Nooner v. State

• Decision Date: 09 October 1995
• Docket Number: No. CR,CR
• Citation: 322 Ark. 87,907 S.W.2d 677
• Parties: Terrick Terrell NOONER, Appellant, v. STATE of Arkansas, Appellee. 94-358.
• Court: Arkansas Supreme Court

Page 677

907 S.W.2d 677

322 Ark. 87

Terrick Terrell NOONER, Appellant, v.STATE of Arkansas, Appellee.

No. CR 94-358.

Supreme Court of Arkansas.

Oct. 9, 1995.

Herbert T. Wright, Jr., Little Rock, for Appellant.

Kent G. Holt, David R. Raupp, Asst. Attys.General, Little Rock, for Appellee.

BROWN, Justice.

The appellant, Terrick Terrell Nooner, was convicted of capital murder committed in furtherance of a robbery and sentenced to death by lethal injection.He raises 15 points on appeal.We agree with the State that the points have no merit, and we affirm.

On March 16, 1993, at approximately 1:30 a.m. Scot Stobaugh entered the FunWash laundromat on West Markham Street in Little Rock to do laundry.While there, he was shot seven times and died of multiple gunshot wounds.He was found lying face down on the laundromat floor in a pool of blood.Subsequent examination showed that he was shot twice in the upper right arm and five times in the back in what later were described as contact wounds.Seven .22 caliber shell casings were found on the floor close to the body together with a tan hat, keys, and a jar of Carmex lip salve.His Chevrolet Beretta was parked in the laundromat's parking area unlocked, with its parking lights on, and with keys in the ignition.A ring and a neck band remained on the victim's body.

The FunWash laundromat had three surveillance cameras in operation at the time of the shooting which recorded on one VHS videotape.The general manager of the business, Janie White, helped investigating police officers from the Little Rock Police Department retrieve the videotape.The videotape depicted Stobaugh and a second person accosting him in the laundromat.It did not show the actual murder.

Detective Joe Oberle, a homicide detective with the Little Rock Police Department, took possession of the videotape and had still photographs made from the frames that included the victim and the suspect.Detective Oberle used several private firms in Little Rock to enhance the tape in order to obtain the clearest still picture possible--Color Masters, Camera Mart, and Jones Productions.In four of the enhanced photographs, the victim's face was "mosaicked out" at the request of his family and one of those photographs was given to the news media to assist in the investigation.Rick Adcock with the Little Rock Police Department Crime Scene Search Unit also made still photographs from the videotape.

Ron Andrejack, the firearms examiner for the State Crime Laboratory, examined the bullets and shell casings found at the crime scene and determined that five of the seven bullets were fired by the same firearm.The other two bullets were too damaged for any conclusion to be reached.He further determined that all seven shell casings were fired from the same gun.By examining the various marks on the bullets and shell casings, he ultimately concluded that the characteristics on the bullets and shell casings were consistent with a .22 long rifle Ruger semi-automatic pistol.

In a matter of days, the police investigation centered on Nooner due in large part to statements given to Detective Oberle by Antonia "Toni" Kennedy, a friend of Nooner's.Antonia Kennedy is the sister of Jazmar Kennedy, who identified Nooner in the surveillance photographs at trial, and the sister of Terri Kennedy, who was Nooner's girlfriend at the time of the trial and who testified as a defense witness.Antonia Kennedy implicated Nooner in the FunWash shooting and subsequently testified at trial that on the morning after the shooting Nooner told her that he had murdered Scot Stobaugh after demanding money from him.She added that she had seen Nooner with a .22 Ruger pistol that day and had kept the gun for Nooner for a brief period of time.Nooner was arrested on April 23, 1993, and charged with capital murder, aggravated robbery, and theft of property.

On September 20, 1993, a seven-day trial commenced.Nooner was convicted of capital felony murder with aggravated robbery and theft of property as the underlying felonies.After the penalty phase of the trial, the jury found two aggravating circumstances: (1) that Nooner had previously committed another felony, an element of which was the use or threat of violence; and (2) that the murder was committed for pecuniary gain.The jury found no mitigating circumstances and returned a verdict of death by lethal injection.

I.JUROR DISMISSED FOR CAUSE

Nooner first contends that the trial court erred in removing a juror for cause based on her attitude toward the death penalty.Citing Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776(1968), Nooner urges that this juror was struck due to her conscientious scruples against the death penalty rather than her total opposition to it, which violated his right to due process.

