Snell v. State
| Decision Date | 15 December 1986 |
| Docket Number | No. CR,CR |
| Citation | 721 S.W.2d 628,290 Ark. 503 |
| Parties | Richard Wayne SNELL, Appellant, v. STATE of Arkansas, Appellee. 85-206. |
| Court | Arkansas Supreme Court |
Attaway & Shumaker by Rick C. Shumaker, Texarkana, for appellant.
Steve Clark, Atty. Gen. by Jack Gillean, Asst. Atty. Gen., Little Rock, for appellee.
On November 1, 1984 Richard Wayne Snell was charged by information with the violation of Ark.Stat.Ann. § 41-1501 by murdering William Stumpp in the course of a robbery. Stumpp's body was found in his Texarkana, Arkansas, pawnshop on November 3, 1983. He had been shot three times in the back of the head with a .22 calibre pistol. Weapons, cash and jewelry were missing. Snell was convicted and sentenced to death by lethal injection. Numerous points of error are presented on appeal. Our jurisdiction attaches under Rule 29(1)(e). We affirm the conviction and the sentence imposed.
Appellant's first point for reversal asserts the trial judge erred in informing the jury about the meaning of life without parole. While the jury was deliberating the penalty, it asked the court whether a sentence of life without parole "really means no parole." By agreement of counsel for the defense and for the state the court answered by explaining that under a sentence of life without parole the defendant would be incarcerated for life in the Department of Correction unless the governor commuted the sentence to a term of years. The jury later returned a verdict of death.
Citing Bush v. State, 261 Ark. 577, 550 S.W.2d 175 (1977) and Andrews v. State, 251 Ark. 279, 472 S.W.2d 86 (1971), appellant argues it was error to give this information to the jury notwithstanding his approval. But in neither of those cases did the defendant expressly approve of the jury being given the information about parole. In Andrews the defendant expressly objected. In Bush, there was no opportunity to object, as the information was given to the jury privately by the trial judge.
There is nothing so corrupting in the jury being told about parole that defense counsel can stipulate to a statement of the law being given to a jury and then use it as a means of reversal. For a good many years, the giving of such information to the jury, provided it was not inaccurate, was approved by our cases. See Glover v. State, 211 Ark. 1002, 204 S.W.2d 373 (1947); Pendleton v. State, 211 Ark. 1054, 204 S.W.2d 559 (1947) and see California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983). This exact situation occurred in Smith v. State, 278 Ark. 463, 648 S.W.2d 792 (1983) and we rejected the claim of error, saying that counsel may not agree to action taken by the trial court and then argue on appeal that such action is error.
Appellant next contends the trial court abused its discretion in denying a motion for a change of venue. The trial court found the supporting testimony insufficient and we are not persuaded the trial court's wide discretion was abused. The motion, filed by Wayne Snell acting as co-counsel, came only two weeks before trial, after the case had been pending for nine months. Two affidavits accompanied the motion and the affiants were questioned at a hearing a week before trial. While doubtless sincere in their own opinion, the affiants could cite little or nothing beyond their own convictions that a fair trial was not possible in the case and the trial court found the testimony insufficient. One affiant could recall neither a specific conversation nor an individual with whom she had discussed the case. She did not know if she had talked to anyone from the communities of Valley Gin, Kiblah, Dodridge, Bright Star, Sulpher, Genoa, Fouke, Mandeville, Pleasant Hill, Homan or Rondo.
While the other affiant was somewhat more specific, we cannot say the trial court's characterization of the sum of their testimony as "too remote" constitutes an abuse of his discretion in these matters. Our statute, Ark.Stat.Ann. § 43-1502 (Repl.1977), requires the defendant to produce at least two "credible persons" in support. But when those persons have knowledge concerning only a lesser portion of the county from which the jurors will be chosen, we have held that the trial court is justified in finding their testimony as lacking in credibility within the meaning of the statute. Jordan v. State, 141 Ark. 504, 217 S.W. 788 (1920); Brown v. State, 134 Ark. 597, 203 S.W. 1031 (1918); and Dewein v. State, 120 Ark. 302, 179 S.W. 346 (1915).
