Scherrer v. State
| Decision Date | 19 January 1988 |
| Docket Number | No. CR,CR |
| Parties | Johnny SCHERRER, Appellant, v. STATE of Arkansas, Appellee. 87-71. |
| Court | Arkansas Supreme Court |
James P. Clouette, Little Rock, for appellant.
Clint Miller, Asst. Atty. Gen., Little Rock, for appellee.
This case was tried and appealed separately from the case of Jimmy Scherrer v. State of Arkansas, 294 Ark. 287, 742 S.W.2d 884 (1988), also decided today. Johnny Scherrer was found guilty of murder in the first degree. Because the jury could not agree upon a sentence, the trial judge sentenced him to life imprisonment pursuant to Ark.Stat.Ann. §§ 41-802 and 43-2306 (Repl.1977). He argues ten points for reversal. We find no error and affirm the judgment of the trial court.
Debbie Watts was murdered in 1985. Terry Harrison, Scherrer's accomplice, and Billy Ivey, who witnessed the murder, offered the principal testimony at trial. Harrison testified that Scherrer, utilizing the name Jim Woods, called the victim's place of employment two days before the murder asking to speak with her. He also testified that Scherrer called the victim on the day of the murder and told her to meet him out near Dunklin's farm, which was near the crime scene. Ivey's and Harrison's testimony essentially established that Scherrer raped her, cut her throat, and then put her body in a nearby canal. Other witnesses placed Scherrer's automobile in the vicinity of the crime scene on the day of the murder.
Scherrer first argues that the trial court erred in refusing to grant his motion for a directed verdict since the state failed to corroborate the accomplice testimony of Ivey and Harrison. Ark.Stat.Ann. § 43-2116 (Repl.1977) provides in pertinent part:
A conviction cannot be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed, and the circumstances thereof.
We have held that the failure of the state to corroborate its accomplice testimony warrants reversal and dismissal since it is essentially a failure by the state to prove its case. See our supplemental opinion on denial of rehearing in Foster v. State, 290 Ark. 495, 722 S.W.2d 869, cert. denied, 482 U.S. 929, 107 S.Ct. 3213, 96 L.Ed.2d 700 (1987).
Ark.Stat.Ann. § 41-303(1) (Repl.1977) defines accomplice:
A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, he:
(a) solicits, advises, encourages or coerces the other person to commit it; or
(b) aids, agrees to aid, or attempts to aid the other person in planning or committing it; or
(c) having a legal duty to prevent the commission of the offense, fails to make proper effort to do so.
Mere presence, acquiescence, silence, or knowledge that a crime is being committed, in the absence of a legal duty to act, or failure to inform officers of the law is not sufficient to make one an accomplice. Spears v. State, 280 Ark. 577, 660 S.W.2d 913 (1983). The defendant has the burden of proving that a witness is an accomplice whose testimony must be corroborated. Lear v. State, 278 Ark. 70, 643 S.W.2d 550 (1982).
The evidence clearly reflects that Harrison was an accomplice and that Ivey was not. Ivey testified that although he was present at the crime scene, he did not participate in the commission of the crime. Terry Harrison corroborated this testimony. Other evidence introduced at trial establishes that Ivey simply witnessed the crime and then failed to inform the police. The jury was instructed pursuant to §§ 41-2116 and 41-303(1) and evidently concluded that Ivey was not an accomplice. The finding of a jury that a witness is not an accomplice is binding unless the evidence conclusively shows otherwise. Spears, supra. The evidence presented at trial does not show conclusively that Ivey was an accomplice.
When there is no evidence from which a jury could find a defendant guilty without resorting to speculation and conjecture, a trial judge should grant a directed verdict. Fortner v. State, 258 Ark. 591, 528 S.W.2d 378 (1975). Ivey testified that he saw Scherrer cut the victim's throat, place her on a piece of plastic, and rape her. Since Harrison's and Ivey's testimony coupled with other circumstantial evidence are sufficient evidence of Scherrer's guilt, the trial court was correct in refusing to render a directed verdict.
