Sanders v. State

• Decision Date: 20 June 1994
• Docket Number: No. CR,CR
• Citation: 317 Ark. 328,878 S.W.2d 391
• Parties: Raymond C. SANDERS, Appellant, v. STATE of Arkansas, Appellee. 92-1145.
• Court: Arkansas Supreme Court

Page 391

878 S.W.2d 391

317 Ark. 328

Raymond C. SANDERS, Appellant, v. STATE of Arkansas, Appellee.

No. CR 92-1145.

Supreme Court of Arkansas.

June 20, 1994.

Tona M. Demers, Little Rock, for appellant.

Clint Miller, Acting Deputy Atty. Gen., Little Rock, for appellee.

HOLT, Chief Justice.

This is a death penalty case. The appellant, Raymond C. Sanders, has brought three previous criminal appeals before this court. Sanders v. State, 305 Ark. 112, 805 S.W.2d 953 (1991) (Sanders I); Sanders v. State, 308 Ark. 178, 824 S.W.2d 353 (1992) (Sanders II); Sanders v. State, 310 Ark. 510, 838 S.W.2d 359 (1992) (Sanders III). One of the appeals (Sanders II) arose from his convictions of the capital murders involved in the present appeal, while the other two (Sanders I and III) concerned an unrelated capital murder. In the current appeal, only the resentencing proceedings, mandated by this court's partial reversal and remand in Sanders II, supra, are under consideration.

Sanders raises eight points for reversal, none of which has merit. He contends that the trial court erred in (1) determining that the Grant County Circuit Court was the proper venue for the trial or the resentencing proceedings; (2) permitting the State to use a murder committed after the murders at issue as proof of an aggravating circumstance; (3) allowing inflammatory photographs to be shown to the jury during the resentencing proceedings; (4) refusing to grant a continuance; (5) failing to disqualify the prosecuting attorney; (6) denying the defense's motion for a mistrial on the basis of the presiding judge's alleged conversation with the jury foreman; (7) denying the defense's motion to dismiss the capital felony murder charge on the basis that the statutory definition of capital felony murder unconstitutionally overlaps with the statutory definition of first-degree felony murder; (8) denying the defense's motion to dismiss the capital felony murder charge on the basis that the statutory definition of capital murder does not narrow the categories for which the death penalty may be imposed.

It should be noted, at the outset, that Sanders's abstract fails to comply with Ark.Sup.Ct.R. 4-2(a)(6), which requires that "[n]ot more than two pages of the record shall in any instance be abstracted without a page reference to the record." Those portions of the appellant's abstract in which the testimony at various hearings is condensed comprise fifty-two pages of the appellant's seventy-three-page abstract, yet only three single-page references appear. Within the eight points comprising Sanders's argument, there are no references whatsoever to pages in the abstract; only transcript citations are supplied. In addition, as will be discussed later, the portion of the record on which Sanders's sixth point for reversal is based is not abstracted, though the State includes the relevant testimony in its brief. Although this court has, from time to time, required rebriefing in such circumstances under Sup.Ct.R. 4-2(b)(2), the fact that this is a second appeal of an ongoing capital case (with a factual background fully developed in the previous appeal) enables us to resolve the issues raised on the basis of the briefs as presented.

Facts

The facts in the present matter were set forth in Sanders II, 308 Ark. at 181-182, 824 S.W.2d at 355-356. As the present appeal consists exclusively of a review of the resentencing phase, an extended narrative recapitulation is unnecessary other than to note that on or about November 21, 1989, Sanders shot and killed Charles and Nancy Brannon, ransacked their house, and removed rings from Mrs. Brannon's fingers.

The original trial was held before a jury in February 1991 in the Grant County Circuit Court. Sanders was found guilty on both charges of capital murder and was sentenced to death on each count. On appeal to this court, the capital murder convictions were affirmed, but the death sentences were reversed and remanded for resentencing. Sanders II, supra.

At the resentencing trial, held before a new jury in the Grant County Circuit Court on August 28 and 31, 1992, Sanders again received the death penalty on both counts for the capital murders of the Brannons. He again appeals.

I. Venue

In his first argument for reversal, Sanders asserts that the trial court erred in determining that the Grant County Circuit Court was the proper venue for both the original trial and the resentencing proceedings. He contends that he was denied his constitutional right to be tried in the county in which the crimes occurred--in this instance, Hot Spring County--and claims, without offering supporting evidence, that he was "purposely tried in a county more likely to give him the death penalty."

