Ruiz v. State

• Decision Date: 12 June 1989
• Docket Number: No. CR,CR
• Citation: 772 S.W.2d 297,299 Ark. 144
• Parties: Paul RUIZ and Earl Van Denton, Appellants, v. STATE of Arkansas, Appellee. 87-174.
• Court: Arkansas Supreme Court

Page 297

772 S.W.2d 297

299 Ark. 144

Paul RUIZ and Earl Van Denton, Appellants, v. STATE of Arkansas, Appellee.

No. CR 87-174.

Supreme Court of Arkansas.

June 12, 1989.

[299 Ark. 147] Robert E. [299 Ark. 148] Irwin, [299 Ark. 147] Mark S. Cambiano, Russellville, for appellants.

Clint Miller, Asst. Atty. Gen., Little Rock, for appellee.

HAYS, Justice.

This capital murder case has followed a long and tortuous path. Appellants were charged with the robbery, kidnapping and murder of Marvin Ritchie and Opal James. They were twice found guilty and given death sentences and in the latest trial, involving only the issue of punishment, death sentences were again imposed. Those proceedings

have been reviewed three times by this court, twice by the Court of Appeals for the Eighth Circuit, and once by the United States Supreme Court. One conclusion which might well be drawn from the foregoing litigation is that appellants' second trial was error free and our affirmance of those convictions and sentences in 1981 is now effectively reinstated. The state urges us to eschew that course, however, and to address appellants' current appeal from the resentencing trial on the merits. We concur in that view

Some overview of the prior proceedings is essential to an understanding of the arguments. Appellants were serving life sentences in the Oklahoma State Prison at McAllister--Ruiz for armed robbery, Denton for murder. On June 23, 1977, they disappeared from a work crew. On the morning of the 29th they were seen near the town of Magazine in Logan County, Arkansas, driving a car with Louisiana license plates.

When the marshal of Magazine, Marvin Ritchie, and two employees of the Corp of Engineers, David Small and Opal James, who were working in Logan County, were found to be missing, a search party was organized and that afternoon two of the men were found handcuffed together in the trunk of Ritchie's car. Marvin Ritchie was dead and David Small was critically wounded. Ritchie had been shot in the back of the head and Small through the chest. Small survived to provide essential testimony against the appellants at all three trials. Two days later, the body of Opal James was found in a remote section of Montgomery County.

Appellants were tried and convicted in Logan County and sentences of death were imposed. Those convictions were appealed and the judgment was reversed upon a holding that the [299 Ark. 149] trial court erred in denying a motion for a change of venue and in seating a jury incapable of rendering a fair and impartial verdict. Ruiz and Denton v. State, 265 Ark. 875, 582 S.W.2d 915 (1979).

Appellants were tried anew, this time in Conway County, and sentences of death were again imposed. In the ensuing appeal the judgment was affirmed. Ruiz and Denton v. State, 273 Ark. 94, 617 S.W.2d 6, cert. denied, 454 U.S. 1093, 102 S.Ct. 659, 70 L.Ed.2d 631 (1981). State post conviction remedies were pursued and exhausted. Ruiz and Denton v. State, 275 Ark. 410, 630 S.W.2d 44 (1982), cert. denied, 459 U.S. 882, 103 S.Ct. 181, 74 L.Ed.2d 148 (1982).

Appellants next sought habeas corpus relief in the United States District Court for the Eastern District of Arkansas. That request was denied and appellants appealed to the Court of Appeals for the Eighth Circuit, where the judgment of the District Court was reversed on the grounds that the case was governed by Grigsby v. Mabry, 758 F.2d 226 (8th Cir.1985), holding that so-called "death-qualified" juries, being conviction prone, are unconstitutional. Ruiz v. Lockhart, 754 F.2d 254 (8th Cir.1985). The United States Supreme Court granted certiorari and vacated the decision of the Court of Appeals in the light of Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986), which upheld the constitutionality of "death-qualified" juries, reversing Grigsby. See Lockhart v. Ruiz, 476 U.S. 1112, 106 S.Ct. 1964, 90 L.Ed.2d 649 (1986). The case was remanded for consideration of issues which had been reserved by the Court of Appeals and on November 20, 1986, that court again reversed the District Court, 806 F.2d 158 (1986), this time on the premise that robbery was used both as an element of the crime of capital murder and as one of the aggravating circumstances found by the jury to justify the death penalty, which the court had, in Collins v. Lockhart, 754 F.2d 258 (8th Cir.) [cert. denied, 474 U.S. 1013, 106 S.Ct. 546, 88 L.Ed.2d 475 (1985) ], held to be an impermissible duplication, resulting in what has been referred to as "double counting." The duplication issue had been preserved by appellants, but not reached by the Court of Appeals in view of its reversal on the Grigsby argument. The court upheld the validity of Ruiz and Denton's convictions, but vacated the death sentences because of the use of pecuniary gain as an aggravating circumstance where robbery was an element of the [299 Ark. 150] underlying

capital crime. ¹ The state was given a reasonable time to either retry the issue of punishment or reduce appellants' sentences to life without parole. The state proceeded to retry the appellants without the use of pecuniary gain as an aggravating circumstance and again the jury imposed a sentence of death, resulting in the present appeal. Appellants assert nineteen errors by the trial court. We find no merit in the arguments for reversal