Scherrer contends that the trial court prejudicially erred in denying his motion to disqualify the prosecutor, Sam Pope. He relies on our holding in Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987), to the effect that when a prosecutor takes such an active role in the investigation of a crime that he potentially becomes a material witness for either the state or the defense, it is reversible error to allow him to serve as an advocate for the state in the case. In Duncan, the prosecutor engaged in extensive interrogation of the defendant. He testified not only at a suppression hearing in support of interrogation procedures but also, in argument to the jury, he described the events during the defendant's confinement and expressed his opinion regarding a crucial element of the case. We held that in so doing, the prosecutor committed reversible error since he effectively became a witness for the state and underwrote his own credibility.
Unlike in Duncan, the prosecutor did not interrogate Scherrer but merely took a statement from Ivey, a potential witness (after promising him limited immunity), which implicated Scherrer. The defense later called Pope to testify concerning this statement and the offer of immunity. Pope's actions were part of a prosecutor's routine preparation for trial. He did not take such an active role that he potentially became a material witness in the case. The trial court did not err in denying the motion to disqualify.
Scherrer argues that because he had to use three of his peremptory challenges to strike jurors who should have been excluded for cause, he was forced to allow an objectionable juror to be seated. In order to preserve this point for appeal, an appellant must have exhausted his peremptory challenges and must show that he was later forced to accept a juror who should have been excused for cause. Watson v. State, 289 Ark. 138, 709 S.W.2d 817 (1986); Hill v. State, 275 Ark. 71, 628 S.W.2d 284, 285 (1982).
The sixth amendment to the Constitution of the United States guarantees a criminal defendant the right to unbiased and unprejudiced jurors. See Haynes v. State, 270 Ark. 685, 606 S.W.2d 563 (1980). The burden is on the party challenging the juror to prove actual bias. Fleming v. State, 284 Ark. 307, 681 S.W.2d 390 (1984). When a juror states that he can lay aside preconceived opinions and give the accused the benefit of all doubts to which he is entitled by law, he qualifies as impartial under constitutional requirements. Glover v. State, 248 Ark. 1260, 455 S.W.2d 670 (1970). A defendant is not entitled to a trial before jurors completely ignorant of the alleged crime. Burnett v. State, 287 Ark. 158, 697 S.W.2d 95 (1985), rev'd on other grounds, Midgett v. State, 292 Ark. 278, 729 S.W.2d 410 (1987).
After Scherrer exhausted his peremptory challenges, the trial court seated juror Rathey as the twelth and final juror. At this point, Scherrer objected by stating that he would strike Rathey if he had a peremptory challenge. From the voir dire testimony, there is no evidence that Rathey was biased. In fact, he indicated that he understood the presumption of innocence and would follow the law as explained by the court. Although Rathey stated that he had heard about the case on television, this in itself is not sufficient cause for removal. Id. There is no merit in Scherrer's contention that an objectionable juror was forced upon him.
Scherrer contends that the trial court erred in admitting custodial statements coerced from him and Jimmy Scherrer in violation of their fourteenth and fifth amendment right not to incriminate themselves.
Johnny Scherrer does not have standing to assert that Jimmy Scherrer's right not to incriminate himself was violated since this right is personal. United States v. Nobles, 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975); Shinsky v. State, 250 Ark. 620, 466 S.W.2d 911 (1971). In addition, since no custodial statements made by Jimmy Scherrer were introduced into evidence against Johnny Scherrer, Johnny Scherrer was not prejudiced in any way. See Blake v. State, 244 Ark. 37, 423 S.W.2d 544 (1968).
The issue that we must decide is whether Johnny Scherrer's custodial statements were involuntary. Such statements are presumed to be involuntary. Fleming, supra. On appeal the burden is on the state to show that the confession was made voluntarily, freely, and understandingly, without hope of reward or fear of punishment. Jackson v. State, 284 Ark. 478, 683 S.W.2d 606 (1985).
In determining whether a custodial statement is voluntary, we make an independent review of the totality of the circumstances and will reverse only if the trial court's findings are clearly against the preponderance of the evidence. Free v. State, 293 Ark. 65, 732 S.W.2d 452 (1987). Pursuant to the "totality of the circumstances" approach, we examine two basic components: the statements of the officer and the vulnerability of the accused. Fleming, supra. Some of the factors we consider in determining whether a statement was voluntarily made include the youth or age of the accused, lack of education, low intelligence, lack of advice as to constitutional rights, length of detention, repeated and prolonged questioning, and the use of...
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