McDaniel v. State, CR82-60

• Decision Date: 21 March 1983
• Docket Number: No. CR82-60,CR82-60
• Parties: Timothy Ellis McDANIEL and Jaran Gookin, Appellants, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 57

648 S.W.2d 57

278 Ark. 631

Timothy Ellis McDANIEL and Jaran Gookin, Appellants, v. STATE of Arkansas, Appellee.

No. CR82-60.

Supreme Court of Arkansas.

March 21, 1983.

Anderson & Anderson by Sam L. Anderson, Hot Springs, for Jaran gookin.

J. Sky Tapp, Hot Springs, for Timothy McDaniel.

Steve Clark, Atty. Gen. by Theodore G. Holder, Asst. Atty. Gen., Little Rock, for appellee.

HAYS, Justice.

Appellants, Tim McDaniel and Jaran Gookin, known as Jose, were convicted of the capital felony murder of Thomas Farnham, Jr., and sentenced to life without parole. For reversal, they argue three points in common: The trial court erred in refusing to sever the charges and try them separately; they were wrongfully restricted in peremptory challenges; and the trial judge should have granted motions for mistrial after telling the jury this "could very well be a divided type of trial".

Additionally, McDaniel contends grounds for a mistrial occurred when a witness stated McDaniel used an "alias"; that a statement allegedly made by McDaniel to a police officer was improperly admitted; and that the trial court erred in instructing the jury in accordance with AMCI 401. Gookin argues the trial court erred in not giving AMCI 403 to the jury in conjunction with 401; that it is cruel and unusual punishment for an accomplice to be subjected to punishments imposed under the capital felony murder statutes, and that a motion for a directed verdict should have been granted because there was no evidence to rebut Gookin's affirmative defense that he did not solicit, induce or aid the commission of the murder. We find the argument that the severance motions should have been granted to be persuasive and, accordingly, we reverse and remand the cases for separate trials.

On August 22, 1981, the Hot Springs Police Department received a report that Thomas Farnham, Jr. had been missing since the evening of August 16, when he had left home to meet Jose Gookin and Tim McDaniel at a 7-11 store on Park Avenue to demonstrate a machine gun. Farnham's whereabouts remained a mystery until August 30, when Mike Brewer, a friend of McDaniel, reported to the police that McDaniel had told him he had murdered Farnham. McDaniel and Gookin were taken into custody and each gave an account of Farnham's death, the major difference being that each accused the other of the murder. Farnham's body, badly decomposed, was found on information supplied by Gookin. McDaniel showed the police where he had hidden the machine gun and where he had thrown the murder weapon, a 22 pistol, in the lake. Both weapons were recovered.

Gookin and McDaniel agreed they had met Farnham on Sunday evening and driven out on Mill Creek Road in Gookin's sister's car to try out the machine gun McDaniel proposed to buy. Gookin says that Farnham and McDaniel each fired the machine gun as dusk was falling. Farnham called to Gookin to turn the car lights toward the target so he and McDaniel could examine the pattern. As he walked toward the car, Gookin says he heard a shot and turned to see Farnham clutch the back of his head and run toward the road. Gookin says he shouted at McDaniel, who then pointed the pistol at him. He says McDaniel shot Farnham a number of times and dragged his body out of sight. When he returned fifteen minutes later he was covered with blood and had the pistol, machine gun and Farnham's billfold containing $22.00. Gookin says he refused McDaniel's offer to divide the money.

McDaniel's account largely reversed their roles: he says that as he watched, Gookin shot Farnham in the back of the head and dragged the body out of sight. According to McDaniel, they divided the money and Gookin dropped McDaniel off at his brother's home. McDaniel admitted keeping the machine gun and pistol, inadvertently leaving behind a sheet of instructions on the machine gun. Each man claimed the pistol belonged to the other and each denied knowledge of its presence until the murder occurred. In one other important respect their stories differed: McDaniel says he and Gookin wanted the machine gun to rob a jewelry store and planned to take it from Farnham simply by force, not by murder. McDaniel explains that the gun was illegal and Farnham would not have been able to report the robbery. Gookin denies any plan to rob either Farnham or a jewelry store--that McDaniel simply wanted to buy the gun, or so he thought. Gookin says McDaniel asked him later about the instruction sheet left in the car, from which Gookin retrieved it, hiding it in his bed. Gookin attributes hiding the instruction sheet and his failure to go to the police to McDaniel's threats that he would kill him if he reported the murder.

Shortly after the jury had retired it returned to tell the trial judge it was unable to determine who had actually pulled the trigger. In a bifurcated proceeding the jury found both men guilty and fixed punishment at life without parole. The verdict forms reflect an irreconcilable finding: on Form 2 (mitigating circumstances) as to McDaniel, the jury placed an "X" by Circumstance No. C(6), finding that "The capital murder was committed by another person and McDaniel was an accomplice and his participation relatively minor." But the identical finding was made with respect to Gookin, thus the jury found that neither Gookin nor McDaniel had committed the murder--that each was merely a passive participant. Hence, it is clear beyond question that the jury did not, or could not, segregate the evidence with respect to the crucial issue of which defendant committed the murder.

Appellants insist that their motions to sever the informations and grant separate trials should have been granted, and for a number of reasons we have come to the conclusion that unless the arguments are sustained a manifest error will be left uncorrected.

Prior to the adoption of the Arkansas Rules of Criminal Procedure, our law gave the trial court discretion in granting severance of defendants in all but capital cases, where defendants were entitled to severance as a matter of right. Ark.Stat.Ann. § 43-1802 (Repl.1977) Vault v. Adkisson, Judge, 254 Ark. 75, 491 S.W.2d 609 (1972). However, A.R.Cr.P. Rule 22.3 superseded § 43-1802 and gives the trial court discretion to grant or deny a severance in all cases. And we will not disturb that ruling on appeal in the absence of an abuse of discretion. Hallman and Martin v. State, 264 Ark. 900, 575 S.W.2d 688 (1979). Although we have uniformly upheld the trial court in cases where severance of defendants is denied, (Spillers v. State, 268 Ark. 217, 595 S.W.2d 650 (1980); Legg v. State, 262 Ark. 583, 559 S.W.2d 22 (1977)), in doing so we have noted that the defenses were not antagonistic. See Hallman and Martin v. State, supra; Ingram v. State, 255 Ark. 6, 498 S.W.2d 862 (1973); see also Washington, Ward and Hampton v. State, 267 Ark.App. 1040, 594 S.W.2d 29 (1980). Thus, the current state of our law pertaining to severance of defendants in capital cases rests upon the sound discretion of the trial court, but while the discretionary power is broad, it is not unlimited, and the overriding duty of the trial judge is to determine that defendants can be tried together without substantial injustice.

The rule recognized in many jurisdictions is that where defenses are antagonistic, severance should be granted and this principle has the sanction of the American Bar Association's Standards Relating to Joinder and severance: "[I]t has long been the view that defendants joined for trial should be granted a severance whenever their defenses are antagonistic to each other". ¹

In Jenkins and Warner v. State, 230 A.2d 262 (Del.1967), the Delaware Supreme Court said that although severance is ordinarily a matter of discretion, where defenses are antagonistic, severance should be granted. The court observed that defenses are antagonistic when to believe one defendant, it is necessary to disbelieve the other. In People v. Krugman, 44 Misc.2d 48, 252 N.Y.S.2d 846 (1964) the Court stated that the need for severance most frequently arises when each defendant asserts his own innocence and accuses the other. In Jung v. State, 32 Wis.2d 541, 145 N.W.2d 684 (Wis.1966) the Wisconsin Supreme Court said that the demands of a fair trial...