Van Cleave v. State
| Decision Date | 28 April 1980 |
| Docket Number | No. CR79-32,CR79-32 |
| Citation | 598 S.W.2d 65,268 Ark. 514 |
| Parties | James Dean VAN CLEAVE, Appellant, v. STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
Michael Dabney, Fayetteville, for appellant.
Dennis R. Molock, Asst. Atty. Gen., Little Rock, for appellee.
Appellant, James Dean Van Cleave, was convicted of capital murder and sentenced to life without parole. He urges seven grounds for reversal that will be set out in order in this opinion.
Debra King was murdered on January 29, 1978, during the course of a robbery. Her death was caused by multiple stab wounds to the chest. During the trial, evidence and testimony were presented which appellant claims were prejudicial. We do not find any of the alleged errors to have been prejudicial for reasons which will be discussed under each ground argued for reversal.
THE TRIAL COURT CLEARLY ABUSED HIS DISCRETION BY UNDULY
RESTRICTING VOIR DIRE EXAMINATION OF JURORS BY
DEFENSE COUNSEL.
During the voir dire examination of the petit jurors, defense counsel and the court repeatedly exchanged heated remarks which caused the defense counsel to feel the court was preventing proper voir dire examination. In effect, they argue they were forced to accept a jury in violation of the Witherspoon rule. The extent of the voir dire examination by either counsel is a matter which generally rests within the sound discretion of the trial court, and we will not reverse such discretionary rulings unless it appears there was a clear abuse of discretion. Fauna v. State, 265 Ark. ---, 582 S.W.2d 18 (1979).
Arkansas Rules of Criminal Procedure, Rule 32.2 (Repl.1977), states as follows:
(a) voir dire examination shall be conducted for the purpose of discovering bases for challenge for cause and for the purpose of gaining knowledge to enable the parties to intelligently exercise peremptory challenges. . . .
(b) . . . The judge shall also permit such additional questions by the defendant or his attorney and the prosecuting attorney as the judge deems reasonable and proper.
Therefore, unless we determine that the trial court abused his discretion in limiting the voir dire examination, we must affirm.
Even before the trial started, this case was fought vigorously on behalf of the appellant. There certainly was no cessation of defense efforts during the voir dire examination. In almost every instance while a juror was being examined, the court interrupted the defense counsel by stating that the court would declare the law and then proceed to ask the prospective jurors if they would follow the court's reasoning. Although this temporarily interrupted defense counsel, it did not prevent them from coming through the side door or back door and eventually gaining all the information they sought. It appears that both the court and defense counsel were too aggressive in this matter; but, after a careful examination of every one of the objections and interruptions, we conclude that the purposes of voir dire on behalf of the defense were effectively carried out by able counsel.
Defense counsel seemed to think they were entitled to use the voir dire for the purpose of getting acquainted with the jurors. They may well get to know a lot about a juror, but they are not free to go in any and all directions for as long as they desire. Even though the trial court attempted to stop voir dire on a number of prospective jurors, they were all questioned rather thoroughly. The alleged errors by the court in curtailing the examination are almost identical with those in Fauna, supra, where we reversed for abuse of discretion. However, in the present case, as previously stated, defense counsel still managed to obtain enough information to make an intelligent decision whether or not to use a peremptory challenge.
The fact that the jurors responded to the court that they would follow the law as given by the court was not sufficient to enable the defense counsel to make a proper determination of whether he should exercise a peremptory challenge as to that juror. Counsel should be allowed leeway to develop the prospective jurors' attitude toward a particular defense.
In the present case the defense was that of not guilty. The questions and interruptions primarily concerned matters which are customarily given by way of instruction at the close of the case. Had the defense been one of insanity, self-defense, or other specific defenses, the latitude granted the appellant in the voir dire examination would have been greater.
Under the particular facts of this case and the defense of not guilty, we do not believe that we can say the court clearly abused its discretion even though the interruptions were more frequent than appeared necessary.
ADMONISHMENT OF COUNSEL IN SUCH A WAY AS TO SUBJECT COUNSEL
WAS BEING QUESTIONED AT THE TIME.
