Vowell v. State

• Decision Date: 03 March 1982
• Docket Number: No. CACR81-87,CACR81-87
• Citation: 628 S.W.2d 599,4 Ark.App. 175
• Parties: W. T. VOWELL, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Court of Appeals

Page 599

628 S.W.2d 599

4 Ark.App. 175

W. T. VOWELL, Appellant, v. STATE of Arkansas, Appellee.

No. CACR81-87.

Court of Appeals of Arkansas.

March 3, 1982.

Robert E. Young, Rhine, Rhine & Young, Paragould, for appellant.

Steve Clark, Atty. Gen. by William C. Mann, III, Asst. Atty. Gen., Little Rock, for appellee.

COOPER, Judge.

Appellant was charged in the Greene County Circuit Court with violating Ark.Stat.Ann. § 41-1601 (Repl.1977), first degree battery. It was alleged that he had caused serious physical injury to another person by means of a deadly weapon under circumstances manifesting extreme indifference to the value of human life. Following a jury trial, appellant was found guilty of first degree battery and sentenced to nine years in the Arkansas Department of Corrections. Appellant urges eight grounds for reversal.

I.

THE TRIAL COURT ERRED IN REFUSING TO CONDUCT VOIR DIRE IN

ACCORDANCE WITH ARKANSAS STATUTE § 43-1903.

Appellant's attorney requested that voir dire be conducted in accordance with Ark.Stat.Ann. MR. YOUNG: Your Honor, I would ask that the State of Arkansas interview each juror one juror at a time, then I voir dire the juror, then the State exercise its challenge and then I exercise my challenge.

§ 43-1903 (Repl.1977), and his request was stated as follows:

THE COURT: Well, I am going to overrule that to one slight extent, I am going to let the State examine the jurors, if they want to examine all twelve or one at a time. Whatever they want to do they can do. Now, as far as you are concerned, when it comes your time to examine, you will be allowed to examine the jurors one at a time and then you can submit that person and the State must exercise their option at that time before you go to the next one, but I'm not going to tell the State that they've got to examine each juror one at a time. Now, if you wish to, you certainly may. (T. 34, 35).

The State elected to question the jurors three at a time.

Arkansas Statutes Annotated § 43-1903 states:

Felonies, selection in.-In a prosecution for felony, the clerk, under the direction of the court, shall draw from the jury box the names of twelve (12) petit jurors, who shall be sworn to make true and perfect answers to such questions as may be asked them touching their qualifications as jurors in the case on trial, and each juror may be examined by the State and cross-examined by the defendant, touching his qualifications. If the court decide he is competent, the State may challenge him peremptorily or accept him, then the defendant may peremptorily challenge or accept him. If not so challenged by either party, he shall stand as a juror in the case, and each of the twelve (12) jurors shall be examined and disposed of in like manner. If any of said jurors are disqualified or challenged, the clerk shall draw from the box as many more as may be required, and as often as may be required, until the jury shall be obtained, or the whole panel exhausted.

Both the appellant and appellee cite two recent Arkansas cases on this point, the appellant claiming those decisions require reversal, and the appellee seeking to distinguish them. In Clark v. State, 258 Ark. 490, 527 S.W.2d 619 (1975), the trial court required examination of all twelve jurors by both parties before any peremptory challenges were permitted. After all twelve jurors were examined, the State was required to exercise its peremptory challenges, and then the appellant was required to make his challenges. The Arkansas Supreme Court quoted Ark.Stat.Ann. § 43-1903 (Repl.1964), and then stated:

It can be seen from this statutory scheme that the State is first required to accept or reject an individual juror before the defendant is required to accept or reject an individual juror. A number of cases beginning with Lackey v. State, 67 Ark. 416, 55 S.W. 213 (1900), have consistently given this construction to the statute, supra. The State to sustain this conviction does not contend that the procedure used is authorized by statute but argues that appellant has not demonstrated any prejudice. Of course, the rule is that prejudice is presumed from an error unless the contrary affirmatively appears, Crosby v. State, 154 Ark. 20, 241 S.W. 380 (1922). Furthermore, since the State here exercised 4 of its 6 and the appellant 5 of his 8 peremptory challenges on the first 12 jurors drawn from the panel, it at once becomes obvious that it was an advantage to the State to be able to examine all of the next 9 jurors before exercising its last 2 challenges-i.e., it could peremptorily challenge the least desirable of the nine jurors instead of rejecting them one at a time. Consequently, we must hold that the trial court erred in requiring the appellant to examine all of the jurors drawn from the panel each time before the State was required to either accept or reject a juror.

