Sumlin v. State, CR

• Citation: 617 S.W.2d 372,273 Ark. 185
• Decision Date: 22 June 1981
• Docket Number: No. CR,CR
• Parties: Warren E. SUMLIN, Appellant, v. STATE of Arkansas, Appellee. 78-217.
• Court: Supreme Court of Arkansas

Page 372

617 S.W.2d 372

273 Ark. 185

Warren E. SUMLIN, Appellant, v. STATE of Arkansas, Appellee.

No. CR 78-217.

Supreme Court of Arkansas.

June 22, 1981.

Manuel L. Pruitt, Little Rock, for appellant.

Warren Sumlin, pro se.

Len Holt, Berkeley, Cal., for amicus curiae.

Steve Clark, Atty. Gen. by Jack W. Dickerson, Asst. Atty. Gen., Little Rock, for appellee.

HICKMAN, Justice.

Warren Sumlin was convicted of capital murder and sentenced to death. The charge was that he was an accessory to the murder of J. Y. Cooper. Cooper was killed by Warren Sumlin's wife who took Cooper's wallet and vehicle. The vehicle was to be used in an escape that the Sumlins planned.

Sumlin was in the Columbia County jail in the fall of 1977, awaiting extradition to California. While in jail he married Ruth Sumlin on the 2nd day of October, 1977. Together they planned Warren's escape from jail. Ruth Sumlin was to get a man named J. Y. Cooper drunk and steal his car which was to be used in flight. Afterwards Ruth was to force the jailer at gunpoint to free Sumlin. The State's case was uncontroverted in most regards.

There was substantial evidence to support the jury's finding that Sumlin was an accomplice to the murder of Cooper and that the murder was committed in the furtherance of two felonies, one to rob Cooper and steal his vehicle and the other to break Sumlin out of jail. However, because of the possibility of prejudice during the sentencing phase of the trial and because of our prerogative of comparative review in death cases, we reduce the sentence of death in this case to life imprisonment without parole.

Briefly, the facts are that Warren and Ruth Sumlin had discussed the escape in the jail and the plan was overheard by several other people. Ruth obtained a pistol ten days before the escape. J. Y. Cooper, an older man, had shown an interest in Ruth Sumlin and Ruth was to go with Cooper to a remote area, get him drunk, and take his vehicle. Ruth had gone out with Cooper and, according to her testimony, had sexual intercourse with him but because Cooper tried to attack her, she shot him. She admitted taking Cooper's car, going to the jail, and using a gun and knife to force the jailer to release Sumlin. The other cells also were opened and four other prisoners escaped. Two prisoners, Jackie Moore and Thurman Moore, accompanied the Sumlins in flight. A wild escapade followed the escape. At one time when both of the Moores were in the front seat of the vehicle, they were shot at the same time, evidently by both Sumlins who were in the back seat. Jackie Moore was shot in the head and Thurman Moore, Jr., was shot twice in the neck. Both were able to escape and both testified against Warren Sumlin. A good samaritan who stopped to assist what appeared to be Mrs. Sumlin having difficulty with the vehicle was also shot by Warren Sumlin. Fortunately he was not killed. When a policeman finally cornered the Sumlins, Warren Sumlin tried to escape and in doing so rammed a vehicle which had stopped so that the driver could assist the policeman.

Ruth Sumlin was tried separately on identical charges and was found guilty and sentenced to life without parole. At her trial she testified that it was Warren Sumlin who killed Cooper. This was contrary to strong evidence that Ruth had committed the deed. Ruth also testified that she was under the influence of Warren Sumlin and that the escape was Warren's plan, not hers. At Warren Sumlin's trial Ruth recanted her previous testimony and admitted that she killed Cooper. She claimed that the entire idea of breaking Warren Sumlin out of jail was her idea. Otherwise, Ruth's testimony paralleled that at the first trial.