During the voir dire examination, juror Elizabeth Miller was questioned by counsel and by the circuit court.Her responses to the State's questions on voir dire were as follows:

PROSECUTOR: Is the fact that the death penalty is sitting out here if you find him guilty going to cause you to make me have to do more than that?Have to prove beyond all shadow of a doubt or all imaginary doubt that he's guilty?

JUROR: Yes.

PROSECUTOR: It is?

JUROR: Uh huh (Meaning yes).

PROSECUTOR: So, in other words, you would hold us to that higher standard?

JUROR: Yes.

PROSECUTOR: In a case like this there are two possible sentences.If you, the jury, would render a guilty verdict, there are only two sentences.One is life imprisonment without parole.That's one option, and the other is the death penalty.Do you feel that if you have those two choices before you, that you would be inclined to lean toward life imprisonment?

JUROR: Yes.

PROSECUTOR: If you had those choices before you, would you automatically feel that the life imprisonment without parole would be your choice?

JUROR: Yes, I do.

PROSECUTOR: So, in other words, regardless of the evidence that we presented to you that might suggest that the death penalty is appropriate, it's your belief that you would--If you were a juror, you would vote for life imprisonment without parole?

JUROR: Yes, uh-huh (Meaning yes).

Ms. Miller's responses to the defense counsel's questions were as follows:

DEFENSE COUNSEL: If you determine that they're guilty, then you consider punishment.The Court will instruct you that in order to consider the death penalty, the State has to prove certain aggravating circumstances and prove that those aggravating circumstances outweigh any mitigating circumstances that may exist beyond a reasonable doubt.

JUROR: I understand.

DEFENSE COUNSEL: If the Judge instructed you that that was the law, and those were the instructions you were supposed to follow, could you follow those instructions?

JUROR: I think so.

....

DEFENSE COUNSEL: And you can follow his instructions and consider everything that you should consider in making your determination which punishment is possible or which punishment is appropriate?

JUROR: Yes.

....

DEFENSE COUNSEL: If the Judge instructs you that the State has the burden of proving each and every element of the charges against Terrick beyond a reasonable doubt, and he further instructs you that a reasonable doubt isn't any possible or imaginary doubt.It's a doubt that would cause a reasonable person to pause or hesitate in one of the grave transactions of life.And, further, that a juror is convinced beyond a reasonable doubt when they have an abiding conviction of the truth of the matter.Could you follow that instruction?

JUROR: I think so.

On requestioning by the State, the juror answered:

PROSECUTOR: You really don't want to have to ever be the person who would have to vote on whether or not you could sentence somebody to death.Is that correct?

JUROR: That's right.

PROSECUTOR: Would it be really difficult for you?Do you think you could actually sign your name to a verdict form?

JUROR: No, I don't think so.

Upon questioning by the circuit court, the juror stated:

CIRCUIT COURT: Can you conceive of any circumstances where you had a choice between life without parole and the death penalty where you would choose the death penalty?

JUROR: I don't know.

The circuit court then issued its ruling:

After viewing this juror, she said several things that were a bit inconsistent.Taking an overall view of all of her questions, I'm convinced that if this lady is part of this jury, that the State would be foreclosed from a verdict before we start.I believe this lady is irrevocably locked into voting for life without parole, and because of that would not follow the evidence, and so, I'm going to grant the State's motion for cause as to this juror.

The decision to excuse a juror for cause rests within the sound discretion of the trial court and will not be reversed absent an abuse of discretion.Biggers v. State, 317 Ark. 414, 878 S.W.2d 717(1994);Cox v. State, 313 Ark. 184, 853 S.W.2d 266(1993).We have said that the standard for determining if a prospective juror should be excused for cause is no longer whether that person makes it unmistakably clear that he or she would automatically vote against the death penalty.Pickens v. State, 301 Ark. 244, 250, 783 S.W.2d 341, cert. denied497 U.S. 1011, 110 S.Ct. 3257, 111 L.Ed.2d 766, cert. denied500 U.S. 929, 111 S.Ct. 2044, 114 L.Ed.2d 128(1990).The standard now is whether a juror's views about the death penalty would prevent, or substantially impair, the performance of the juror's duties in accordance with the instructions and the oath taken.Pickens v. State, supra.Hence, the circuit court must decide if the juror's views would prevent or substantially impair performance of his or her duty as a juror, and we give great deference to the circuit court that sees and hears the potential jurors.Wainwright v. State, 307 Ark. 569, 823 S.W.2d 449(1992).

Here, it is true that juror Miller testified...