Swindler v. State

• Decision Date: 17 July 1978
• Docket Number: No. CR77-189,CR77-189
• Citation: 569 S.W.2d 120,264 Ark. 107
• Parties: John Edward SWINDLER, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 120

569 S.W.2d 120

264 Ark. 107

John Edward SWINDLER, Appellant, v. STATE of Arkansas, Appellee.

No. CR77-189.

Supreme Court of Arkansas, In Banc.

July 17, 1978.

Rehearing Denied Sept. 5, 1978.

Don R. Langston, Fort Smith, for appellant.

Bill Clinton, Atty. Gen. by Garner L. Taylor, Jr., Asst. Atty. Gen., Little Rock, for appellee.

BYRD, Justice.

Appellant killed Officer Randy Basnett of the Fort Smith Police Department at the Road Runner service station on Kelly Highway which is located just off Interstate 540 and across from the State Police District Headquarters in Fort Smith. The jury found appellant guilty of Capital Felony Murder and fixed his punishment at death. For reversal appellant raises the issues hereinafter discussed.

POINT I. Before trial appellant properly moved for a change of venue with the necessary supporting affidavits. The proof showed, without contradiction, that the news media had saturated the public with the fact that appellant had been released from Leavenworth prison just a week before killing Officer Basnett and that at the time of the killing he was wanted in South Carolina for the recent murder of two teenagers. The fact that appellant had been interviewed by the South Carolina authorities was also given wide spread publicity. In addition to the publicity involving the killing and subsequent funeral of Officer Basnett, the Concerned Policemen's Wives Organization, some 45 strong, circulated petitions requesting two policemen to each patrol car. This organization wearing black arm bands collected between nine and ten thousand signatures. The people who signed the petition, mentioned the policeman that was killed by appellant, and, were told that the black arm band was worn in mourning and in respect of the fallen officer.

Alan Wooten, an attorney and resident of Fort Smith, testified that he did not think it possible from the one thousand or so people selected by the jury commissioners to select twelve people who either do not have a fixed opinion or could set aside the opinion they have as to the guilt or innocence and hear this case and base their decision solely on the law and evidence as presented in court.

Tom Anderson, the Historical Director for Sebastian County, testified that from his conversations with other people, they felt the same way he did. Everyone of them seemed to think appellant was guilty. At least ten of the people he talked to said that appellant didn't even deserve a trial at all. Several of them said appellant should have been shot and thrown in the river when they captured him. On cross-examination he testified that to him a fair trial means that the jury will make their decision based on what they hear inside the courtroom and would either be ignorant or would blot out everything they've heard before they got to court. He hadn't run into anybody that would fit that criteria in Sebastian County.

Robert Taylor, an attorney and resident of Sebastian County testified that appellant could not get a fair trial in Sebastian County. He stated that any person he talked with had the distinct opinion that appellant was guilty. When he told a friend that he was going to go to court to testify, the friend became highly irate that he planned on showing up and told him that they ought to shoot appellant first and try him later.

Bill Hayes, manager for Southwestern Bell Telephone Company, a resident of Sebastian County testified on direct that he felt like appellant could get a fair trial. On cross-examination he admitted that from the news media he got the information relative to appellant's background I. e. he was just recently released from Leavenworth Penitentiary and that he was wanted in South Carolina for two murders. He then testified that in his conversations with 75 or 100 people, there were some that did say what they thought ought to happen to appellant. Some felt like he ought to be executed. He heard enough comment that the people he conversed with were surprised that appellant was brought in alive.

Jack Ragains testified on direct that in his opinion appellant could receive a fair trial. On cross-examination he stated that he had heard from the news reports that appellant had been in the penitentiary. He had heard about appellant being wanted in South Carolina for two murders. From what he heard and read in the case everything indicated that appellant had committed the crime. He would rather see appellant tried where he committed the crime. People he had discussed it with had expressed the opinion that appellant was guilty. None of his customers had a different opinion.