Appellant urges that in Rush v. State, 238 Ark. 149, 379 S.W.2d 29 (1964), where the defendant offered twelve affidavits and the state none, we held the trial court abused its discretion in denying a change of venue. We do not read the opinion in the Rush case as holding that however weak the supporting affidavits, the court must grant a change if the state fails to present offsetting proof, the defendant must still present two credible witnesses as defined by our statute and case law. In Rush, the defendant's twelve affidavits met the requirements of the statute and the state failed to meet them with proof to the contrary. On that set of facts, the trial court was reversed. We refuse to adopt a rule that tends to gauge a change of venue by purely mechanical formulas. We have held these issues are largely subject to the trial court's discretion. In Kirkendall v. State, 265 Ark. 853, 581 S.W.2d 341 (1979), we said:
A change of venue should be granted only when it is clearly shown that a fair trial is likely not to be had in the county. For these reasons such matters are left to the sound discretion of the trial court who is in a much better position to evaluate the situation than we are.
Appellant maintains he was deprived of the opportunity to question several jury panelists who were excused by the trial judge prior to the individual voir dire. Seven panel members were in fact excused on the basis of questions posed to the entire panel by the trial judge concerning familiarity with the attorneys, the defendant, or the victim. All seven were excused because they were acquainted with the victim. Not until the fifth panelist was questioned did the defense request the opportunity to ask about pretrial publicity. The request was denied by the trial court with the remark that counsel had previously agreed on that procedure--the trial judge would ask the usual general questions of the entire panel and counsel would then voir dire each panel member individually, with the defendant being permitted to ask about pretrial publicity. Counsel for appellant acknowledged that understanding. Moreover, the excusing of three panel members because of friendship with the victim could not have prejudiced the defendant, the question is, did the selection process result in a fair jury and nothing to the contrary is demonstrated. As to the dissent's assertion that Richard Wayne Snell was tried twice for the murder of Officer Lewis Bryant, we have searched the record and find no mention of that occurrence throughout the trial. It was mentioned by a few panelists during voir dire, but of those only one was seated on the jury and he was pronounced "good" by both the state and the defense. It should be noted the defense had peremptory challenges remaining when the twelfth juror was accepted. See Fairchild v. State, 284 Ark. 289, 681 S.W.2d 380 (1984).
Over appellant's hearsay objection William Stumpp's log of firearm transactions was introduced under the business records exception to the hearsay rule. A.R.E. Rule 803. The records reflected that a .45 calibre Colt Combat Commander automatic pistol was acquired by William Stumpp on November 1, 1982 in a pawn by Vicki Holmer, wife of John Thomas Holmer. Other proof established that the pistol belonged to John Thomas Holmer and was taken by Snell in the robbery and was used by Snell in the gun fight with the police at Broken Bow.
Citing A.R.E. Rule 803 and Cates v. State, 267 Ark. 726, 589 S.W.2d 598 (1979), appellant contends the requirement that the entries be made at or near the time the act occurred was not met. Mr. Cerrato, administrator of Stumpp's estate, testified the entries were all in Stumpp's handwriting and were entered in numerical and chronological order. He said as a general rule Mr. Stumpp wrote entries in his records before the end of each day, but he could not say categorically every entry was made in that fashion and thus the appellant argues there is no proof the record was made at or near the time the act occurred.
We think there was a sufficient basis for the introduction of these records. They are regular on their face; there is no showing the entries are not in the order in which they occurred, and all are in proper sequence. Stumpp was required to record these transactions by regulations of the Alcohol, Tobacco and Firearm Agency of the federal government, and only he could say with certainty that the entries were made contemporaneously with the event. The testimony that Stumpp customarily made entries on the day they occurred, the absence of any alteration appearing in the records, and the requirement of the federal agency making the timely entry of such transactions mandatory, satisfy us that the elements of Rule 803 were substantially met. For that matter this proof was entirely cumulative of other evidence showing the pistol was taken in the robbery.
Appellant argues that evidence was unlawfully seized from his van. On the afternoon of June 30, 1984 police officers in Oklahoma received a report that a suspect in a shooting at DeQueen, Arkansas, might be approaching Broken Bow in a van, pulling a trailer. When officers intercepted the van Snell jumped...
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