The escape plan was common knowledge in the jail. Thurman Moore, a fellow prisoner, testified that Sumlin told him that Ruth was to "fool around" with J. Y. Cooper in order to get Cooper's car for the jail break. Ruth was supposed to get Cooper drunk and drop him off somewhere. Moore said he questioned Sumlin as to what Ruth would do if Cooper did not cooperate. Moore said Sumlin simply made a motion with his index finger as if he were pulling the trigger. Moore said that he was informed of all the details of the escape and had been told if the jailer did not cooperate, Ruth was going to shoot him.

Troy Lee Biggs testified that he was in the Columbia County jail when the escape occurred and that at one time he was in the same cell with Sumlin. Biggs testified that the Sumlins talked to each other through a jail window. He said he did not know anything about the escape.

Donald Lee Biddle was in the jail and he said that he knew about a week before the escape that it was going to take place. He said that Ruth Sumlin came to the jail almost every day and talked to her husband through a window. He heard them talking about getting J. Y. Cooper's car before the escape and heard the plans for both Sumlins to leave in the vehicle. He said that at one time Ruth Sumlin told Warren Sumlin that Cooper might not drink enough and Warren Sumlin told Ruth to do it the best way she could.

Jackie Moore testified that Warren Sumlin had told him he wanted to get out of jail. Moore had heard Warren ask Ruth to get him out.

Counsel for Sumlin raises six objections on appeal. First, it is argued that the aggravating circumstances do not exist beyond a reasonable doubt and do not justify the sentence of death. The jury found five aggravating circumstances: Sumlin had committed a prior felony with an element involving violence or creating a substantial risk of death or serious injury to another; in the commission of the capital murder he created a great risk of death to another person other than the victim; the murder was committed for the purpose of avoiding arrest or effecting an escape; the murder was committed for pecuniary gain; and, the murder was committed to disrupt or hinder a government function.

The wild escapade that Sumlin participated in cannot be isolated into different instances as he argues. The theft of the vehicle, the jail escape, and the events thereafter were all part of one plan. Ruiz v. State, 265 Ark. 875, 582 S.W.2d 915 (1979). If Sumlin were indeed an accomplice to the murder of Cooper, the jury could have found that other people were threatened with death or serious injury. For example, the jailer was forced at gunpoint to empty the cells.

There is evidence the murder was committed for pecuniary gain because Cooper's car and wallet were stolen. The wallet contained twenty or twenty-five dollars. It is possible that the jury might not have been justified finding that the murder was committed both to effect an escape and to disrupt or hinder a government function. These seem to be redundant findings.

Appellant's counsel argues that through comparative review the death sentence should be reduced to life imprisonment without parole and we agree with this argument. In Collins v. State, 261 Ark. 195, 223, 548 S.W.2d 106 (1977), cert. den. 434 U.S. 878, 98 S.Ct. 231, 54 L.Ed.2d 158 (1977), we discussed this court's responsibility in reviewing death penalty cases in relation to other death cases. We have done that in this case. In this case it would also be appropriate to compare the sentence that Ruth Sumlin received with the sentence imposed on Warren Sumlin because both were charged with, and convicted of, the same crime. We compare the death sentence in this case to all of those that have been imposed and reviewed since Collins v. State, id. We also consider the fact that error may have been committed during the sentencing phase. Using these criteria, we conclude that the death penalty in this case ought to be reduced to life without parole.

It is argued that the trial court committed error in forcing Ruth Sumlin to testify against her husband. Appellant claims that Ruth's testimony was privileged. There is a privilege for conversations between a husband and wife which involve confidential communications that are not intended for disclosure to any other person. That privilege is contained in Rule 504, Uniform Rules of Evidence, and may be claimed by either spouse in a criminal proceeding. Warren Sumlin claimed the privilege in this case. The State argued below that because Ruth Sumlin had testified to the conversations in her trial, the so-called confidential communication requirement was breached. That is, Ruth had told a third party the conversations. At first the trial court seemed to agree with the State's position. Later the court ruled that Ruth...