Sims v. State

• Citation: 320 Ark. 528,900 S.W.2d 508
• Parties: Terry SIMS, Appellant, v. STATE of Arkansas, Appellee. CR 94-934.
• Decision Date: 22 May 1995
• Court: Arkansas Supreme Court

Page 508

900 S.W.2d 508

320 Ark. 528

Terry SIMS, Appellant, v. STATE of Arkansas, Appellee.

CR 94-934.

Supreme Court of Arkansas.

May 22, 1995.

Maxie G. Kizer, Pine Bluff, for appellant.

David R. Raupp, Asst. Atty. Gen., Little Rock, for appellee.

HOLT, Chief Justice.

The appellant, Terry Sims, was convicted of capital felony murder and sentenced to life imprisonment without parole. On appeal, he asserts the following three points of error: (1) that the State unconstitutionally used its peremptory strikes to exclude African-Americans from the petit jury; (2) that the trial court erroneously denied the motion to transfer his case to juvenile court; and (3) that his confession was illegally taken. After examining these points as well as all objections decided adversely to Sims pursuant to Ark.Sup.Ct.R. 4-3(h), we affirm.

Facts

On December 15, 1992, the body of Mary Lou Jones was discovered behind the counter at Cloud's Grocery Store in Casscoe, Arkansas. An employee of the store, Ms. Jones had been shot three times in the head. The owner, Julian Russell, had also been shot and was on the floor behind the store's meat counter. He died at a Little Rock hospital the following evening.

Police discovered the movie "52 Pickup" and a receipt for its rental on the store's counter bearing the name of the appellant, Terry Sims, then sixteen-years-old. When Arkansas State Police Investigator Lloyd Franklin phoned Sims on December 16, Sims told him that he had returned the movie to the store during his lunch break at school on December 15. Unaware that Investigator Franklin had spoken with Sims, Investigator Gary Allen interviewed him as a potential witness on December 29, at which time Sims stated that he had returned the tape to the store shortly after 7:00 p.m. on December 15.

Based upon the discrepancies in Sims's statements to these two officers, Sims was interviewed by Investigators John McCord and John Howell on January 5, 1993, and gave a voluntary statement without either of his parents being present to consent to waiver of his right to counsel. Discovering inconsistencies in Sims's January 5 statement after speaking with another witness, the officers interviewed Sims at 4:00 p.m. on January 8. At that time, Sims gave another voluntary statement implicating others in the murders. Subsequently, at 9:38 p.m., after being advised of his Miranda rights, Sims, again without either of his parents being present, admitted to the murders.

According to the last statement Sims gave to the police, he and Bell went to Cloud's Grocery Store on the night of the incident, and Sims returned the movie while Bell asked Mr. Russell if he had any fuses. While Mr. Russell was looking for fuses, Sims shot him approximately five times. Ms. Jones began screaming, and after she gave Bell approximately $200 from the register and picked up the telephone, Sims shot her twice. Sims and Bell then went to Sims's car and drove to a friend's house.

Sims was charged by felony information with two counts of capital felony murder. Prior to trial, Sims filed motions to transfer his case to juvenile court, to change venue, and to suppress his statements to police, all of which were denied following separate hearings. At trial, the jury, after hearing all the evidence, found Sims guilty as charged, and, although the State sought the death penalty, the jury recommended that Sims be sentenced to life imprisonment without parole. The trial court entered judgment against Sims, from which he now appeals.

I. Batson objection

For his first point of error, Sims claims that the State unconstitutionally used its peremptory strikes to exclude African-Americans from the petit jury. Ms. Tisinger, a minority venire member, was struck by the State. Sims objected, and the prosecutor offered the following explanation for striking Ms. Tisinger:

First of all, Ms. Tisinger was acquainted with the defendant's sister and went to school with her for twelve years. Secondly, I got some mixed signals about what she would require of the state in proving this case against the defendant. Third, quite frankly I think she was much too anxious to say that she would impose the death penalty. I have some questions about her desire to try and get on this jury to do something. I am concerned about all three of these factors. I am not seeking to do anything because of her race. I would point out that there are prior African American jurors that have been seated on this case.

