Maxwell v. State
| Decision Date | 19 January 1976 |
| Docket Number | No. CR,CR |
| Citation | 259 Ark. 86,531 S.W.2d 468 |
| Parties | Theotis MAXWELL, Appellant, v. STATE of Arkansas, Appellee. 75--36. |
| Court | Arkansas Supreme Court |
Robert E. Irwin, Russellville, for appellant.
Jim Guy Tucker, Atty. Gen., by Gary Isbell and Michael G. Epley, Asst. Attys. Gen., Little Rock, for appellee.
This case was tried on a capital felony murder charge. It was alleged that appellant Theotis Maxwell and one Lee Otis Harris had beaten Ellis Robb, an elderly storekeeper to death during a robbery at his store. On appeal from a sentence to life imprisonment without parole, Maxwell originallyasserted only two points, both having to do with procedures pertaining to the selection of the jury which found him guilty and fixed the sentence. We find that there was substantial compliance with the requirements of the governing statute, as against the objections made by appellant.
The jury wheel was quashed on motion of appellant and his codefendant, who was tried separately. The circuit judge discharged the commissioners who had selected the names placed in that wheel and named four new commissioners, who selected approximately 600 names for a new wheel, from which the panel of jurors for the trial of Maxwell was drawn. Appellant objected specifically to three persons whose names were included in both wheels. Appellant challenged two of these peremptorily, but the third was seated after appellant had exhausted all his pereumptory challenges. Appellant did, however, object to the procedure, contending that, when the original jury wheel was quashed, the court was required to select a panel of jurors for the trial of the particular case. Ark.Stat.Ann. § 39--214 (Supp.1973) provides, in pertinent part:
If the trial judge sustains the challenge to the use of the names in the jury wheel or box for the drawing of trial jurors, he shall appoint a jury commission of not less than three persons, qualified and sworn as commissioners under the requirements of this Act (§§ 39--101--39--108, 39--201--39--220), to select a sufficient number of persons possessing the qualifications of jurors as set forth in this Act (§§ 39--101--39--108, 39--210--39--220), and in such numbers as the Judge shall designate, which list of persons upon being summoned shall constitute the panel of jurors for the trial of the cause. If such panel is exhausted prior to the formation of the trial jury for any reason, the commission shall be reconvened and additional names placed on the list to be summoned as special jurors in such numbers as is deemed necessary to complete the jury for the trial of the cause.
The four newly appointed jury commissioners were instructed by the circuit judge to select 600 to 625 names for jury service. It does not appear that they were told that the list would be used for any particular trial or trials. Some of them knew that a previous jury panel had been quashed, but there was no evidence that they knew any of the names on that panel. The list prepared was sealed by the commissioners and delivered to the circuit court clerk. It was stipulated that these commissioners were not furnished a list of the names of the persons constituting the quashed jury wheel, but the names of all jurors on the panel which had been drawn from the quashed wheel, who had actually served as jurors, were included in the list of persons ineligible because of previous jury service.
It is the clear intent of the section of the statute upon which appellant Maxwell relies to leave to the discretion of the trial judge the number of persons to be selected by newly appointed jury commissioners to constitute the panel for the trial of a case after the jury wheel has been quashed. The naming of the commissioners was in compliance with the statute. It was not an abuse of discretion for the trial judge to require a list of 600 or more names in a case in which the jury was to be qualified for the death penalty. The names called to be qualified as jurors in the case were apparently drawn at random from this list and the jury chosen from 148 names so drawn. Appellant has not shown how he was prejudiced by the procedure followed, and we cannot conceive of any prejudice that might have resulted.
It does not clearly appear whether the three jurors were on the original panel drawn from the jury wheel or whether they were merely included on the master list constituting the jury wheel. At least, the objection to the juror seated was stated as being based on the fact that her name was on the panel. The matter is of no consequence, however, because there is no prohibition against selection of any particular name which may have appeared in either the wheel or the panel, nor do we know of any reason why there should be. The persons disqualified are those who have served as jurors during the proceeding two years. Ark.Stat.Ann. § 39--103 (Supp.1973).
The record does not disclose the particular ground on which the jury wheel was quashed, but, as we understand the record, it was on a basis that invalidated the entire wheel, and not just the panel drawn from it. The appearance of only three names on either the new list of 600 or on the first group drawn from it certainly is not indicative of a subversion of the process such as that condemned in Thomas v. State, 238 Ark. 201, 379 S.W.2d 26, where, before the enactment of the Jury Wheel Act (Ark.Stat.Ann. § 39--201 et seq. (Supp.1973)) a panel summoned by the sheriff consisted of 32 of the 38 members of the panel which had just been quashed.
Other objections made but not originally argued by appellant have given us some concern, but we find no reversible error.
An objection was made to a search warrant for the residence in which appellant Maxwell lived because the supporting affidavit stated only the conclusions of the officer making it, without giving his basis for believing them to be true when not all of them could have been within the personal knowledge of the affiant. If this affidavit had been the only record of the evidence before the municipal judge who issued the warrant, we would have no alternative to quashing the warrant and the evidence disclosed by the search. But this is not the case. The municipal judge properly examined the affiant under oath and the questions and answers were recorded and signed by the officer. The officer testified that a person named Harris who had been arrested for the crime, had informed the officer of the description and location of clothing he had worn during the commission of the crime and the description of the clothing worn by Maxwell. We also said that Harris had told him that he had seen Maxwell hide $400 and a quantity of change between the mattresses of Maxwell's bed and that the clothing Maxwell had worn during the commission of the crime was at Maxwell's home. The officer testified that Maxwell's home was the residence of his stepfather, Tolley McVey, Jr. This was the house for which the search warrant was issued and from which the incriminating evidence was seized.
Ark.Stat.Ann. § 43--205 (Supp.1973) authorizing the issuance of search warrants is not so restrictive as to require that the finding of probable cause by the magistrate be based solely on a single affidavit originally presented. We have said that the act eliminates from consideration any oral testimony unless it is reduced to writing and accompanied by affidavit. Cockrell v. State, 256 Ark. 19, 505 S.W.2d 204. In order to be an affidavit an instrument must be reduced to writing and sworn to or affirmed before some person legally authorized to administer oaths. Thompson v. Self, 197 Ark. 70, 122 S.W.2d 182. The procedure followed here complies with the requirements of the statute. In Thompson, we quoted with approval a definition of an affidavit as 'any voluntary ex parte statement reduced to writing and sworn to or...
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...of itself to establish an informant's credibility: Armour v. Salisbury, 492 F.2d 1032 (6th Cir. 1974) (unidentified); Maxwell v. State, 259 Ark. 86, 531 S.W.2d 468 (1976) (identified); State v. Patterson, 309 So.2d 555 (Fla.App.1975) (identified); State v. Archuleta, 85 N.M. 146, 509 P.2d 1......
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...to determination of probable cause), cert. denied, 555 U.S. 916, 129 S.Ct. 271, 172 L.Ed.2d 200 (2008).9 But see Maxwell v. State, 259 Ark. 86, 92, 531 S.W.2d 468 (1976) ("[w]e unhesitatingly find that the mere fact that [the informant's] statement was self-incriminating was an adequate bas......
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...See Schneider v. State, 269 Ark. 245, 599 S.W.2d 730 (1980); Gatlin v. State, 262 Ark. 485, 559 S.W.2d 12 (1977); Maxwell v. State, 259 Ark. 86, 531 S.W.2d 468 (1976) ("We unhesitatingly find that the mere fact that Harris's statement was self-incriminating was an adequate basis for accordi......
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State v. Flores
...determination of probable cause), cert. denied, 555 U.S. 916, 129 S. Ct. 271, 172 L. Ed. 2d 200 (2008). 9. But see Maxwell v. State, 259 Ark. 86, 92, 531 S.W.2d 468 (1976) ("[w]e unhesitatingly find that the mere fact that [the informant's] statement was self-incriminating was an adequate b......