of trial for a continuance. He premises this argument upon the asserted failure of the prosecution to comply with the court's discovery order. Contending therefore, that he was entitled to a continuance pursuant to A.R.Cr.P., Rule 19.7, which provides that the trial court may, inter alia, grant a continuance for noncompliance with the court's order. A.R.Cr.P., Rule 17.1(d) requires that the prosecution "shall, promptly upon discovering the matter, disclose to defense counsel any material or information within his knowledge, possession, or control, which tends to negate the guilt of the defendant as to the offense charged or would tend to reduce the punishment therefor."

Appellant first argues that he did not receive copies of certain lab reports until the day of the trial. However, the prosecutor himself did not receive the written reports until the day of the trial. It appears, however, that the analysis of the materials to be tested was made known to defense co-counsel by the prosecutor ten days before trial, at which time defense counsel responded, "Well, that doesn't seem like that's any problem." The lab did not have the final results until the weekend before the trial. Defense counsel were informed of the final results by phone at that time. The prosecutor, himself, did not receive the written reports until the day of the trial, and they were promptly given to the defense counsel. Admittedly, the delay was not the "fault" of the prosecutor.

Secondly, appellant argues that the prosecution did not furnish the defense with a copy of a letter dated November 10, 1980, from a prosecutor in Colorado to the local prosecutor allegedly giving the name and address of a psychiatrist there to whom Breault, who accompanied the appellant on the date of the Arkansas murder, had confessed that he had killed the victim, reciting the facts and circumstances. Appellant's present counsel with co-counsel were substituted as appointed counsel on February 11, 1981. Trial date was set for April 27, 1981. The appellant argues that the prosecution had possession of the letter from the Colorado prosecutor and had refused to produce a copy of it which prevented the Colorado psychiatrist from being timely subpoenaed by the defense. In response, the prosecutor stated to the court that his entire file, including the letter, had been made available to the defense in compliance with the court's discovery order. Furthermore, appellant's counsel acknowledged to the court that "[i]n looking through the files sometime back" counsel had discovered a letter from the Colorado prosecutor to the Arkansas prosecutor. Further, defense counsel filed a petition for a writ of prohibition in this court on April 27, 1981, the date of trial, and attached thereto a letter dated November 10, 1980, from the Colorado prosecutor making reference to the psychiatrist's report. This certainly verifies the statement that he had discovered the letter in his files prior to the trial. The letter, inter alia, referred to the existence of the Colorado psychiatrist reports on appellant and Breault following their apprehension there on local charges. It was stated in the letter that Breault had admitted committing the alleged Arkansas offense. The prosecutor steadfastly maintained that the defense had been furnished a complete copy of its file, including the letter and, therefore, he had complied with the court's discovery order.

No effort was made to contact the Colorado psychiatrist until a few days before the trial date. As we have said, a defendant in a criminal case cannot rely upon discovery as a total substitute for his own investigation. Thomerson v. State, 274 Ark. 17, 621 S.W.2d 690 (1981). Here, there is no showing of a purposeful or willful violation of the discovery order. Further, the prosecution represented to the trial court that it had promptly obeyed the court's discovery order. The defense maintained that it had not. The action of the trial court in denying a motion for continuance will not be reversed in the absence of a showing of such a clear abuse of the court's discretion as to amount to a denial of justice, and the burden rests upon appellant to show that there has been such an abuse. Kelley v. State, 261 Ark. 31, 545 S.W.2d 919 (1977). Here, it is not demonstrated that the trial court, in resolving the issue, clearly abused its discretion in denying the motion for a continuance which was based upon the asserted failure of the prosecutor to comply with the court's discovery order.

We have reviewed the record and all objections decided adversely to the appellant pursuant to the requirement of Supreme Court Rule 11(f), Ark.Stat.Ann.Vol. 3A (Repl.1979), and find no prejudicial error.

Affirmed.

PURTLE, J., dissents.

PURTLE, Justice, dissenting.

I do not understand the reasoning behind the majority opinion any more than I understand the refusal of the trial court to allow individual sequestered questioning of proposed jurors. I recognize it takes time and expense to try a criminal case but it just so happens that both the Arkansas and Federal Constitutions provide for just that. In most cases the accused is a resident and citizen of the nation and many times of the state in which he is brought to trial. Therefore, such a person, being one of the people with whom the reserved power to change our laws lies, is entitled to due process and equal protection under the law. The right to trial by an impartial jury is one of the basic rights guaranteed to the people. Anything less is unacceptable. One needs but to read the majority opinion to see that the jury in this case was chosen in manner so as to allow potential jurors to be persuaded by questions put to the members of the panel being examined prior to them. The record is even more clear in regard to this point. The example of juror Lawrence, as cited in the majority, is proof that at least one member of this particular jury panel changed his mind in listening to the examination of those questioned before him. I must ask: is a few more hours to process the panel too high a price to pay in order to provide an individual the basic rights guaranteed by our Constitutions? I think not. More often than not the price of expediency is the cost of a new trial. In such an instance not only the accused but the state and its people are the losers. In the present case the jurors took the witness stand and were questioned...