Rector v. State, CR

• Decision Date: 17 October 1983
• Docket Number: No. CR,CR
• Citation: 280 Ark. 385,659 S.W.2d 168
• Parties: Ricky Ray RECTOR, Appellant, v. STATE of Arkansas, Appellee. 83-39.
• Court: Arkansas Supreme Court

Page 168

659 S.W.2d 168

280 Ark. 385

Ricky Ray RECTOR, Appellant, v. STATE of Arkansas, Appellee.

No. CR 83-39.

Supreme Court of Arkansas.

Oct. 17, 1983.

Rehearing Denied Nov. 21, 1983.

Stripling & Morgan by Dan Stripling, Clinton, and Fuchs & Villines by M. Watson Villines, II, Conway, for appellant.

Steve Clark, Atty. Gen., by Alice Ann Burns, Deputy Atty. Gen., Little Rock, for appellee.

GEORGE ROSE SMITH, Justice.

Ricky Ray Rector was charged with capital murder in the shooting of Bob Martin, a Conway city policeman acting in the line of duty. Ark.Stat.Ann. § 41-1501(1)(b) (Repl.1977). In a bifurcated trial the jury returned a verdict of guilty and imposed the death penalty. Nine separate points for reversal are argued. Counsel state with commendable candor that several other possible points are not being urged, for want of merit. We affirm the judgment.

The first stage of the trial was brief, the facts being essentially undisputed. On March 22, 1981, Rector, age 28, shot and killed Arthur Criswell at a restaurant in Conway and wounded two other men. For two days the police searched for Rector. On the afternoon of March 24 Officer Martin, in uniform, went to the home of Rector's mother, in Conway. While the officer was talking to Rector's mother, sister, and nephew, Rector entered the back of the house and came into the living room. Rector and the officer knew each other and may have exchanged a few words of greeting. Within a few minutes Rector, who had not joined in the conversation, drew a pistol and shot Officer Martin twice. Rector left by the back door and said to his nephew's wife, whom he met crossing the yard: "I just shot that cop." A few moments later Rector attempted suicide by shooting himself in the forehead, the bullet entering the front part of his brain. That evening the wound was surgically cleaned and closed.

Among the points for reversal, we first consider the argument that death-qualified juries are unconstitutional. That question was left open in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), because the Court found the evidence too tentative and fragmentary to support a firm conclusion. We do not take that disposition of the issue to carry an implication that the Court would necessarily have disapproved death-qualified juries if the proof had been complete.

Since Witherspoon the state courts have uniformly upheld the validity of death-qualified juries. (The force of our own cases is conceded by the appellant, who asks that they be overruled.) The federal courts of appeal, however, are not in agreement. In the Seventh Circuit the court left the question open in 1976, finding the proof still inconclusive. United States ex rel. Clark v. Fike, 538 F.2d 750 (7th Cir.1976). In the Fifth Circuit the court assumed, without deciding, that death-qualified jurors are prone to convict, but the court nevertheless upheld the death-qualified jury. Its reasoning was in part that a juror implacably opposed to capital punishment might choose to hang the jury even in the face of overwhelming proof, with the possibility that a succession of such mistrials could defeat the State's attempts to enforce its death penalty. Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir.1978), followed with further discussion in Smith v. Balkcom, 660 F.2d 573 (5th Cir.1981).

In our circuit, the Eighth, the court has apparently interpreted Witherspoon to mean that if death-qualified juries had then been shown to favor the prosecution, the Supreme Court would have prohibited such juries. Grigsby v. Mabry, 637 F.2d 525 (8th Cir.1980). We so understand the Grigsby opinion simply because the majority, without discussing the issue on its merits, flatly stated that if it can be shown that death-qualified juries are more likely to convict, "Grigsby has made a case that his constitutional rights have been violated and he would be entitled to a new trial." The case was accordingly remanded to the Arkansas district court to allow it to determine as a question of fact whether death-qualified juries are prone to convict.

The Grigsby opinion, remanding the case, was delivered on November 18, 1980. The district court completed its evidentiary hearing in July, 1981. The district court then delayed the case for more than two years, with Chief Judge Eisele finally issuing a 91-page opinion on August 5, 1983, declaring death-qualified juries to be unconstitutional. Grigsby v. Mabry, 569 F.Supp. 1273 (E.D.Ark.1983). Since that opinion is the first one not only examining the factual issues in detail but also banning the death-qualified jury, we have thought it best to re-examine the issue in the light of that opinion.

