Pruett v. State, CR

• Decision Date: 30 April 1984
• Docket Number: No. CR,CR
• Citation: 669 S.W.2d 186,282 Ark. 304
• Parties: Marion Albert PRUETT, Appellant, v. STATE of Arkansas, Appellee. 83-58.
• Court: Arkansas Supreme Court

Page 186

669 S.W.2d 186

282 Ark. 304

Marion Albert PRUETT, Appellant, v. STATE of Arkansas, Appellee.

No. CR 83-58.

Supreme Court of Arkansas.

April 30, 1984.

Rehearing Denied June 18, 1984.

John Settle and Garner Taylor, Jr., Fort Smith, for appellant.

Steve Clark, Atty. Gen. by Leslie M. Powell, Asst. Atty. Gen., Little Rock, for appellee.

PURTLE, Justice.

This case comes to us on appeal from the Crawford County Circuit Court after a change of venue from Sebastian County. The appellant was tried and convicted of capital murder and sentenced to death. For reversal he argues 21 separate points. However, we will consolidate the points and set them out in the body of this opinion. We do not find prejudicial error in any of the points argued.

The first seven points argued challenge the trial court's failure to grant a second change of venue and the selection of and failure to sequester the jury. The state did not oppose appellant's first motion for a change of venue. The court changed the site of the trial from Sebastian County to Crawford County. The change of venue was granted because of the extensive publicity surrounding this case. Voir dire of the jury commenced in Crawford County on August 27, 1982. Appellant's motion to sequester the jurors was denied. The trial court admonished the entire jury panel not to read or listen to or observe any news account of this case. The first panel was exhausted after five days. A supplemental panel was summoned and the appellant promptly moved to quash the supplemental panel because it had not received the admonition given to the original panel. The trial court denied the motion after a hearing. Appellant then moved for another change of venue and a continuance. These motions were denied by the court. After the appellant exhausted his peremptory challenges the jury was completed. The court overruled appellant's second motions to quash the jury panel and for a change of venue. The court rejected appellant's request to present evidence in support of these motions. It is undisputed that the appellant was forced to accept jurors he would have peremptorily challenged had he not exhausted those challenges. It is likewise undisputed that publicity was great in Crawford County as well as Sebastian County. However, the jury finally selected was qualified within the meaning of the Witherspoon doctrine. The purpose of a change of venue and voir dire of the jury is to insure that an accused receives a trial by a fair and impartial jury.

The first 11 jurors were selected from a 65 member panel. Eight members of the supplemental panel were examined before the twelfth juror was seated. The alternate juror selected did not participate in the deliberations. Six jurors were excused for cause because they would automatically vote for the death penalty upon a finding of guilt on a capital murder charge. The court excused 26 jurors because of preconceived opinions of guilt or their knowledge about the case. Several were excused because of their relationship to the family of the victim or personal reasons. The number of jurors excused for cause by the trial court indicated that much publicity surrounded this case and that the court meticulously tried to select a fair and impartial jury. Of the 12 members who served on the jury only three had prior knowledge of the facts of the case. The court utilized individually sequestered voir dire in the jury selection process. This was another precaution which the trial court used to insure proper selection of a jury. The court went so far as to allow the striking of jurors who were already seated.

We have many times held that a change of venue lies within the discretion of the trial court. When it is determined that an accused can receive a fair and impartial jury trial the site of the trial is immaterial. Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982). Also, the decision whether to sequester the jury lies within the discretion of the trial court and the burden of proving that appellant did not receive a fair and impartial trial, because of the failure to sequester the jury, is upon the appellant. Ford v. State, 276 Ark. 98, 633 S.W.2d 3 (1982). We recognize that the bare statement of a prospective juror that he can give the accused a fair and impartial trial is subject to question. Haynes v. State, 270 Ark. 685, 606 S.W.2d 563 (1980).

