Moss v. State

• Decision Date: 05 July 1983
• Docket Number: No. CR82-160,CR82-160
• Citation: 655 S.W.2d 375,280 Ark. 27
• Parties: John T. MOSS, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 375

655 S.W.2d 375

280 Ark. 27

John T. MOSS, Appellant, v. STATE of Arkansas, Appellee.

No. CR82-160.

Supreme Court of Arkansas.

July 5, 1983.

Rehearing Denied Sept. 12, 1983.

Lessenberry & Carpenter by Thomas M. Carpenter, Little Rock, for appellant.

Steve Clark, Atty. Gen. by Michael E. Wheeler, Asst. Atty. Gen., Little Rock, for appellee.

HOLT, Justice.

The appellant was convicted of capital felony murder and sentenced to life imprisonment without parole. He raises three points on appeal. We affirm.

The appellant first argues that the trial court erred in failing to excuse for cause venireman Brien Breckenridge. The appellant excused Breckenridge peremptorily. He later exhausted his peremptory challenges, which, he claims, forced him to accept an unwanted juror when the jury was finally selected. Breckenridge's mother had previously been accepted as a juror, without objection from either party. The appellant contends that the relationship between Breckenridge and his mother is so close that it constituted implied bias, and, therefore, the court's refusal to excuse Breckenridge for cause was prejudicial error. However, no case is cited to us holding that family members may not serve on the same jury in the absence of any indication of bias on the part of at least one of them. Breckenridge was a 39 year old farmer with a family of his own. He left home when he was 17 years old. He stated unequivocally that he would not be influenced by his mother's presence on the jury. He said "I absolutely do my own thinking," and that he would be a fair and impartial juror. As we have said on many occasions, the qualification of a juror is within the sound judicial discretion of the trial court, which has the 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. Hobbs v. State, 277 Ark. 271, 641 S.W.2d 9 (1982); Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980); Satterfield v. State, 252 Ark. 747, 483 S.W.2d 171 (1972). Here, we hold that appellant has not met the burden of demonstrating an abuse of discretion.

The appellant next asserts that the trial court erred in failing to declare a mistrial inasmuch as the state intentionally placed inadmissible evidence before the jury. The appellant testified on direct examination that he did not kill the robbery victim, that he did not have a gun on the night of the robbery/murder, he did not know that one of his confederates had a gun, and he did not like guns. On cross-examination the prosecutor asked, "Mr. Moss, you told this jury right here in Sharp County, Arkansas, that you didn't like guns, so I want you to look at that jury and tell them about that .38 pistol you carried out in Arizona." Following a negative answer, the appellant's prompt objection to the question was sustained. The trial court, however, refused to grant the appellant's motion for a mistrial and admonished the jury to disregard the question. Appellant argues there is no good faith basis for the prosecutor's question. It appears the record is silent with respect to the absence of good faith. Suffice it to say that since this argument was not addressed to the trial court and it is raised for the first time on appeal, we do not consider it. Pace v. State, 265 Ark. 712, 580 S.W.2d 689 (1979); Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980); and Hill v. State, 275 Ark. 71, 628 S.W.2d 284, 285 (1982). Furthermore, as indicated, the trial court admonished the jury to disregard the question, give it no consideration, and "[t]reat it as though it had not even been uttered." Even so, appellant insists that the admonition did not remove the prejudice. The declaration of a mistrial is a drastic remedy and should be resorted to only when it appears that any possible prejudice is not removed by an admonition or cautionary instruction to the jury. The trial court is entrusted with a wide latitude of discretion in granting or denying a mistrial, and its decision will not be reversed absent an abuse of that discretion or a manifest prejudice to the defendant. Hill v. State, supra; and Chaviers v. State, 267 Ark. 6, 588 S.W.2d 434 (1979). In the circumstances we find no abuse of discretion nor a manifest prejudice to the appellant.

Finally, the appellant argues that the trial court erred in failing to submit the affirmative defense provided for in Ark.Stat.Ann. § 41-1502(2) (Repl.1977) as a simple or ordinary defense without the burden of proof being placed on him. The appellant was convicted of a violation of Ark.Stat.Ann. § 41-1501(1)(a), which provides, in pertinent part, as follows:

A person commits capital murder if: .... acting alone or with one or more other persons, he commits or attempts to commit .... robbery, burglary, .... and in the course of and in furtherance of the felony, or in immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life ....

Section 41-1501(2), primarily in issue here, provides as follows:

It is an affirmative defense to any prosecution under subsection (1)(a) for an offense in which defendant was not the only participant that the defendant did not commit the homicide act or in any way solicit, command, induce, procure, counsel, or aid its commission.

Ark.Stat.Ann. § 41-110(4) provides:

The defendant must prove an 'affirmative defense' by a preponderance of the evidence.

Here, two persons, in addition to the appellant, burglarized a motel. Arthur Garner, who lived in a room to the back of the motel office with his wife, Florence, was fatally shot during the course of the burglary and robbery. Florence also was shot, but she survived. The appellant admitted being present at the time these events occurred, but he contended he was not involved in the robbery scheme and was an unwitting participant in the alleged offense. He raised the affirmative defense set forth in § 41-1501(2). On appeal he contends that statute unconstitutionally shifts to the defendant the burden of proof as to elements of the crime and, therefore, he was denied due process of law. He relies on the cases of Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), and In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). In those cases, the Supreme Court held that due process requires that criminal statutes place upon the state the burden of proving each element of any criminal offense beyond a reasonable doubt, and the burden of disproving any element of an offense cannot be shifted to the defendant. However, we do not think those cases are controlling here, because the statute in question does not absolve the state of the duty of proving any element of capital felony murder beyond a reasonable doubt. Here, the jury was instructed that the state must prove beyond a reasonable doubt each element of the offense charged; that the defendant is not required to prove his innocence; and that the defendant is presumed to be innocent. When the trial court instructed the jury with respect to the affirmative defense as defined by the statute, he also told the jury, "Whatever may be your finding as to this defense, you are reminded that the State still has the burden of establishing the guilt of John Thomas Moss [appella...