At the outset we must clear the air by commenting on a ten-page analysis in the district court's Grigsby opinion, purportedly tracing the history of jury selection in capital cases in Arkansas and criticizing this court for its recent decisions in that field of law. Pp. 1313-1318. The district judge evolved a theory (based on our decision in Atkins v. State, 16 Ark. 568 [1855], and on an 1869 statute permitting a challenge for implied bias if a juror had such conscientious opinions as would preclude him from finding the defendant guilty, Ark.Stat.Ann. § 43-1920 [Repl.1977] ) that the Arkansas law originally permitted a challenge for cause only if the venireman could not find the defendant guilty, regardless of the venireman's attitude about the death penalty. The opinion, noting that our later cases permit the challenge if the venireman cannot impose the death penalty, then puts the question: "When and how did the Arkansas law change?"

The court answers its own question by concluding that between 1968 and 1970, and in response to the ruling in Witherspoon:

[The Arkansas Supreme Court] decided to no longer adhere to the limitation and exclusion of jurors as provided by the statute. Instead, it decided that if a juror could never vote to impose the death penalty, he could be excluded altogether. No inquiry apparently had to be made as to whether the juror was nevertheless capable of rendering a fair and impartial verdict upon the guilt or innocence of the defendant....

....

The bottom line of this analysis is that prior to Witherspoon, Arkansas focused on the most traditional and accepted of voir dire inquiries: whether a prospective juror's scruples would preclude him from rendering a verdict of guilty and the court relied directly on the legislatively mandated language. After Witherspoon, the court no longer relied on the exclusion statute but simply adopted Witherspoon as the predicate for a judicially established Arkansas rule that allowed the exclusion of prospective jurors from the guilt-innocence phase on the ground that they could never impose the death penalty if called upon to assess a penalty. [District Court's italics.]

There is more to the same effect.

The district judge's decidedly critical analysis of our cases would be disturbing if it were not so readily apparent that the analysis and criticism are totally and demonstrably wrong. Our decision in Atkins did not even remotely contemplate that a jury might first find a defendant guilty of a capital offense and then select or reject the death penalty. The simple fact, evidently unknown to the district court in Grigsby, is that from statehood until 1915 the death penalty was mandatory in all capital cases, the jury taking no part in fixing the penalty. Rev.Stat., ch. 44, div. 3, art. 1, § 7 (1837). That was of course true in 1869, when the implied bias provision was enacted. As reflected by scores of appellate records in the state's archives, the usual guilty verdict was: "We, the jury, find the defendant guilty of first-degree murder, as charged in the indictment." That ended the trial, with the jury being discharged and the court entering the judgment as fixed by law.

Thus this court did not change its position in response to Witherspoon. We changed a half century earlier, to give effect to the 1915 statute which for the first time recognized life imprisonment as a permissible sentence in Arkansas and made it an alternative punishment in all capital cases. Ark.Stat.Ann. § 43-2153. All this was fully explained almost twenty years before Witherspoon when we said in Needham v. State, 215 Ark. 935, 224 S.W.2d 785 (1949):

During the selection of the jury the prosecuting attorney was permitted to ask each juror if he had any conscientious scruples against the imposition of the death penalty. The statute defines implied bias as including such conscientious opinions as would preclude the juror from finding the defendant guilty of an offense punishable by death. Ark.Stats. (1947), § 43-1920. It is argued that the State should have been allowed to inquire only whether the juror's conscience would preclude his finding the defendant guilty, thereby permitting the service of jurors who would vote for a verdict of guilty but approve only the alternative penalty of life imprisonment. The history of our statutes rebuts this suggestion. When the statute defining implied bias was enacted the death penalty was mandatory; so it was then sufficient for the legislature to refer merely to a finding of guilt, the punishment following as a matter of course. Not until 1915 did the legislature give the jury the option of imposing life sentences in capital cases. Ibid., § 43-2153. The legislature evidently meant for the jury to exercise its discretion in selecting the punishment, but it is obvious that a juror can exercise no discretion if his conscience does not permit him to vote for the death penalty in any case. The statutory history in Idaho has been identical with our own, and there it is held proper for the State to inquire whether a juror has scruples against capital punishment. State v. Wilson, 41 Idaho 616, 243 P. 359. Among many other cases approving this inquiry when the jury in its discretion may impose a life sentence...