Ruiz v. State, CR78-193

Decision Date04 June 1979
Docket NumberNo. CR78-193,CR78-193
Citation582 S.W.2d 915,265 Ark. 875
PartiesPaul RUIZ and Earl Van Denton, Appellant, v. STATE of Arkansas, Appellees.
CourtArkansas Supreme Court

Donald R. Langston, Robert S. Blatt, Fort Smith, for appellants.

Steve Clark, Atty. Gen. by Catherine Anderson, Asst. Atty. Gen., Little Rock, for appellee.

PURTLE, Justice.

On November 18, 1977, the appellants, Paul Ruiz and Earl Van Denton, were charged by information with the offense of capital murder of Marvin Ritchie and Opal James and that they also robbed and kidnapped the victims. The trial commenced on April 17, 1978, and after four days of voir dire examination 13 jurors were selected. The trial lasted until April 27, 1978, at which time the jury found the appellants guilty of capital murder and sentenced them to death by electrocution.

Appellants had moved for a change of venue prior to the trial alleging that pretrial publicity and ill feelings toward them made it impossible for them to receive a fair and impartial trial in Logan County. A two-day hearing was held on this motion after which it was overruled by the trial court. The motion for change of venue was renewed several times up through the actual trial of the case.

Appellants argue 16 points for reversal. Many of the points are rather long and will be condensed to state the essential error claimed in each point. The points are:

I.

THE TRIAL COURT ERRED IN DENYING A CHANGE OF VENUE.

II.

THE TRIAL COURT ERRED IN DENYING A MOTION TO QUASH A SUBPOENA DUCES TECUM FOR THE ASSOCIATED PRESS.

III.

THE COURT ERRED IN OVERRULING APPELLANTS' OBJECTION TO JURORS FOR CAUSE.

IV.

THE COURT ERRED IN EXCUSING A JUROR WHO OPPOSED THE DEATH PENALTY.

V.

THE COURT ERRED IN REFUSING TO REDUCE THE CHARGE.

VI.

THE COURT ERRED IN NOT HOLDING THE DEATH PENALTY, BY ELECTROCUTION, AS CRUEL AND UNUSUAL PUNISHMENT.

VII.

THE COURT ERRED IN REFUSING TO ORDER PAYMENT OF FEES AND EXPENSES OF EXPERT WITNESSES FOR APPELLANTS.

VIII.

THE COURT ERRED IN ADMITTING CERTAIN EXHIBITS INTO EVIDENCE.

IX.

THE COURT ERRED IN FAILING TO DIRECT A VERDICT FOR THE APPELLANTS.

X.

THE COURT ERRED IN OVERRULING APPELLANTS' OBJECTION TO INSTRUCTION NO. 7A.

XI.

THE COURT ERRED IN OVERRULING APPELLANTS' OBJECTION TO INSTRUCTION NOS. 8 AND 9.

XII.

THE COURT ERRED IN OVERRULING APPELLANTS' OBJECTION TO INSTRUCTION NO. 10.

XIII.

THE COURT ERRED IN OVERRULING APPELLANTS' OBJECTION TO THE STATE'S CLOSING ARGUMENT DURING THE PENALTY PHASE OF THE TRIAL.

XIV.

THE COURT ERRED IN REFUSING TO GIVE APPELLANTS' OFFERED INSTRUCTION NO. 1.

XV.

THE COURT ERRED IN OVERRULING APPELLANTS' OBJECTION TO THE INSTRUCTION WHICH PERMITTED THE JURY TO FIND THE APPELLANTS COMMITTED THE CAPITAL MURDER FOR PECUNIARY GAIN.

XVI.

THE COURT ERRED IN REFUSING TO GIVE APPELLANTS' REQUESTED INSTRUCTION ON MITIGATING CIRCUMSTANCES.

Each of appellants' contentions will be taken up separately although more than one may be considered during a particular phase of this opinion.

I.

The United States has survived as a nation through the centuries primarily because it is a nation of laws. From the beginning we have recognized that in order to maintain law and order we must be guided by principles of law which are expressly stated. The First Amendment to the Constitution of the United States requires that Congress shall make no laws prohibiting the exercise of free speech and free press. The Sixth Amendment requires that in all criminal prosecutions the accused shall have the right to an "impartial" jury trial. The Fourteenth Amendment to the United States Constitution states:

. . . No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Art. 2, § 6, of the Constitution of Arkansas states that the liberty of the press shall forever remain inviolate and that the free communication of thoughts and opinion is one of the individual rights of man and further that all persons may freely write and publish their sentiments on all subjects, being responsible for the abuse of such right. Art. 2, § 8, provides that no person shall be deprived of life, liberty, or property, without Due process of law. Art. 2, § 10, states:

In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by impartial jury of the county in which the crime shall have been committed; provided that the venue may be changed to any other county of the judicial district in which the indictment is found, upon the application of the accused, in such manner as now is, or may be, prescribed by law; . . .

