Ruiz v. State, CR
| Decision Date | 08 June 1981 |
| Docket Number | No. CR,CR |
| Citation | 617 S.W.2d 6,273 Ark. 94 |
| Parties | Paul RUIZ and Earl Van Denton, Appellants, v. STATE of Arkansas, Appellee. 80-147. |
| Court | Arkansas Supreme Court |
Lessenberry & Carpenter by Thomas M. Carpenter, Little Rock, for appellants.
Steve Clark, Atty. Gen., by Victra L. Fewell, Asst. Atty. Gen., Little Rock, for appellee.
Appellants were first convicted in Logan Circuit Court of crimes of capital murder in the June 29, 1977, robbery, kidnapping and shooting deaths of Marvin Ritchie and Opal James. The jury returned death sentences. On appeal, we reversed the trial court's denial of motions for a change of venue, pointing to the oppressive and unprecedented pre-trial publicity surrounding the crimes. Ruiz & Van Denton v. State, 265 Ark. 875, 582 S.W.2d 915 (1979). On remand, the case was transferred to the Conway Circuit Court, the most distant in that judicial district. In the second trial, verdicts of guilt were again returned and in the penalty phase the jury found a number of aggravating factors, no mitigating factors and again imposed sentences of death by electrocution. This appeal is from the second convictions.
While serving life sentences, appellants escaped from the Oklahoma State Prison on June 23, 1977. On the morning of June 29 they were seen near the town of Magazine, in Logan County, parked along Scott Creek Road in a 1972 Ford automobile with a Louisiana license. The record is silent as to where or how, but sometime early that morning, the marshal of Magazine, Marvin Ritchie, came in contact with appellants. His shirt was taken from him and he was placed in the back of his car, his hands handcuffed behind his back. That same morning David Small and Opal James, employees of the Corps of Engineers, were working in the area of Blue Mountain Lake. Driving a Corps of Engineers' pickup truck, they met Marshall Ritchie's car on the road to Ashley Creek Park at around 9 o'clock. The marshal's car drove across the road, blocking their path, and appellants got out of the car brandishing pistols. Paul Ruiz was wearing Marshal Ritchie's shirt. Small and James were robbed of their shirts and billfolds and put in the back seat of the car with Marshall Ritchie. Appellants asked about roads leading west, which of them knew the area best, and were told Opal James. Appellants concealed the marshal's car in a drainage ditch and ordered Ritchie and Small into the trunk handcuffed together. Small's watch was taken from his wrist and one appellant said "you know what we've got to do." The other answered, "yes, I do." Two shots were fired, one into the brain of Marvin Ritchie, the other into the chest of David Small, and the trunk was closed.
At around 2:30 that afternoon a search party discovered the vehicle and opened the trunk to find Marvin Ritchie dead and David Small critically wounded, but alive and able to provide crucial testimony in trial. Two days later the truck and the body of Opal James were discovered in a wooded area north of Oden in Montgomery County, the body already badly decomposed. Death was caused by a single bullet through the head. The appellants were arrested on July 8, 1977, in Portland, Oregon. Additional testimony, including ballistics and fingerprinting, further connected appellants and the crimes. Neither appellant testified.
On appeal, six instances of error by the trial court are alleged. They have been reviewed along with other objections as required by Rule 36.24, A.R.Crim.P. We find no reason to reverse.
Appellants first argue that the offenses should have been severed. They were charged under Ark.Stat.Ann. § 41-1501(1)(a) and 41-1501(1)(c) (Repl.1977) with the deaths of two persons while committing robbery and kidnapping; they contend that there is insufficient evidence that these offenses occurred during the same criminal episode. The concede a similar point was raised in the first appeal, but they submit the issue was presented differently then, i. e., whether the evidence was insufficient to support the contention that both murders occurred during the course of a single criminal episode. Whereas, the issue raised now is whether the offenses should have been severed for purposes of trial, there being no common scheme or plan. Granted, the new wording is altered slightly, and if the issue is now presented in a different context, it leaves the substance of the argument essentially unchanged. In either case, if the evidence supports a determination that both homicides occurred as a part of the same criminal episode, or were parts of a series of connected acts, then it was not incumbent on the trial court to grant a severance, and certainly not mandatory. The trial court had that discretion and its discretion was not abused.
