Venable v. State

Decision Date12 July 1976
Docket NumberNo. CR75--207,CR75--207
Citation260 Ark. 201,538 S.W.2d 286
PartiesLanny Paul VENABLE, Appellant, v. STATE of Arkansas, Appellee.
CourtArkansas Supreme Court

Don Langston and Hubert Graves, Fort Smith, for appellant.

Jim Guy Tucker, Atty. Gen., by B.J. McCoy, Asst. Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Justice.

Appellant was charged and found guilty of the murder of Donnie Edward Douglas on December 21, 1974, while engaged in the perpetration of the crime of rape of Sherry Douglas in violation of Ark.Stat.Ann. § 41--4702(A) (Supp.1973). He was sentenced to life imprisonment without parole. He seeks reversal of the judgment of conviction on 15 grounds. We find no basis for reversal of this judgment on any of them or on any objection made during the course of the trial. We shall review the points for reversal argued by appellant in the order raised by him and state the facts disclosed by the evidence only to the extent necessary for proper treatment of them.

I

THE COURT ERRED IN REFUSING TO SET BAIL.

Appellant moved that the court set bail pending trial. He admits in argument here that it would have been difficult for him to have made bail in any amount and that his motion was actually an attack upon the constitutionality of our capital felony murder statute's provision for the death penalty. He argues that the death penalty is cruel and unusual punishment contrary to Art. 2 § 9 of the Arkansas Constitution and Amendment Eight to the United States Constitution. We have held the death penalty provision of the act constitutional on similar attacks. Collins v. State, 259 Ark. 8, 531 S.W.2d 13; Neal v. State, 259 Ark. 27, 531 S.W.2d 17; See also, Graham v. State, 253 Ark. 462, 486 S.W.2d 678. Appellant somehow reads the diverse opinions of individual justices of the United States Supreme Court to collectively mandate abolition of the death penalty, at least as embodied in the Arkansas statutes. We do not so read these opinions. See Collins v. State, supra. It seems to us that this is foreclosed by the decisions of the United States Supreme Court in Gregg v. Georgia,--- U.S. ---, 96 S.Ct. 2971, 48 L.Ed.2d --- (1976); Proffit v. Florida,--- U.S. ---, 96 S.Ct. 2960, 48 L.Ed.2d --- (1976); Jurek v. Texas,--- U.S. ---, 96 S.Ct. 2950, 48 L.Ed.2d --- (1976). See Criminal Law Reporter, Vol. 19, No. 13. Be that as it may, any challenge by appellant to the death penalty is moot, because he was sentenced to life imprisonment without parole. Harris v. State, 259 Ark. 187, 532 S.W.2d 423.

II THE TRIAL COURT ERRED IN OVERRULING DEFENDANT'S MOTION THAT JURORS WHO WOULD NOT CONSIDER THE DEATH PENALTY NOT BE EXCUSED FOR CAUSE IN THAT PART OF THE TRIAL AT WHICH

DEFENDANT'S GUILT OR INNOCENCE WOULD BE DECIDED.

III THE COURT ERRED IN OVERRULING DEFENDANT'S MOTION FOR A ONE WEEK CONTINUANCE IN ORDER TO PRESENT EVIDENCE THAT A JURY COMPOSED ONLY OF PERSONS WHO WOULD CONSIDER THE DEATH

PENALTY IS MORE LIKELY TO CONVICT THAN IS A JURY COMPOSED OF

A CROSS SECTION.

IV THE COURT ERRED IN OVERRULING DEFENDANT'S MOTION FOR PAYMENT OF TRAVEL EXPENSES AND WITNESS FEES TO EXPERT WITNESSES WHO WOULD TESTIFY THAT A JURY COMPOSED ONLY OF PERSONS WHO WOULD BE WILLING TO CONSIDER THE DEATH PENALTY IS MORE LIKELY TO

CONVICT THAN IS A JURY COMPOSED OF A CROSS SECTION.

This case was set for trial in March, 1975, but continued until April 28, 1975, in order to permit appellant's attorneys to prepare for trial. On April 24, 1975, appellant moved in limine that prospective jurors who are opposed to, and who would under no circumstances vote for, the death penalty not be excused for cause in that portion of the trial at which the defendant's guilt or innocence was to be determined on the ground that a jury composed of only persons who would consider the death penalty would be more likely to convict him than would a jury composed of a cross-section which included persons who would refuse to consider the death penalty and that trial before a jury composed of persons who would be willing to impose the death penalty would deny him a fair trial and otherwise violate rights guaranteed him by the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution and the due process clause of Art. 2 § 8 of the Arkansas Constitution. By oral amendment, appellant also invoked the constitutional guaranties of right to trial by an impartial jury in the Sixth Amendment to the United States Constitution and Art. 2, § 10 of the state constitution. Motion was denied. In passing, it appears to us that failure to excuse jurors who would be unwilling to consider the death penalty under any circumstances could, in effect, nullify our death penalty statute, because it requires that the same jury which determines guilt also determine the sentence to be imposed in the sentencing stage of a bifurcated trial. See Ark.Stat.Ann. § 41--4710 (Supp.1973). Be that as it may, we find no error in the circuit judge's action on this motion. Basically, the constitutional law on the subject of excusal of jurors for cause because of their unwillingness to consider the death penalty under any circumstances is stated in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) and Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968), decided the same day. The very argument advanced by appellant was rejected in Witherspoon, in the light of information then available to the court. In Bumper, the court also rejected the argument that a jury so selected deprived a defendant of his Sixth Amendment right to trial by an impartial jury. We find no violation of constitutional rights in denial of this motion.

