Lammers v. State, CR

• Decision Date: 23 October 1997
• Docket Number: No. CR,CR
• Citation: 330 Ark. 324,955 S.W.2d 489
• Parties: Clint LAMMERS, Appellant, v. STATE of Arkansas, Appellee. 97-417.
• Court: Arkansas Supreme Court

Page 489

955 S.W.2d 489

330 Ark. 324

Clint LAMMERS, Appellant, v. STATE of Arkansas, Appellee.

No. CR 97-417.

Supreme Court of Arkansas.

Oct. 23, 1997.

J.W. Green, Stuttgart, for Appellant.

Winston Bryant, Attorney General, Vada Berger, Assistant Attorney General, Little Rock, for Appellee.

THORNTON, Justice.

Appellant Clint Lammers was tried and convicted of capital murder in the slaying of Lois Wallace, a clerk at a grocery store in Stuttgart. He was convicted at a jury trial and sentenced to life imprisonment without parole. He argues four points on appeal, none of which contains reversible error. However, pursuant to the provisions of Ark. Sup.Ct. R. 4-3(h), we have examined the complete record for any prejudicial error that was objected to below, but not argued on appeal. We have concluded that there was reversible error when the trial court ruled that appellant's peremptory challenge of a middle-aged white male juror violated the requirements of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and ordered the juror to serve over appellant's objection.

Appellant's conviction was based upon evidence that he and two accomplices, Sean Smith and Brandon Isbell, who were tried separately, planned to rob Goacher's IGA grocery store and shoot the clerk to eliminate her as a witness. They went to the grocery store on the morning of October 28, 1994, where they first purchased batteries and remained in the store while they discussed their next move. Isbell picked up a pair of gloves and went to the front of the store, while appellant and Smith remained in the back. Isbell had a gun with him. He went to the cash register to pay for the gloves and shot the clerk, Ms. Wallace, in the head. When they could not open the cash register, they grabbed some cigarettes and fled to appellant's home. They took the gun, cigarettes, batteries, and gloves to a shed near appellant's house, where they hid the gun. They called police from appellant's house and turned themselves in. All three gave statements while in custody.

After the police arrived at the house, Smith told them what was hidden in the shed. The officers immediately conducted a warrantless search of the shed and found a .357 caliber revolver hidden under a stuffed animal and a .22 caliber handgun in a paper bag. They found the cigarettes, batteries, and gloves lying outside on the ground. Appellant argues that the confession and search were illegal, and that without this evidence, there was not substantial evidence to convict him.

Before we discuss the error upon which we reverse, or any of the other points on appeal, we must first consider his challenge to the sufficiency of the evidence. We do not consider trial errors until after we have considered arguments regarding the sufficiency of the evidence, including that which perhaps should not have been admitted. Scroggins v. State, 312 Ark. 106, 848 S.W.2d 400 (1993).

There was an abundance of evidence to support a conviction. Appellant's argument that the evidence was insufficient because some of it should have been suppressed is based upon a mistaken premise. See Scroggins v. State, supra. Further, this issue was not preserved for appeal because his motions lacked the requisite specificity. At the close of the State's case, appellant stated that he moved for "a directed verdict of dismissal based on the sufficiency of the evidence." He renewed his motion at the close of his case. We cannot consider this argument because his motions did not state "the specific grounds therefor." Walker v. State, 318 Ark. 107, 108, 883 S.W.2d 831, 832 (1994). A general motion such as the one made by appellant is not sufficient to apprise the trial court of the missing proof so that it can be made aware of any deficiency. Id. Therefore, the argument is procedurally barred from our review.

In capital murder cases, we are required by Ark. Sup.Ct. R. 4-3(h) to " ... review all errors prejudicial to the appellant in accordance with Ark.Code Ann. § 16-91-113(a)." Pursuant to the requirements of this rule, we make our own examination of the record and reject or accept on their merits all objections made at trial, whether or not argued on appeal, but we do not consider a matter in the absence of an objection. Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986). We review prejudicial, erroneous rulings even when such objections are not briefed by either the appellant or the State. Griffin v. State, 322 Ark. 206, 909 S.W.2d 625 (1995). We have concluded that the trial court committed prejudicial error in denying appellant's peremptory challenge of Mr. Clifford Burdett on the basis of the principles established by Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

We note that before Mr. Burdett was challenged, the selection of twelve jurors had been completed without an objection being preserved as to any peremptory challenge or dismissal for cause. However, the trial court determined that two alternate jurors should be chosen in the event that one or more of the jurors could not serve. Appellant, a seventeen-year-old white male, attempted to exercise a peremptory challenge of Mr. Burdett, and the prosecutor asked for a bench conference, arguing that appellant struck Mr. Burdett because he is a "white male of middle age." The following colloquy ensued:

Mr. J.W. Green, JR.: My client told me to strike him, Your Honor. My client sits here facing a possible death sentence. My client does not feel comfortable with this gentleman sitting as a juror. And in this particular case, I follow my client's recommendation. [A recess was taken in order for the court to review J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994) ]

...

* * *

Mr. Dittrich [prosecutor]: ... there have been a large number of middle age, or older, white males struck by the defendant regardless of the answers to their questions. And it is our position that a conscious pattern to strike those individuals. I realize J.E.B. versus Alabama does not deal with the age issue, but we would make both a gender and an age based discrimination argument.

...

* * *

The Court: Well, for the record, we should note that Mr. Harris is on the jury, and he is thirty--in his thirties? Do you all have a questionnaire?

Mr. Dittrich: Mr. Harris is thirty-two years old, Your Honor --- I'm sorry, Your Honor, forty-two. He was born in 1954.

The Court: Forty-two. And ... let's see, Mr. Stovesand--Mr. Stovesand was struck by the defendant, and I know he is in his twenties. Mr. Winfrey was excused by the defendant, and he is in his fifties.

The Court: Ms. Sells was excused by the defendant. She is a white woman. Mr. Berry was seated on the jury. Do we know how old Mr. Berry is?

Mr. Dittrich: Mr. Berry ... Let me look just a minute, Your Honor....Mr. Berry is thirty-six years old. But I would point out for the record that Mr. Berry is an African-American.

The court then proceeded to inquire into the age of each of the white males who had been peremptorily challenged. Appellant's attorney asked whether the State's Batson challenge was based upon race, gender, or age, and the prosecutor replied that it was based upon all three. The court disallowed the peremptory challenge. ¹ Appellant's attorney then explained his objection for the record as follows:

MR. J.W. Green, JR.: Your honor, the defendant's objection goes not only to the fact that he is a white man. It wouldn't make any difference if it was a white female. The defendant's objection goes to the fact--further to the fact that he did not feel comfortable with the answers that were asserted by Mr. Burdett up there. The defendant is sitting here in a capital murder case. His life is on the line. And he is exercising a peremptory challenge that he thought, and believes that he has a right to exercise. If it had been a black man, or if it had been a black woman, if it had been a white man, or if it had been a white woman, would the, what he perceived and what he heard from where he sits, he would have excluded that person from the juror--jury.

Although there was no finding by the court that this explanation was pretextual, Mr. Burdett was seated on the jury without further inquiry.

The threshold question is whether a prima facie case of discrimination has been presented by the State. In Mitchell v. State, 323 Ark. 116, 913 S.W.2d 264 (1996), we articulated the requirements for establishing a prima facie case as follows:

(1) showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose, (2) demonstrating total or seriously disproportionate exclusion of [the group in question] from the jury, or (3) showing a pattern of strikes, questions or statements by [the proponent of the strike] during voir dire.

Id. at 123-24, 913 S.W.2d at 268. By trying to discern a pattern, the trial court followed the correct procedure in attempting to determine whether a prima facie case had been established. However, its ruling was based upon a faulty premise, which was that age can be a basis for a Batson challenge.

In Sonny v. Balch Motor Co., 328 Ark. 321, 944 S.W.2d 87 (1997), we approved the trial court's finding that no Batson violation existed when the proponent of the strike in question there explained to the court that it was looking for mature, conservative business people. We noted that age and occupation are neutral criteria. Id.; accord United States v. Ross, 872 F.2d 249 (8th Cir.1989); United States v. Garrison, 849 F.2d 103 (4th Cir.1988). While we recognize that the United States Supreme Court has expanded Batson, as provided in Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992), and extended the principles to a consideration of gender, J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994), it is obvious from the record that the trial court's focus here was on the exclusion ...