We disagree that these two murders are not within a single criminal episode or a series of connected acts. Rule 21.1(b), A.R.Crim.P., permits the joinder of two offenses in one information when they are based on "a series of acts connected together...." All three men were taken prisoner within a brief period of time, robbed, kidnapped and transported some distance to the drainage ditch where Opal James witnessed the shooting of Marvin Ritchie and David Small, the latter surviving through no credit to the appellants. The fact that Opal James's death did not occur until later does not disconnect it from the entire episode, as it is plain that his death was deferred solely because he was needed to guide the appellants in unfamiliar territory. We find no greater merit in the argument now than before. In the earlier appeal, it was said:
We fail to understand why appellants would seriously ask us to declare that the evidence in this case was insufficient to support the verdict rendered by the jury. The fact that Marvin Ritchie was killed on the morning of June 29, 1977, and that Opal James was killed 13 or 14 hours later, in Montgomery County or Scott County, does not prove that these two men were not killed in the same criminal episode.
Appellants invoke Rules of Crim.Proc., Rule 22.2(a) (1976):
Whenever two (2) or more offenses have been joined for trial solely on the ground that they are of the same or similar character and they are not part of a single scheme or plan, the defendant shall have a right to a severance of the offenses.
They argue that the offenses are not part of a single scheme or plan. That assertion is debatable, but whether they were part of a single plan or simply random, disconnected crimes is beside the point, because they constitute one criminal episode and when a series of acts are connected that is enough to give the state a right to join them in a single formation. Rule 21.1, supra.
The commentary to Rules 21, 22 and 23 states that they are designed "to promote expeditious disposition of criminal cases" without resulting in prejudice to the defendants and without unreasonably restricting the trial court's discretion in finding the right balance between the two opposing interests. (See Commentary, Article VI, Ark.Stat.Ann., Vol. 4, p. 488.) Rule 22.2, which appellants cite, gives an absolute right of severance when the offenses have been joined solely on the ground that they are of the same or similar character. (Commentary, p. 489.) Here, the offenses cannot be said to have been joined solely on that ground for the reasons we have stated, and the trial court properly declined to grant a severance.
Appellants refer to the dictum in Rowe v. State, 271 Ark. 20, 607 S.W.2d 657 (1980), through conceding a different context. Rowe involved the principle of double jeopardy, the issue being whether the conduct of the accused constituted a single offense as opposed to two offenses. That is not the question here, so no guidance is provided by the Rowe decision.
Secondly, it is urged that the court erred in excusing certain jurors for cause. The argument here is bi-fold, that three of the 21 jurors excused by the court because of opposition to the death penalty should not have been excused for cause under the precepts announced in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) and in Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433 (1969), and that other jurors were improperly excused because of relational ties to a secretary of the prosecuting attorney. First, appellants earnestly submit that jurors Harold Scroggins, Jo Ann Everett and James Moore did not demonstrate fixed opposition to the death penalty and, therefore, their dismissal by the court was not in keeping with Witherspoon, where it is held that conscientious or religious scruples against the death penalty are not disqualifying; a juror must indicate that he will automatically vote against it under any circumstances. We find these jurors gave a clear indication that they would not vote for death whatever the circumstances. It is true that all were in some respects ambivalent in their responses, depending on how the question was phrased, however, in the end all three came short of meeting the test of Witherspoon, and Boulden, that in spite of conscientious scruples against capital punishment they would consider and even impose the death penalty depending on the circumstances. Appellants point out that each of the three expressed a willingness to "consider" death as a possible punishment and contend that this suffices. But all three qualified their responses by saying that they would not vote for the death penalty notwithstanding their willingness to consider it. To say that one would consider the death penalty but would not vote for it is nothing more than a play on words and fails the test of Witherspoon.
Appellants point to a "yes" answer by juror Everett when asked if she would consider both choices, life or death; but the question she was answering was expressly limited to whether she would merely "consider" the two options, as opposed to whether she could then...
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