In Roleson v. State, 272 Ark. 346, 614 S.W.2d 656 (1981), the Arkansas Supreme Court dealt with a situation where "only the State was permitted to voir dire all of the remaining jurors before either party Neither Clark nor Roleson involved exactly the same type voir dire as was done in the case at bar. Clark holds that a defendant may not be required to examine all the jurors drawn from the panel before the State must exercise its peremptory challenges. Roleson holds that where only the State is permitted to voir dire the entire panel, prejudice occurs.

was allowed to exercise peremptory challenges". In Roleson, the Court held that the trial court erred in allowing such a jury selection process because it did not follow Ark.Stat.Ann. § 43-1903 (Repl.1977), nor did it conform to the Court's holding in Clark, supra. The Court pointed out that "(i)n Clark we held a jury selection procedure to be unfair where the State and the defendant were allowed to voir dire all jurors before allowing either party to exercise its peremptory challenges: ..."

In the case at bar, both the appellant and the State were permitted to voir dire as they chose, but peremptory challenges were to be exercised one at a time with the State going first. Thus, it appears that neither Clark nor Roleson are exactly in point. This case presents for the first time the precise question of whether, following a timely objection, voir dire of more than one juror at a time by the State is to be permitted. It is clear that the trial court in this case set out the correct procedure for the exercise of peremptory challenges, i.e., following voir dire, the State is required to exercise its peremptory challenge as to a juror and then, if the juror is accepted by the State, the defense must exercise its peremptory challenge.

Although the statute in question is capable of being interpreted in more than one way regarding voir dire, we believe that the Arkansas Supreme Court has, through Clark and Roleson, effectively disposed of this issue, even though this precise issue was not decided. If, as in Clark, it is unfair to require voir dire of all jurors by both sides prior to the exercise of peremptory challenges and if, as in Roleson, the State has an unfair advantage by being the only party allowed to voir dire all the jurors, then it certainly can be no less of an advantage for the State where the State is allowed the choice as to the number of jurors it wishes to voir dire at a time. Both Clark and Roleson indicate that the advantage to the State is bottomed on the idea that it is able to look ahead at the next group of jurors and select the least desirable in exercising its peremptory challenges. That advantage exists whether the State voir dires three, six, nine, or twelve, at a time since the State would have the information regarding the least desirable juror in that group at the time it began to exercise its peremptory challenges. The advantage to the State and disadvantage to the appellant cannot, under the holdings in Clark and Roleson, be alleviated by allowing the State to choose the number of jurors it wishes to voir dire and allowing the same choice to the appellant. This allows the State to place itself in an advantageous position, i.e., it could peremptorily challenge the least desirable of the group of jurors instead of rejecting them one at a time. Therefore, we hold that, upon a timely request, voir dire of jurors in felony cases must be conducted one at a time, followed by a peremptory challenge as to that juror by the State, and then if that juror is accepted by the State, a peremptory challenge by the defendant. This case must be reversed and remanded for a new trial.

II.

THE TRIAL COURT ERRED IN ALLOWING INTO EVIDENCE SEVERAL

PRIOR D. W. I. CONVICTIONS OF DEFENDANT (APPELLANT).

In this case, the first degree battery charge was based on an automobile accident between appellant's vehicle and a van. The evidence indicated that appellant was intoxicated at the time of the accident, that he had crossed the center line, and that he collided with the van on the shoulder of the road adjacent to the lane in which the van had been traveling, seriously injuring one of the occupants of the van. During cross-examination by the State, appellant admitted (b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

that he had been convicted of three prior D.W.I.'s. The trial court allowed this line of questioning under the Uniform Rules of Evidence, Rule 404(b), Ark.Stat.Ann. § 28-1001 (Repl.1979), which provides:

This rule permits evidence of other criminal activity if it has relevance independent of a mere showing that the appellant is a bad person. Price v. State, 268 Ark. 535, 597 S.W.2d 598 (1980); Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954). Even...