In order that these principles may be maintained as intended from their inception it is necessary that the application of these provisions, and the laws pursuant thereto, be pursued in a manner which shows no partiality to any person regardless of the nature of the offense or his station in life. It is not within the province of this Court to decide whether there should be exceptions to the constitutional requirements set out above. Therefore, regardless of the appearance of the guilt or innocence of an accused, we must abide by the spirit and intent of these principles of law. Neither this Court nor any other court is permitted to abridge the guarantees set out in the constitution to the citizens of the State of Arkansas and the United States. Even in an unpopular situation we must adhere strictly to the constitution and laws and not pay mere lip service to these guiding and controlling principles. It is our duty and responsibility to the people of this state and nation to apply the laws with an even hand and see to it that the rights of all citizens are fully protected. We cannot give way to expediency in order to achieve what we perceive as justice if in the process we deprive any individual of his guaranteed rights. With this understanding we will continue the examination of the trial record in this case to see whether or not the appellants have been deprived of any rights guaranteed to them by the Constitution, or laws, of the State of Arkansas or the United States.

A hearing was held on November 17 and 18, 1977, on the motion for a change of venue. The following evidence was presented:

1. Affidavits of 7 citizens of Logan County stating the appellants could not receive a fair trial in the county.

2. Testimony of these same witnesses to the same effect.

3. Hundreds of newspaper articles concerning the case printed in the Southwest Times Record, Arkansas Gazette, Arkansas Democrat and the Booneville Democrat. All of these publications had extensive circulation in Logan County.

4. News reel coverages from KFSM-TV and KFPW-TV, Fort Smith, KARK-TV, KTHV and KATV, Little Rock, plus many written scripts of telecast.

5. Radio logs showing coverage by KCCL, Paris, KARV, Russellville, KWHN, KFPW, KTCS, KFSA, Fort Smith.

6. November, 1977, issue of Inside Detective Magazine.

7. Testimony of 10 witnesses for the state who stated that in their opinion the appellants could receive a fair trial in Logan County.

Perhaps no episode in the history of Arkansas received more publicity than the one involved in this case. The Associated Press released between 250 and 300 stories which went out to more than 100 newspapers. Practically all of the media stories included information that the appellants were escapees from the Oklahoma State Penitentiary at McAlester; that they were suspected of killing two people in Louisiana; that they had probably killed a taxi driver in Oklahoma; and that they were captured in Portland, Oregon. No person testified either at the change of venue hearing or during the jury selection that he had no knowledge concerning at least part of the alleged crimes attributed to the appellants. With one possible exception, no one had heard anyone state he believed the appellants were not guilty. As will be shown later, all of the jury panel was aware of most of this information. Much of the evidence received at the motion for a change of venue was in the form of news stories, some of which covered the entire front page of a paper, and were of an inflammatory nature. The various media articles described the alleged escape, homicide, man hunt, apprehension, and even showed that the appellants were originally in the Oklahoma penitentiary after one being convicted of robbery and the other of murder.

The problem presented here is that of the right to a fair trial and the freedom of the press. Both are guaranteed by the Constitution of the United States and the State of Arkansas. The press has obviously rendered an invaluable service to the community, the state, and the nation in alerting the public to the situation which existed at the time. It is not inconceivable that the media may have in fact aided in the apprehension of the appellants. Certainly the court could not if it so desired, which it does not, curb the privilege of the free press. We are then left with the proposition of whether we can protect the right of a fair and impartial trial guaranteed to appellants by the constitutions. It is necessary for us to examine other cases which have dealt with this situation. The United States Supreme Court held in Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), that in some cases publicity may be so wide spread that courts can presume actual malice. The court also dealt with this situation in Bloeth v. Denno, 313 F.2d 364, cert. denied 372 U.S. 978, 83 S.Ct. 1112, 10 L.Ed.2d 143 (1963). There it was held that the issue of a jury's impartiality must be determined from a review of the entire voir dire and must include the extent and nature of publicity covering the crime. In Denno it was held that the jury could not honestly be found to be impartial in spite of the fact that the jurors gave assurance of...

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    ...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 t......
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