I

The Resentencing Trial of the Appellants Violated the Ex

Post Facto Provisions of the United States and

Arkansas Constitutions and Denied

Appellants Due Process and

Equal Protection of the Laws.

The statutory authority for resentencing trials in capital cases is Act 546 of 1983, codified as Ark.Code Ann. § 5-4-616 (1987). The act became effective on March 19, 1983, but purports to apply to any defendant sentenced to death after January 1, 1974. Appellants point out that the murders of Opal James and Marvin Ritchie occurred on or about June 29, 1977, and thus, they contend, Act 546 operates as an ex post facto law in violation of federal and state constitutions. We disagree.

We note that the decision of the Court of Appeals in Ruiz v. Lockhart, 806 F.2d 158 (8th Cir.1986), upheld the validity of the appellants' convictions for capital murder, and specifically directed that the state have the option to either reduce the sentences to life without parole or retry the question of punishment. The state chose to retry the appellants.

Appellants have cited a number of our cases stating that sentencing provisions are substantive rather than procedural and that the sentencing provisions in effect at the time an offense occurs govern sentencing. Jennings v. State, 276 Ark. 217, 633 S.W.2d 373 (1982); Easley v. State, 274 Ark. 215, 623 S.W.2d 189 (1981); Culpepper v. State, 268 Ark. 263, 595 S.W.2d 220 (1980). However, those cases, and others like them, deal with attempts to apply a harsher sentence than was provided by law at [299 Ark. 151] the time an offense was committed, rather than with changes in sentencing procedures. Act 546 in no way enlarges the punishment to which appellants were subjected, it simply permits that part of the trial which was not tainted by error, to survive, limiting the retrial to the issue of punishment. That change in the law is, we think, procedural rather than substantive. Moreover, it is enough to note that appellant's identical argument was advanced and rejected in Pickens v. State, 292 Ark. 362, 730 S.W.2d 230, 235 cert. denied, 484 U.S. 917, 108 S.Ct. 269, 98 L.Ed.2d 226 (1987). We reaffirm that position.

II

The Trial Court Erred in Failing to Grant Appellants a

Severance of their Capital Murder Resentencing Trials.

Appellants submit that their motion to sever their trials was waived by them in reliance upon an assurance by the trial judge that if a conflict developed between defendants in the selection of jurors, a severance "would be mandated." Appellants urge that in spite of a number of disagreements between them over the seating of certain jurors, the trial judge reversed himself and denied severance. They maintain they should not be penalized for relying on the court's ruling.

We do not interpret the record in quite the same way. It is clear that appellants waived their motion for severance and no condition was tied to the waiver. Counsel for Paul Ruiz then argued that because the state would benefit by one trial rather than two, the defendants should each be allowed twelve peremptory challenges, rather than twelve between them, since they might disagree on which jurors would be good for the defense. That proposal was rejected, prompting defense counsel to ask if a conflict

developed would a severance be granted. The trial court's response was, "that's the law."

We do not regard that exchange as a binding commitment by the trial judge to order a severance merely upon a purported disagreement between defense counsel over whether to strike or accept a prospective juror. We believe he was simply alluding generally to the law as reflected in A.R.Cr.P. Rule 22.3(b)(iii) and in the guidelines set out in McDaniel and Gookin v. State, 278 Ark. 631, 648 S.W.2d 57 (1983), indicating that the [299 Ark. 152] trial court should continue to be sensitive to the advisability of a severance as the trial evolves. Severances are to be determined by the trial court on a case by case basis in the light of all attendant circumstances. It is an exercise of judicial discretion. Spillers v. State, 268 Ark. 217, 595 S.W.2d 650 (1980). A.R.Cr.P. Rule 22.3. We have held that when more than one defendant is being tried for capital murder, the number of peremptory challenges allotted to a side remains at twelve. Wilkins v. State, 292 Ark. 596, 731 S.W.2d 775 (1987). Thus there was no error in refusing to enlarge the number of peremptory challenges nor any abuse of discretion in denying severance on that ground. Hallman and Martin v. State, 264 Ark. 900, 575 S.W.2d 688 (1979).

III

Arkansas Code Annotated § 5-10-101 (1987)...