McCree v. State

• Decision Date: 10 September 1979
• Docket Number: No. CR78-227,CR78-227
• Parties: Ardia V. McCREE, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 938

585 S.W.2d 938

266 Ark. 465

Ardia V. McCREE, Appellant, v. STATE of Arkansas, Appellee.

No. CR78-227.

Supreme Court of Arkansas, In Banc.

Sept. 10, 1979.

Christopher C. Mercer, Jr., Little Rock, for appellant.

Steve Clark, Atty. Gen., by E. Alvin Schay, Asst. Atty. Gen., Little Rock, for appellee.

HICKMAN, Justice.

Ardia V. McCree was tried in the Ouachita County Circuit Court for capital felony murder; he was convicted and sentenced to life imprisonment without parole.

On appeal he alleges five errors which we find on review to be without merit.

The evidence against McCree was mostly circumstantial, no witness was produced who saw McCree kill Evelyn Boughton, the victim.

The crime occurred shortly after 8:00 a. m., February 14, 1978, at the La Tienda Gift Shop and Service Station in Camden, Arkansas, which Mrs. Boughton owned. McCree made a statement to the police which was video-taped and shown to the jury. McCree's version of the incident, as related on the tape, was that he left home early that morning with the intention of talking to his mother-in-law. He was driving his white and maroon colored Lincoln Continental. He had taken his Winchester 30.30 caliber rifle with him and laid it in the back seat of his car. He explained he was having trouble with his wife and felt he needed protection.

He drove up to the La Tienda Service Station and put $2.00 worth of gasoline in the car. While he was there a tall black man wearing an overcoat walked up to him and asked him for a ride. He described the man, who was a stranger to him, as having a bumpy face, with a long scar. He agreed to give the man a ride and went in to pay for the gasoline. As he did, the other man walked in with the rifle and said, "Hold it." Mrs. Boughton reached out, or made a move, and he shot her. The other man got a bank bag off a counter, turned the gun on McCree and said, "Let's go."

They got in the car and the other man drove, holding the rifle on McCree. They left Camden at a high rate of speed, going north on Highway 7. After they left town they turned off Highway 7 onto a dirt road. As they were going down the road they met a log truck going toward Highway 7. Less than a mile down the dirt road the other man stopped the car in the middle of the road, took the gun and bank bag with him and told McCree to turn around, leave and say nothing. McCree said he last saw the man walking down the road.

McCree said he drove back to Highway 7 and headed north. He passed the same log truck at the intersection with Highway 7, or just after he turned onto Highway 7. After he had traveled a short distance he passed the Camden Chief of Police who was headed in the other direction. The Chief turned around and followed him and at a road block the Chief asked him to get out of the car, searched him and asked for his driver's license. After several questions, McCree was released. McCree indicated he was going to Hot Springs. McCree said he was scared and confused and did not know what to do when he was stopped. He went to the races in Hot Springs and then decided to go to his brother's house in Little Rock. He was arrested in Hot Springs. He explained that they money he had on him at the time he was arrested, which was over $200.00, was mostly money that he had borrowed from two other people.

C. C. Blackstock, who runs a fish market across the street from the service station, said that he heard a shot that morning and saw a black male come out of the service station with a gun which appeared to be a rifle or a small gauge shotgun. He saw the man get into a car which he described as maroon, or reddish rust, with a white top. After the vehicle left he ran across the street, found Mrs. Boughton shot and called the police department.

The police arrived shortly thereafter, and, after talking to Mr. Blackstock, put out a call on the radio to stop a brown Mercury with a white top.

The Camden Chief of Police testified that he received that radio message and was searching for that vehicle when McCree was stopped north of Camden. Later that morning the description of the vehicle was changed to a maroon and white Lincoln Continental and, based on that information, the Chief called the Arkansas State Police in Hot Springs and asked that they find and arrest McCree.

Ann Mitchell testified that she was on her way to work that morning and drove past the La Tienda Service Station. As she was approaching the station she noticed a car pulling out at a high rate of speed. She described it as a white over burgundy Continental driven by one black male. She did not think anyone else was in the vehicle.