Article 2, section 10, of the Arkansas Constitution provides that a criminal defendant has the "right to a speedy and public trial by impartial jury of the county in which the crime shall have been committed." Venue, however, "may be changed to any other county of the judicial district in which the indictment is found, upon the application of the accused." See also Davis v. Reed, 316 Ark. 575, 873 S.W.2d 524 (1994); Waddle v. Sargent, 313 Ark. 539, 855 S.W.2d 919 (1993).

Sanders's own counsel had, prior to the February 1991 trial, made a motion for change of venue. Although no record of an application for or granting of a change of venue in compliance with Ark.Code Ann. § 16-88-204 (1987) appears in the record, the original defense attorney, Bill Murphy, testified on August 10, 1992, at a pretrial evidentiary hearing in the resentencing proceedings, that the trial court had granted the motion and had given Sanders the choice to move venue for the initial trial to either Saline or Grant County. Mr. Murphy stated that, "[a]fter discussing it with my client, we decided together on Grant County." Sanders, testifying at the pretrial hearing, insisted that he had not agreed to the change of venue, but the trial judge found that Mr. Murphy's account corresponded to his own recollection of the matter and that "there was no objection to the motion."

Conflicts in testimony are for the trial court to resolve, and the court is not obliged to believe any witness's testimony--particularly that of the accused, the person most interested in the outcome of the proceedings. Ross v. State, 300 Ark. 369, 779 S.W.2d 161 (1989). Venue in Grant County was proper.

II. Previous conviction for subsequent crime

For his second point on appeal, Sanders argues that the trial court erred in permitting the State to prove the aggravating circumstance of the commission of another felony involving the use of violence by introducing his conviction for a murder that occurred after the killings in the present case. Under Ark.Code Ann. § 5-4-604(3) (Repl.1993), one of the aggravating circumstances that may be considered in death-penalty cases is that

The person previously committed another felony, an element of which was the use or threat of violence to another person or the creation of a substantial risk of death or serious physical injury to another person....

The murder of Frederick LaSalle, for which Sanders was convicted and sentenced to life imprisonment without parole, occurred on December 31, 1989, whereas the Brannon killings occurred on or about November 21, 1989. Therefore, Sanders maintains, it cannot be considered a "previously committed" violent felony under the statute.

We reversed Sanders's original conviction in the LaSalle murder and remanded the matter for a new trial in Sanders I. The second conviction and life sentence were affirmed in Sanders III, handed down on October 5, 1992. In the previous appeal in the present case, Sanders II, involving the murder of the Brannons, we held that, where the prosecutor had introduced the conviction judgment in the LaSalle killing to establish an aggravating circumstance and that judgment was subsequently reversed, the use of the conviction was prejudicial, and Sanders was entitled to be resentenced. See Johnson v. Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988). In Sanders II, we noted that, "because we must declare error on this point, we need not address the appellant's argument that the capital murder was not previously committed to the present crimes as is required under § 5-4-604(3)." 308 Ark. at 184, 824 S.W.2d at 357.

The State, in the present appeal, contends that, by virtue of the requirement of Ark.Sup.Ct.R. 4-3(h) that the Supreme Court of Arkansas review all prejudicial errors in a death case, this court has decided the issue against Sanders, and the doctrine of the law of the case applies. See Bennett v. State, 308 Ark. 393, 825 S.W.2d 560 (1992). In Sanders II, however, we were merely declining to consider a single facet of a larger issue which had already been resolved in Sanders's favor, thus rendering consideration of the subpoint unnecessary. Thus, it is necessary to focus upon the merits of the question as law of the case does not apply.

It should be noted that this court has never addressed precisely this issue--that is, whether a violent felony committed after a crime that warrants imposition of the death penalty may be considered as an aggravating circumstance in the sentencing phase when the conviction for the violent felony was entered prior to the sentencing trial. Other jurisdictions, however, have dealt with the question, and their holdings have been collected in Thomas M. Fleming, Annotation, Sufficiency of Evidence, for Purposes of Death Penalty, to Establish Statutory Aggravating Circumstance that Defendant was Previously Convicted of or Committed Other Violent Offense, had History of Violent Conduct, Posed Continuing Threat to Society, and the Like--Post Gregg Cases, 65 A.L.R.4th 838, 919-925 (1988).

In Daugherty v. State, 419 So.2d 1067 (Fla.1982), the appellant, who had been sentenced to death for the murder of a hitchhiker, challenged the admission of various...