The appellant's eighth assignment of error is the court's failure to grant a continuance. When the appellant was arraigned on June 14, 1982, he chose to represent himself. However, the court appointed counsel to stand by and advise the appellant. Appellant objected to the trial date set, August 30, 1982, contending that he needed to work on the appeal from his death sentence in Mississippi. Also, appellant's appointed counsel was then working on an appeal in another death case in that area. From the record we know that appellant's attorney, a public defender, is swamped with work. However, we cannot appreciably slow the flow of the criminal justice system to accommodate overworked attorneys or judges. Another reason the appellant requested a continuance was that he was unable to discover the name of a physician whom he wanted to testify until after voir dire of the jury was completed. The primary reason stated in the motion for continuance was that, because of the foregoing facts, neither the appellant nor his counsel could be prepared to try the case on August 30, 1982. Perhaps it would have been better that the trial be continued for the reasons stated in the motions and due to the media attention given the case. However, such matters are addressed to the sound discretion of the trial court and we do not reverse unless that discretion is abused. Prokos v. State, 266 Ark. 50, 582 S.W.2d 36 (1979). The court attempted to cooperate in obtaining the presence of the witness; however, the witness was unable to appear at the time of the trial. The testimony of this witness was presented to the jury through statements of appellant's counsel. Therefore, no prejudice resulted.

The appellant challenges the death qualification of prospective jurors. We need not tarry on this argument as it was clearly answered in the case of Rector v. State, 280 Ark. 385, 659 S.W.2d 168 (1983).

Appellant's arguments 10 through 12 challenge the death penalty statute in Arkansas. The appellant filed a motion to quash the information, reduce the charge and reduce the penalty. All three motions were denied by the court. The argument that electrocution is cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution was rejected in Swindler v. State, 267 Ark. 418, 592 S.W.2d 91 (1979). The argument that the overlapping provisions of Ark.Stat.Ann. § 41-1501 (Repl.1977) and Ark.Stat.Ann. § 41-1502 are impermissibly vague was disposed of in Ford v. State, 276 Ark. 98, 633 S.W.2d 3 (1982). The court was correct in overruling these motions.

Appellant next argues that the trial court erred in refusing to suppress appellant's statement or to delete portions of it. A motion to suppress the statement made by the appellant during a press conference in Mississippi on October 28, 1981, was denied. During the televised press conference he referred to himself as a "mad dog killer." This news conference was at the appellant's request after he stated to the officers that he knew more than they about his rights. In any event the news conference statement of October 28 was not introduced. An officer from Ft. Smith traveled to Mississippi on November 8, 1981, and secured a statement from the appellant. The officer first gave him his Miranda warnings. This statement was edited and introduced into the record. Appellant correctly argued that a custodial statement is presumed involuntary. Freeman v. State, 258 Ark. 617, 527 S.W.2d 909 (1975). There was conflicting testimony concerning the voluntariness of the appellant's custodial statement. The trial court found that the statement was voluntary and we will not set aside such a finding unless it is clearly against the preponderance of the evidence. Degler v. State, 257 Ark. 388, 517 S.W.2d 515 (1974).

It is argued that the court erred in refusing to suppress a firearm and bullets which were obtained by illegal search. The facts surrounding the search are as follows: When appellant was initially stopped for a speeding violation, he was unable to produce a driving license. He was then requested to show vehicle registration. He opened the door on the passenger side and looked into the glove compartment. An officer observed drug paraphernalia in the open glove compartment. He also observed a strap under the front seat which he recognized to be a part of a gun holster. The appellant was arrested for speeding, driving without a license, and possession of drug paraphernalia. The gun, which was in the holster, was a clear and present danger to the officers under the circumstances of this case. The drug paraphernalia was properly seized as it was clearly before the eyes of the officer. Gatlin v. State, 262 Ark. 485, 559 S.W.2d 12 (1977). We think the gun was within the "plain view" doctrine as enunciated in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) and Gatlin v. State, supra. Since we hold that the weapon and bullets were legally obtained it follows that the ballistics tests were proper evidence.

The appellant argues that the trial court improperly refused to direct a verdict of acquittal. This motion amounted to a challenge of the sufficiency of the evidence. In view of our holdings concerning admission of evidence earlier in this opinion we think this argument does not have merit.

Appellant argues that the court erred in allowing the state to question him on cross-examination about details of his prior convictions. By a motion in limine appellant sought to curtail the cross-examination on the grounds that it was a conviction...