The log truck driver testified that he was passed on the dirt road in question that morning by a brown or maroon Mercury or Lincoln driven by a black male. He said he watched the vehicle in his rear-view mirror, saw the man drive down the road, stop, get out, get back in, turn around and follow the truck back to Highway 7. He did not see anyone else in the vehicle.

An F.B.I. officer testified that in his opinion the bullet which killed Mrs. Boughton came from McCree's rifle. The daughter of Mrs. Boughton identified the bank bag as belonging to Mrs. Boughton; she identified her mother's signature on several checks.

About two days after this crime the gun and the bank bag were found about twenty steps off Tate's Bluff Road, which is the dirt road the log truck driver used the morning of the 14th of February. The items were found less than a mile down the road from Highway 7.

The defense called as a witness, James C. Bevill, who had signed a statement for the police. It said that he had passed the service station that morning and saw McCree leaving the station. He saw no gun or object in McCree's hands. He said he saw another man sitting in the passenger side of McCree's vehicle.

Bevill had changed his story by the time of the trial. He had signed another statement shortly before the trial in which he indicated that he had misunderstood the police. He thought they had asked him if he knew a black man with a scar and he said, "Yes." He told them he knew a man by the name of Joe Brewer who had a scar. Brewer was later brought in and Bevill said that was not the man he saw. He said he never intended to say that he saw anyone with McCree at the station on that date. Bevill admitted that he did sign the first statement with the police. The police officers in question verified that he did make that statement and in their judgment understood what he was saying.

The defense revealed that since his last statement Bevill had been punished by the Camden Municipal Court for DWI. He admitted that he had told McCree's lawyer he was bitter about it because he thought he was a friend of the police.

McCree alleges five errors on appeal.

First, he argues that the jury was improperly qualified. McCree argues that certain jurors were excluded who may have had general objections to the death penalty but would not automatically vote against it.

In Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), the United States Supreme Court held it was reversible error for a trial court to exclude for cause a venireman who simply had scruples against capital punishment. Justice Stewart, for the majority, stated:

Specifically, we hold that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.

The jury in this case was qualified for the death penalty. That is, the State was seeking the death penalty and made an effort to obtain a jury that would consist of those individuals who could in good conscience sentence a person to death if the case warranted it. The State sought to exclude those veniremen who said they would automatically vote against the death penalty under any circumstances.

As an example of improper exclusions, McCree uses the Voir dire of Juror Douglas. At first, Douglas, in response to the State's questions, said:

Prosecuting Attorney: You've heard the question the Court asked you earlier and I'll try to recite it as best I can, and not embellish on it a lot, and get right to the point of it, as to whether or not if you're selected as a juror, you would refuse or, for some reason of your own under any circumstances to impose the penalty of death. . . . Okay. Mr. Douglas?

Juror Douglas: You said it depend on on death you say? I couldn't.

Prosecuting Attorney: You just would not?

Juror Douglas: No.

Prosecuting Attorney: Under any circumstances?

Juror Douglas: Under any circumstances. . . .

The attorney for McCree then questioned Douglas:

Defense Attorney: Yes, sir Mr. Douglas, are you saying that your mind would be completely closed before you went into the jury box, that you under no circumstances no matter what the situation proved, and no matter what the Court instructed you the law was, that you already made up your mind that you could not even consider it? It doesn't say that you could you consider it, it doesn't say committing yourself to both points in advance. Would you consider it?

Juror Douglas: Yes, I could consider it at that point. It's just like I said, I couldn't sentence a man to death.

Defense Attorney: I'm sorry. I can't hear you.

Juror Douglas: I say I could consider it, but as far as me sentencing a man as far as whatever you call it I couldn't do it. It's just against my will.

Defense Attorney: But you could consider it?

Juror Douglas: Yes. I could consider it. . . .

Defense Attorney: Your answer to the question as to whether or not you could consider the death penalty, and you say, "Yes, I could consider it." I'm saying that nobody is trying to get you to commit yourself to vote for it or not vote for it. Do I understand that you have strong feelings against it? But my question to you...