Parker v. State

• Decision Date: 06 November 1989
• Docket Number: No. CR,CR
• Citation: 779 S.W.2d 156,300 Ark. 360
• Parties: William Frank PARKER, Appellant, v. STATE of Arkansas, Appellee. 88-95.
• Court: Arkansas Supreme Court

Page 156

779 S.W.2d 156

300 Ark. 360

William Frank PARKER, Appellant, v. STATE of Arkansas, Appellee.

No. CR 88-95.

Supreme Court of Arkansas.

Nov. 6, 1989.

Howard L. Slinkard, James M. Luffman, Rogers, for appellant.

Jack Gillean, Asst. Atty. Gen., Little Rock, for appellee.

GLAZE, Justice.

This is the second time the Parker case has been before this court. On November 12, 1985, Parker was convicted of two counts of capital felony murder, two counts of attempted first degree murder, two counts of burglary, kidnapping and attempted capital murder. He received the death penalty for two counts of capital felony murder for causing the deaths of James and Sandra Warren in the course and furtherance of a burglary. This court reversed the capital murder convictions finding that the Warrens' murders were not caused in the course of or furtherance of a burglary, but that Parker went into the Warrens' home for one purpose--to murder them. Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987). Only the capital murder convictions were reversed, the other convictions were affirmed, and the capital murder convictions were severed.

On retrial, the appellant was charged pursuant to Ark.Code Ann. § 5-10-101(a)(4) (Supp.1987)--a person commits capital murder if with premeditated and deliberated purpose of causing the death of any person, he causes the death of two (2) or more persons in the course of the same criminal episode. Acting pro se with the assistance of two attorneys present at trial, the appellant was again convicted of capital murder and given the death penalty. The appellant argues eight points for reversal. We find no merit in any of them, therefore we affirm.

Appellant first argues that our reversal of his first capital felony charge amounted to a finding that the prosecution failed to prove an essential element of the offense, viz., that the deaths occurred in the course of a burglary. As a consequence, he claims that, under the rationale of Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), the double jeopardy clause precluded a second trial because the conviction was effectively reversed based upon the state's failure to produce sufficient evidence to sustain a guilty verdict.

The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding. Burks, 437 U.S. 1, 98 S.Ct. 2141. However, there has been a distinction made between trial error and evidentiary insufficiency; trial error does not bar retrial under double jeopardy. Id. Appellant here mistakes evidentiary insufficiency with trial error. See Sellers v. State, 300 Ark. 280, 778 S.W.2d 603 (1989); see also Montana v. Hall, 481 U.S. 400 (1987). Trial error does not constitute a decision to the effect that the government has failed to prove its case and implies nothing with respect to guilt or innocence of the defendant. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984) (quoting Burks v. United States, 437 U.S. at 15, 98 S.Ct. at 21). Here, the trial error was in charging and trying Parker under the wrong capital murder provision. In the first Parker case, we stated that Parker could have been charged under Ark.Code Ann. § 5-10-101(a)(4)--the capital murder provision with which the state charged and convicted him at his second trial. When holding Parker had been convicted under an improper provision, we never suggested insufficient evidence existed to prove he committed capital murder if charged and convicted under the correct law.

At the second trial, appellant was correctly charged with the premeditated and deliberated purpose of causing the death of any person, he causes the death of two or more persons in the course of the same criminal episode. In our earlier Parker decision, we set out the facts surrounding the murders committed by the appellant. Suffice it to say, the state proved appellant shot at Cindy Warren but missed. Then, he chased Cindy's father into the Warren house where appellant shot and killed Cindy's parents, Mr. Warren and his wife, Sandra. In sum, the state at the second trial corrected its error by charging and convicting the appellant under capital murder provision § 5-10-101(a)(4), and the evidence was unquestionably sufficient to sustain the jury's guilty verdict under that charge.

In his second issue, appellant urges the trial court erred in allowing the state to refer to events which occurred after the murders of Mr. Warren and his wife. Immediately after killing the Warrens, appellant located his former wife, Pam Warren, at her residence, kidnapped her and later shot her and a policeman at the police station where he kept Pam hostage. Appellant was convicted of these crimes committed subsequent to the killing of the Warrens and those convictions were affirmed in the first Parker appeal. At the second trial, appellant argued that those subsequent events (crimes) should have been excluded under A.R.E. Rules 403 and 404(b). The trial court admitted the state's evidence, but in doing so, admonished the jury that it could consider the evidence only for determining whether "the appellant had a state of mind sufficient to constitute the crime with which he was charged," viz., the capital murders of the Warrens. The trial court was correct.

Rule 404(b) provides that the evidence of other crimes, wrongs, or acts may be admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. In the present case, the theory of the state's case was that the appellant planned to kill the entire Warren family. The state developed its case to show the appellant's intent to kill Mr. and Mrs. Warren was precipitated because of his domestic troubles with the Warren's daughter, Pam. The record reveals appellant had married Pam and the relationship was beset with troubles related to his involvement in drugs. The state showed that Pam had divorced the appellant, and as a consequence, the appellant ended up terrorizing not only Pam but her sister, Cindy, and her parents, who had favored Pam's separation from the appellant. The state's evidence painted a picture of a series of terroristic acts and threats towards each member of the Warren family. Immediately after the appellant killed Mr. and Mrs. Warren and his attempt to do the same to Cindy, the appellant went to where Pam lived and forced her to go with him to the police station, where he shot a police officer. The testimony reveals he held Pam as a hostage and requested that Cindy Warren be brought to him. During this time, he had also shot Pam in the abdomen and told her that he had killed her parents. When he was arrested, the appellant possessed the same automatic gun used in his shooting of the Warrens and he wore the same army camouflage or combat clothing he had changed into before going to the Warrens to kill them.

These events following the killing of the Warrens were extremely probative in that they revealed not only that the appellant killed the Warrens but also that he had planned to kill the entire Warren family and that he induced the hostage situation in an effort to get both Pam and Cindy at the police station so he could consummate his plan. We also believe the events following the Warrens' killings were admissible because the entire sequence of events was such an inseparable whole that the state was entitled to prove the entire criminal episode. See Thomas v. State, 273 Ark. 50, 615 S.W.2d 361 (1981); Russell v. State, 262 Ark. 447, 559 S.W.2d 7 (1977); Harris v. State, 239 Ark. 771, 394 S.W.2d 135 (1965).

In his third point for reversal, appellant cites Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) and argues he was denied the assistance of a psychiatrist in preparing his defense. ¹ In Ake, the Court held that when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the state must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation and presentation of the defense. Appellant made no such demonstration in the present case.

At his first trial, appellant raised mental disease or defect as an affirmative defense, but he failed to do so at his second trial. On a number of occasions, the appellant, acting pro se, stated that he had no intention of raising a sanity defense but that he thought "duress is a form of mental illness." He later added, "Is not duress a mitigating circumstance, under the influence?" While the record reads in a somewhat disjointed fashion (largely due to the manner in which the appellant represented himself), it is clear that the appellant intended to raise his mental condition as a mitigating factor at the penalty phase of his trial; towards that end, he presented Dr. Oglesby, a psychiatrist with the Department of Correction, as a witness. ² Consistent with his earlier declaration that he did not intend to raise mental disease or defect as a defense during the guilt phase of his trial, he called Dr. Oglesby as a witness only at the penalty phase. From our careful examination of the record, we confirm the trial court's finding that the appellant failed to raise the sanity defense or to show that his sanity at the time of the offense was a significant factor at trial. Because appellant made no effort to offer a sanity defense at the guilt phase of the trial and he was permitted to offer considerable psychiatric testimony through Dr. Oglesby bearing...