Ron Strumbaugh, a State Farm Insurance Agent, testified on direct that he thought appellant could receive a fair trial in Sebastian County. On cross-examination Mr. Strumbaugh admitted that from the news media he was familiar with appellant's background and stated that he thought the defense in appellant's case was unpopular.

In all the trial court heard six witnesses on behalf of appellant testify that appellant could not get a fair trial and 24 witnesses for the State who stated on direct examination that appellant could get a fair trial. On cross-examination each witness for the State testified much like Bill Hayes, Jack Ragains and Ron Strumbaugh. At the end of the testimony the trial court denied the motion for a change of venue. Following the selection of the jury and the two alternates, appellant again raised his motion for a change of venue and again it was denied.

The record shows that in the voir dire of the jury 62 prospective jurors were questioned. Twenty-three jurors were excused for cause. Appellant exhausted his twelve peremptory challenges and moved to excuse for cause eleven of the twelve jurors selected. In selecting the two alternates appellant exercised his one peremptory challenge and the trial court excused eight for cause. Every juror selected to try appellant except G. C. Whitfield knew appellant's background from the news media. Juror Phyllis Russell stated that from the media she knew that appellant had been in prison. She also remembered that appellant was wanted for questioning. She had the opinion that appellant did it. She couldn't say whether or not these things she had heard would have any effect on her verdict. She didn't think she could say that it would not have any effect.

Typical of the jurors excused for cause is Mrs. Clarence Anderson who stated "I have my mind made up and I don't believe I can change my opinion." Another example is Herman Yandell who stated that he had heard other people say that the officers caught appellant right in the act and that they didn't see how appellant could be anything other than guilty. He concluded that those conversations would color his verdict. Along this same vein is the testimony of Mary Ellen Jesson (excused by the State) that perhaps some of this information she had obtained before coming to court would influence her in some way if she were selected as a juror.

Among the jurors peremptorily challenged by appellant were Hubert Davis and Wanda Foster. Hubert Davis had worked for the same company with the father of Officer Basnett for 17 years. Since Officer Basnett's death, he had told his father he was sorry to hear it. Wanda Foster had worked at the United States Marshall's Office for the last eight and one-half years. Robert Taake stated that he could not be one hundred percent sure that he would not let the news media information affect his verdict.

We agree with the State that the trial court has wide discretion in deciding whether to grant a change of venue and that unless the trial court abuses its discretion, the trial court's order is conclusive on appeal. We also agree with the State that the burden of proof is upon the defendant moving for a change of venue to make credible proof to support his motion. However, when we view the record before us as it appeared when appellant renewed his motion for a change of venue after the jury was selected, we must hold that the trial court abused its discretion in denying the motion for a change of venue. The voir dire of the jury corroborates the testimony of Alan Wooten, Tom Anderson and Robert Taylor that it would be very difficult to find twelve people who could put all of the news media information aside.

POINT II. We also agree with appellant that the trial court, under the circumstances, erred in holding that Hubert Davis, Wanda Foster and Robert Taake were qualified to serve as jurors. In an emotionally packed trial involving the killing of an officer by an ex-convict where the only real issue is a sentence of life or a sentence of death, it can hardly be said that a 17 year co-worker of the father of the slain policeman, who has taken the time to give his condolence to the father, is an unbiased juror. Neither should an employee of a law enforcement agency be considered a competent juror where the killing results from an assault upon an officer of the law while acting in the scope of his employment. Robert Taake did not qualify as an impartial juror, Glover v. State, 248 Ark. 1260, 455 S.W.2d 670 (1970).

We agree with the State that the question of a juror's qualification rests within the sound discretion of the trial court and that the proper test is whether the prospective juror can lay aside his impression or opinion and render a verdict based upon the evidence presented in court. However, where the juror testifies that he is not one hundred percent sure that he can lay aside his previous impressions or opinions, we do not see how any discretion on the part of the court can add any assurance that the verdict will be rendered only upon the evidence presented in court.

POINT III. The evidence showed that at the time of the shooting appellant had in his possession guns and ammunition other than the snub nosed .38 caliber he used to shoot Officer Basnett. Appellant objected to the introduction of these items on the...