O'Rourke v. State, CR

• Decision Date: 14 March 1988
• Docket Number: No. CR,CR
• Citation: 295 Ark. 57,746 S.W.2d 52
• Parties: Michael O'ROURKE, Appellant, v. STATE of Arkansas, Appellee. 87-17.
• Court: Arkansas Supreme Court

Page 52

746 S.W.2d 52

295 Ark. 57

Michael O'ROURKE, Appellant, v. STATE of Arkansas, Appellee.

No. CR 87-17.

Supreme Court of Arkansas.

March 14, 1988.

Ernie Witt, Paris, for appellant.

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

GLAZE, Justice.

Appellant was convicted of the capital murder of his parents, Beulah and Francis O'Rourke, which occurred in July, 1983. The trial was held in Yell County, Dardanelle District, and the jury imposed the death sentence. On appeal, appellant argues the trial court erred (1) in denying the appellant's motion for a change of venue; (2) in sentencing the appellant; and (3) in instructing the jury of pecuniary gain as an aggravating circumstance. Appellant also claims there was no substantial evidence to support the jury's finding of no mitigating factors in the sentencing phase. Having reviewed these points of error along with other objections as required by Rule 36.24, A.R.Cr.P. and Ark.Sup.Ct.R. 11(f), we find no reason to reverse and, therefore affirm the appellant's conviction.

Concerning his venue argument, appellant moved for a change of venue under Ark.Code Ann. §§ 16-88-201 and -204 (1987), stating he could not receive a fair and impartial trial in either district of the county. To support his motion, he included the affidavits of Tommie Foster, Evelene Miller, and Connie Tillman, who were registered and qualified electors of the Dardanelle District of Yell County. ¹

In order to prevail on his motion, the appellant, under § 16-88-201, was required to show that the minds of the inhabitants of the county in which the cause is pending are so prejudiced against the defendant that a fair and impartial trial cannot be had in that county. See also Richardson v. State, 292 Ark. 140, 728 S.W.2d 189 (1987); Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986). The affidavits submitted by the appellant failed to show such prejudice for two reasons: (1) the three affidavits failed to allege prejudice was countywide, and instead stated that a fair trial could not be had in the Dardanelle district; and (2) while the affiants in their affidavits alleged prejudice in the Dardanelle district, their later testimony belied their earlier allegations of prejudice. For instance, Foster testified that she did not read the affidavit she previously had signed, and Miller and Tillman both testified that they did not have any opinion as to the prejudice in the community as a whole. In addition to the deficiencies found in appellant's proof offered in support of his motion, the state produced several witnesses who testified that the appellant could get a fair trial in Yell County.

The appellant also claims the seating of the jury itself illustrated prejudice against the appellant. Appellant points out that seventeen out of forty-nine prospective jurors (or approximately 34 percent) were excused by the court, because they had formed some opinion of the guilt or innocence of the appellant. However, appellant cites no cases, and we know of none, that have held that actual bias is said to exist in the community when a certain number of jurors are excused. While the judge found it necessary to excuse some of the prospective jurors, a jury of twelve was seated, and the jurors stated that they had not formed an opinion about the appellant's guilt or innocence and would make their decisions based only on the evidence heard in the trial.

As we previously have stated, there can be no error in the denial of a change of venue if an examination of the jury selection shows that an impartial jury was selected and that each juror stated he or she could give the defendant a fair trial and follow the instructions of the court. Berry, 290 Ark. 223, 718 S.W.2d 447. We conclude that the record before us reflects that a fair and impartial jury was seated by the trial judge, and the judge did not abuse his discretion in denying appellant's motion. Richardson, 292 Ark. at 141-42, 728 S.W.2d at 191.

Appellant next argues that the jury's finding that no mitigating factors existed was not supported by the evidence and that the jury should have at least found that the crime was committed while he was under extreme mental or emotional disturbance. We cannot agree. In Miller v. State, 269 Ark. 341, 605 S.W.2d 430 (1980), we held that it is a matter of judgment whether the facts support the jury's findings as to the issues of aggravating and mitigating circumstances, but we will not substitute our judgment for that of the jury that heard the evidence if there is a reasonable and understandable application of the facts to the statutory requirements. In applying that rule to the facts here, we discover at trial the appellant and the state presented conflicting expert testimony concerning appellant's mental state. Dr. Stevens, a clinical psychologist, opined that appellant suffered an extreme mental disturbance at the time the crime was committed, but the state's psychiatrist, Dr. Kaczenski, testified that, while appellant may have suffered from a severe personality disorder when the crime was committed, appellant was not out of touch with reality and knew the difference between right and wrong. In hearing this conflicting testimony, the jurors could, and obviously did, reasonably believe that appellant was capable of appreciating the wrongfulness of his conduct and was capable of conforming that conduct to the requirements of the law. Id. at 357-58, 605 S.W.2d at 440.

Appellant further contends the trial court erred in denying appellant's motion to postpone the sentencing proceeding and to order an evaluation of appellant's fitness to be sentenced. This contention has no merit.

Appellant, on three occasions, had been committed to the State Hospital for evaluation and on the first two occasions, he was found unfit to stand trial. On the third evaluation, he had recovered and was determined fit to proceed to trial. After having been found guilty of murder and having received the verdict which recommended the death penalty, the appellant requested that the trial court make another determination as to appellant's fitness to proceed with sentencing, but the court refused. Appellant argues that, under the mandatory language of Ark.Code Ann. § 16-86-111 (1987), the trial court was required to postpone sentencing and to commit the appellant for observation and testing upon the appellant's counsel's request for evaluation alleging that appellant was incapable of understanding the proceedings. Section 16-86-111 superseded Ark.Stat.Ann. § 43-1303 (Repl.1977), but the terms and requirements in both statutes are almost identical. In sum, both provisions provide that a hearing shall be held in the manner provided by law in any case in which the insanity of the defendant is alleged as a ground for postponing or not carrying out the execution of any sentence imposed as a part of the defendant's conviction.

We construed § 43-1303 in our earlier holding...