Sims responded that Ms. Tisinger's responses were no different than those of any other jurors, and that she stated that she had not spoken to Sims's sister in a number of years. The trial court held that a prima facie case was not made, stating as follows:

I have reviewed Mr. Hall's work on the subject and his digest of cases and read several of the cases cited therein as well as Batson itself. For the record I would note that the state has exercised four peremptory challenges, three of which were used to excuse whites and one of a black, a Ms. Ellis. She had a wide variety of matters or answers that could give a prosecutor pause. The other prospective black jurors that have been excused were Ms. Hancock, Ms. Lockett and Ms. Dabner for their inability to consider the death penalty. Ms. Briggs was a cousin of the defendant. Ms. Jones, my notes reflect, had already made up her mind.

(After counsel for Sims commented that he had no objection to Ms. Jones being excused, the trial court continued.)

Mr. Ferguson is so far the only black juror to be seated. Having said all that I cannot find a pattern here of discrimination or an attempt to exclude all of the blacks from the panel. I would note too that Ms. Tisinger's answers were technically correct in almost all aspects but I can find some justification for [the prosecutor's] gut reaction to Ms. Tisinger as a juror. She does have a basis of knowing or being acquainted with some members of the family. For that reason I will allow the peremptory.

The landmark case of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), provides that the Equal Protection Clause forbids prosecutors from challenging potential jurors solely on the basis of race. See the recent application of the Batson doctrine in Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995).

In the recent case of Rockett v. State, 318 Ark. 831, 890 S.W.2d 235 (1994), we set out the procedures which are to be followed in Arkansas when a Batson objection is raised:

First, the defendant must make a prima facie case that racial discrimination is the basis of a juror challenge. In the event the defendant makes a prima facie case, the state has the burden of showing that the challenge was not based on race. Only if the defendant makes a prima facie case and the state fails to give a facially neutral reason for the challenge is the court required to conduct a sensitive inquiry.

318 Ark. at 839, 890 S.W.2d at 239 (quoting Franklin v. State, 314 Ark. 329, 338, 863 S.W.2d 268, 273 (1993)). The standard of review for reversal of a trial court's Batson ruling is whether the court's findings are clearly against the preponderance of the evidence. Bradley v. State, 320 Ark. 100, 896 S.W.2d 425 (1995); Rockett v. State, supra; Colbert v. State, 304 Ark. 250, 801 S.W.2d 643 (1990).

In his brief, Sims contends that the issue of whether a prima facie case of discrimination was made is moot, relying on the United States Supreme Court decision in Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). We agree with the State's assertion that Sims's reliance on the case is misplaced, as in that case, the trial court had no opportunity to rule on whether a prima facie case of discrimination had been shown; rather, the trial court only ruled on the question of intentional discrimination, and, as such, the Supreme Court concluded that the issue of whether a prima facie case had been made was moot. Id. at 358-60, 111 S.Ct. at 1866. Conversely, in this case, the trial court ruled that a prima facie case had not been made, and alternatively, that intentional discrimination had not been shown.

Sims also asserts that the striking of Ms. Tisinger in and of itself established a prima facie case of racial discrimination. See e.g. Franklin v. State. Sims's reliance on Franklin is strained, as in that case, while we held that a prima facie case was shown when the State challenged the first African-American juror called, we recognized that that case was one "fraught with racial overtones," and concluded that a racially neutral explanation was required "under the totality of relevant facts." Franklin 314 Ark. at 338-339, 863 S.W.2d at 273. Whereas the jury in Franklin was composed entirely of white persons by the time the trial court ruled on Franklin's Batson motion, in this case, Juror Ferguson, an African-American, had been seated as a juror prior to the State's challenge of Ms. Tisinger.

Prior to the striking of Ms. Tisinger, the State had used its first peremptory challenge to excuse an African-American veniremember, Ms. Ellis, and three more peremptory challenges to excuse white veniremembers. While Sims made a Batson objection when the State excused Ms. Ellis, Sims does not abstract this portion of the record and from what little information we have before us, we see no pattern of discrimination. Furthermore, Sims does not furnish us with a comprehensive analysis of the jury's composition; rather, with the exception of Ms. Tisinger's examination, he only abstracts the voir dire examinations of the jurors who were seated. While the State maintained in its argument to the trial court that other African-American jurors had been seated as jurors, we have no evidence of the jury's composition other that the trial court's comment and Sims's concession in his brief that at least one African-American, Juror Ferguson, had been seated prior to the striking of Ms. Tisinger. Un...