In effect, appellant recognizes the impact of the holding in Witherspoon on his contention, but says that he was prepared to make the showing which was lacking in Witherspoon. On April 24, 1975, at 12:43 p.m., appellant filed his motion for a continuance from April 28 to May 5 to enable him to obtain the attendance of Dr. Daniel Taub, a psychologist of Springfield, Missouri, who he alleged was employed at the Medical Center for Federal Prisoners there. On the same date, appellant filed a motion asking that the court order the Treasurer of Sebastian County to pay the $500 witness fee of Dr. Taub, along with his travel expenses, alleging that this doctor had indicated in a telephone conversation with appellant's attorney that, in the doctor's professional opinion, a jury composed entirely of persons who would be willing to impose the death penalty would be more likely to convict a defendant than would a jury which included some who would not consider the death penalty. It was further alleged that appellant's attorney had attempted, without success, to obtain the testimony of expert witnesses locally and had been informed that no local experts had any experience in the area.

Appellant also moved on April 25, 1975 that the case be continued to May 5, 1975, in order that he might obtain the attendance of Dr. Faye Goldberg, a psychologist, employed by the University of Chicago in Chicago, Illinois, who had indicated in a telephone conversation with appellant's attorney that she held the same professional opinion as that attributed to Dr. Taub and that her opinion would be supported by testimony in accordance with an article written by the witness, a copy of which was attached to the motion. The article was entitled, 'Toward Expansion of Witherspoon, Capital Scruples, Jury Bias, and Use of Psychological Data to Raise Presumptions in the Law' and reprinted from the Harvard Civil Liberties Law Review, Vol. V. No. 1, January, 197, pp. 53--69.

All the motions regarding these points for reversal were heard by the circuit court on April 28.

The granting or denial of a motion for continuance to obtain the attendance of an absent witness lies within the sound judicial discretion of the trial judge, and his action will not be reversed on appeal in the absence of such a clear abuse of that discretion as to amount to a denial of justice. Figeroa v. State, 244 Ark. 457, 425 S.W.2d 516; Thacker v. State, 253 Ark. 864, 489 S.W.2d 500; Freeman v. State, 258 Ark. 496, 527 S.W.2d 623. The denial of a motion which is not in substantial compliance with statutory requirements is not an abuse of discretion.

One of the critical factors in the consideration of such a motion is the diligence of the party seeking the continuance in obtaining the testimony or the attendance of the witness. Ark.Stat.Ann. §§ 27--1403 (Repl.1964), 43--1706 (Repl.1964); Thacker v. State, supra. In denying the motion, the circuit judge pointed out that appellant's attorneys, the Public Defenders, were appointed on January 2, 1975, that the case was continued for one month to permit them to prepare for trial, that he had specifically inquired of the Public Defender's office five or six days before the trial date about any possible motions for continuance and was not informed of any, and that the inquiry was made partially because the judge had been advised that the prosecuting witness was coming from California for the trial and some 20 or 25 witnesses, many of whom did not reside in Arkansas, had been subpoenaed for the April 28 date. Even though appellant's attorney advised the court that he had exhausted all possibilities of locating witnesses in Arkansas who were qualified to testify on the subject and did not learn of the identity or availability of the witnesses sought until after the court's inquiry, we cannot say that the court's implicit finding that there was a lack of due diligence in obtaining the attendance of either witness to support appellant's motion in limine was erroneous.

In order to obtain a continuance because of the absence of a witness, it is necessary that the movant support his motion by affidavit stating what facts affiant believes the witness will prove and not merely the effect of such facts in evidence. In the case of an...

To continue reading

Request your trial
29 cases
  • Giles v. State
    • United States
    • Supreme Court of Arkansas
    • April 11, 1977
    ...in these instances clearly did not violate the rule of Witherspoon v. Illinois, supra, 391 U.S. 510, 88 S.Ct. 1770. See Venable v. State, 260 Ark. 201, 538 S.W.2d 286; State v. Mathis, 52 N.J. 238, 245 A.2d 20 (1968), judgment rev. insofar as it imposed the death sentence and remanded for f......
  • Grigsby v. Mabry
    • United States
    • U.S. District Court — Eastern District of Arkansas
    • August 5, 1983
    ......Mr. McCree was convicted in Ouachita County, Arkansas, in 1978. .         After Mr. Grigsby's conviction, the State waived the death penalty, and he was sentenced to life in prison without parole. After Mr. Hulsey's conviction, a penalty trial was held in front of ... Venable" v. State, 260 Ark. 201, 205-06, 538 S.W.2d 286, 289-90 (1976). See also Giles v. State, 261 Ark. 413, 425-26, 549 S.W.2d 479, 486 (1977). .   \xC2"......
  • Neal v. State, CR
    • United States
    • Supreme Court of Arkansas
    • September 29, 1980
    ...would be haphazard. We adhere to the views we have expressed in Grigsby v. State, 260 Ark. 499, 542 S.W.2d 275 and Venable v. State, 260 Ark. 201, 538 S.W.2d 286. These views are fortified by the decision of the United States Supreme Court in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57......
  • Woodard v. Sargent
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • June 21, 1984
    ...haphazard. We adhere to the views we have expressed in Grigsby v. State, 260 Ark. 499, 542 S.W.2d 275 [ (1976) ] and Venable v. State, 260 Ark. 201, 538 S.W.2d 286 [ (1976) ]. These views are fortified by the decision of the United States Supreme Court in Lockett v. Ohio, 438 U.S. 586, 98 S......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT