Hobbs v. State, CR

• Decision Date: 01 November 1982
• Docket Number: No. CR,CR
• Citation: 277 Ark. 271,641 S.W.2d 9
• Parties: Harold HOBBS, Appellant, v. STATE of Arkansas, Appellee. 82-48.
• Court: Arkansas Supreme Court

Page 9

641 S.W.2d 9

277 Ark. 271

Harold HOBBS, Appellant, v. STATE of Arkansas, Appellee.

No. CR 82-48.

Supreme Court of Arkansas.

Nov. 1, 1982.

Dick Jarboe, Walnut Ridge, and John Burris, Pocahontas, for appellant.

Steve Clark, Atty. Gen., by William C. Mann, III, Asst. Atty. Gen., Little Rock, for appellee.

HOLT, Justice.

The appellant was charged with capital felony murder. Ark.Stat.Ann. § 41-1501 (Repl.1977). At his first trial he was convicted and sentenced to death by electrocution. We reversed and remanded. Hobbs v. State, 273 Ark. 125, 617 S.W.2d 347 (1981). On retrial the appellant was convicted and sentenced to life imprisonment without parole. Hence this appeal. We affirm.

The state's theory of the case was that the appellant went to the office of a business firm in Newport, where he had recently worked, and forced a female bookkeeper to write a check for $500 and one for $1,000, based upon a fictitious time card. He then took her to a remote location where he fatally shot her.

The appellant first contends for reversal that the trial court erred in excusing venireman George Gibson for cause. Gibson repeatedly stated that he would not vote to convict and would not impose the death penalty based on circumstantial evidence. It is apparent that he was confused as to the meaning of the phrase "circumstantial evidence"; but it is clear also that, as the trial court noted, his confusion was such that he would not have made a good juror for anyone. The trial court easily could have determined from Gibson's statements that he would not listen to the evidence with an open mind and decide in accordance with the court's instructions, even though, at one point in the long colloquy, he affirmed that he could do so. The qualification of a juror is within the sound judicial discretion of the trial court, who has an opportunity to observe the veniremen that we do not have, and the trial court will not be reversed unless the appellant demonstrates an abuse of discretion. Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1981); Satterfield v. State, 252 Ark. 747, 483 S.W.2d 171 (1972). We find no abuse of discretion here.

The appellant argues that the trial court erred in failing to excuse for cause venireman Clarence Davis. The appellant excused Davis peremptorily. Although he later exhausted his peremptory challenges, the record does not reflect that any juror was seated, or forced upon him, whom he would have excused if he had been entitled to another peremptory challenge. Consequently, this issue may not be raised on appeal. Hill v. State, 275 Ark. 71, 628 S.W.2d 285 (1982); and Conley v. State, 270 Ark. 886, 607 S.W.2d 328 (1980).

Appellant insists that he was restricted in questioning venireman Bill Morgan concerning his views of the death penalty. However, since the appellant did not receive the death penalty, this issue is mooted. Van Cleave v. State, 268 Ark. 514, 598 S.W.2d 65 (1980). Further, the fact that the appellant here used a peremptory challenge when further examination might have revealed ground for challenge for cause is not a basis for reversal where the record does not show that a juror was forced upon him or seated whom the appellant would have challenged. Hill v. State, supra; and Conley v. State, supra.

The appellant next argues that the trial court erred in allowing the prosecuting attorney to pose hypothetical questions on circumstantial evidence to the prospective jurors, citing Turner v. State, 171 Ark. 1118, 287 S.W. 400 (1926). Turner recites the general rule that hypothetical questions are not permissible where their evident purpose is to commit the jury in advance to a certain decision based on a state of facts expected to be proven at trial. However, there we held a single hypothetical question complained of was proper. There the question was designed to ascertain whether the prospective jurors would convict if the evidence against the defendant came in testimony from a woman of "unsavory reputation." Here, the questioning was designed to discover prejudice or bias with respect to a certain type of evidence; i.e., circumstantial evidence. We hold that prospective jurors may not be questioned with respect to a hypothetical set of facts expected to be proved at trial and thus commit the jury to a decision in advance, but that they may be questioned, as here, about their mental attitude toward certain types of evidence, such as circumstantial evidence. Cf. Fauna v. State, 265 Ark. 934, 582 S.W.2d 18 (1979); Griffin v. State, 239 Ark. 431, 389 S.W.2d 900 (1965). Here, the appellant does not refer to any specific hypothetical questions based on the facts to be proved at trial.

The appellant asserts that the trial court erred in not declaring a mistrial and quashing the jury panel when it was called to the court's attention that, contrary to the court's instructions, some members of the jury panel had discussed the case among themselves or with other persons while waiting to be examined for jury duty. Therefore, he was denied the right of a fair and impartial trial. It appears that eleven jurors had been selected when this information came to the trial court's attention. As requested, the trial court called in the remainder of the panel and admonished them again about discussing the case. The twelfth juror was then selected and accepted by the appellant without challenge. During the jury selection numerous jurors were excused because they had formed an opinion as to the appellant's guilt. However, no juror was seated who did not affirm his or her ability to decide the case in accordance with the evidence. As we said in Kellensworth v. State, 276 Ark. 127, 633 S.W.2d 21 (1982):

... The Court holds that there is no requirement that jurors be totally ignorant of the facts involved: 'It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented at court.'

Here, we certainly cannot say that the court abused his discretion in refusing to declare a mistrial or quash the jury panel.

The appellant urges that the trial court erred in admitting the appellant's oral statement into evidence. The appellant was advised of his Miranda rights before being questioned by a police officer who was driving a vehicle transferring appellant from the White County to the Jackson County Jail. The uncontradicted testimony of both officers, who were in the vehicle at the time of the appellant's brief statement, was that he was apprised of his Miranda rights and that his statement was freely and voluntarily given. The appellant stated to them that he understood his rights, answered a few questions and then invoked his right not to answer further questions without consulting an attorney. The questioning then ceased and was not renewed. Based upon our independent review of the evidence, we cannot say that the trial court's finding that appellant's statement was freely and voluntarily made is clearly against the preponderance of the evidence. Brown v. State, 276 Ark. 20, 631 S.W.2d 829 (1982).

Appellant asserts that the trial court erred in allowing the introduction of fingerprint evidence without an adequate foundation. Appellant's fingerprints were found both on a time card in the office where the victim worked and on her automobile. He argues that the state did not exclude the possibility that appellant's fingerprints could have been placed on these objects at a time other than that of the offense. He relies upon U.S. v. Van Fossen, 460 F.2d 38 (4th Cir.1972); U.S. v. Corso, 439 F.2d 956 (4th Cir.1971); State v. Hayes, 333 So.2d 51 (Fla.App.1976); State v. Scott, 296 N.C. 519, 251 S.E.2d 414 (1979). However, none of these cases dealt with the admissibility of fingerprint evidence; rather they dealt with the sufficiency of the evidence to sustain a conviction where that was the main evidence against the defendant, and there was no evidence excluding the possibility that the fingerprints were placed on the objects at a time other than that of the crime. See U.S. v. Harris, 530 F.2d 576 (4th Cir.1976). Further, here there was evidence that a fictitious time card, bearing appellant's fingerprints, was found in the victim's office after the victim was forced to write the company checks and then was abducted and slain. The car bearing appellant's fingerprints on the exterior belonged to the victim, who had driven the car, as was her custom, to her place of employment. The car had been washed a few days preceding the murder. A witness observed it being driven and abandoned by a black man on the day of the murder. Appellant is black. A witness, who was with the appellant when he cashed the checks, identified appellant as the person who endorsed and cashed them. It is uncontradicted that the prints were those of appellant. In the circumstances, the fingerprints were admissible and the weight to be given them was a matter for the jury. United States v. Bonds, 526 F.2d 331 (5th Cir.1976).

In a subsidiary argument the appellant contends that the officer who lifted the fingerprints and testified at trial was not properly qualified. The officer testified that he lifted fingerprints as a regular part of his duties as a detective and that he had received training in fingerprint lifting. The trial court has wide discretion whether to qualify a witness as an expert, and we will reverse the exercise of that discretion only if it is shown to be manifestly wrong. Robinson v. State, 274 Ark. 312, 624 S.W.2d 312 (1981). Further, Uniform Rules of Evidence, Rule 702, provides that a witness is qualified as an expert "by knowledge, skill, experience, training, or education." Here, we cannot say that the trial court abused its discretion.

The appellant contends that the trial court erred in refusing to declare a mistrial in connection with the defendant's Fifth Amendment right against self-incrimination. The alleged error occurred during the direct examination...