Mr. Pete Estes, Sr. entered the courtroom during the examination of prospective juror Mary Sue Jones. He conferred briefly with Robert R. Estes, one of the active defense attorneys. Mr. Estes, Sr., a member of the firm of Estes, Estes & Estes, talked with Robert Estes about a personal matter. The court instructed Mr. Estes to get a coat and tie on and sit down if he was going to participate in the case. The exchange between Mr. Estes, Sr. and the court was in the presence of only this prospective juror.
We stated in McAlister v. State, 206 Ark. 998, 178 S.W.2d 67 (1944), and quoted with approval in Chapman and Pearson v. State, 257 Ark. 415, 516 S.W.2d 598 (1974):
No principle is better settled than that a judge presiding at a trial should manifest the most impartial fairness in the conduct of the case. Because of his great influence with the jury, he should refrain from impatient remarks or unnecessary comments which may tend to result prejudicially to a litigant or which may tend to influence the minds of the jury.
Where the trial court's remarks may be construed as reflecting upon counsel's knowledge and skill as a lawyer, the rights of an accused are prejudiced and reversal is necessary. McAlister, supra.
We feel it would have been a better practice for the court to have asked Mr. Estes, Sr., to approach the bench and discuss this matter out of the hearing of the prospective juror. But, considering the fact that this juror was excused and did not participate in the case, we do not feel the error was prejudicial.
THE TRIAL COURT ERRED IN REFUSING DEFENDANT ATTORNEY
OPPORTUNITY FOR REHABILITATION OF VENIREMEN WHO
EXPRESSED SCRUPLES AGAINST IMPOSITION OF
THE DEATH PENALTY.
The point argued for reversal here concerns the rehabilitation of veniremen who have expressed scruples against the death penalty. The landmark case is, of course, Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). We believe the Witherspoon rule is confined to cases involving a conviction which carries the death penalty. We recognize appellant's argument that the underlying principle in such matters is the conviction rather than the sentence.
Almost 500 pages of the transcript in this case involved the examination of the 39 prospective jurors. In some instances it appears the court did improperly attempt to limit the questioning by the defense counsel of matters concerning the attitude of the prospective jurors relating to the death penalty. However, the attorneys for the appellant persisted and rather effectively examined each juror to the extent required by Witherspoon, supra.
We adhere to the holding in Witherspoon, supra, that only the most extreme and compelling prejudice against the death penalty, perhaps only or very nearly a resolve to vote against it blindly and in all circumstances, is cause to exclude a juror. The mere disbelief in the death penalty, or conscientious or religious scruples with its infliction, will not automatically disqualify a juror from serving on a particular case. Only in cases where the juror expresses an unwillingness to consider the death penalty under any circumstances will that juror be excused for cause. We think that the Witherspoon decision does not affect the validity of any sentence other than death, nor does it render invalid a conviction as opposed to the sentence.
We held in the case of Tanner v. State, 259 Ark. 243, 532 S.W.2d 168 (1976), that objections to questions pertaining to the death penalty on voir dire of prospective jurors in relation to excusal because of their convictions against the death penalty are mooted when the verdict is guilty and the sentence is life without parole.
It is our opinion that the sentence of life without parole renders the holding in Witherspoon, supra, inapplicable to the present case; therefore, any errors of limitation committed by the court in the voir dire stage of this trial are not prejudicial.
THE TRIAL COURT ERRED IN ALLOWING OFFICER J. D. SNOW TO
ANONYMOUS TELEPHONE CALL HE RECEIVED
CONCERNING THE MURDER.
Officer J. D. Snow was allowed to testify in detail about an anonymous telephone call he received concerning this murder. We think it was improper to allow the officer to testify as to the details of what the anonymous caller told him relating to the manner in which the crime was committed. It was proper to allow Officer Snow to relate the portions of the telephone call which caused him to take the course of action which he subsequently took. He should not have been allowed to give a verbatim account of the entire telephone conversation.
This case is most unusual because after the improper evidence was allowed, the anonymous telephone caller took the stand as a witness and was vigorously and extensively cross-examined about the matters which had been stated previously by Officer Snow. Under these circumstances, we feel the original prejudicial error in allowing...
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