Wainwright v. State, CR

• Decision Date: 29 May 1990
• Docket Number: No. CR,CR
• Citation: 302 Ark. 371,790 S.W.2d 420
• Parties: Kirt Douglas WAINWRIGHT, Appellant, v. STATE of Arkansas, Appellee. 89-79.
• Court: Arkansas Supreme Court

Page 420

790 S.W.2d 420

302 Ark. 371

Kirt Douglas WAINWRIGHT, Appellant, v. STATE of Arkansas, Appellee.

No. CR 89-79.

Supreme Court of Arkansas.

May 29, 1990.

Edward F. Cochran, Bradley, David Malaby, Texarkana, for appellant.

Olan W. Reeves, and John D. Harris, Asst. Attys. Gen., Little Rock, for appellee.

GLAZE, Justice.

Appellant was convicted of capital murder for the robbery and shooting of Barbara Smith, a convenience store clerk in Prescott. He was sentenced to death by lethal injection. On appeal, appellant raises sixteen points for reversal, but we find none of the points have merit.

We first consider appellant's contention that the trial court erred in denying his motion for directed verdict. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). In doing so, we note the state was required to prove (1) the appellant, acting alone or with one or more persons, committed or attempted to commit the crime of robbery; (2) in the course of and in furtherance of that crime or in the immediate flight therefrom, the appellant or a person acting with him, caused the death of Smith under circumstances manifesting an extreme indifference to the value of human life. See Ark.Code Ann. § 5-10-101(a) (Supp.1989). Here, robbery is the underlying felony, so the state had to prove the appellant, with the purpose of committing a theft or resisting apprehension immediately thereafter, employed or threatened to employ physical force upon another. Ark.Code Ann. § 5-12-102 (1987). In reviewing the sufficiency of the evidence, this court views the testimony in the light most favorable to the appellee, and affirms if there is any substantial evidence in support of the verdict. Williams v. State, 289 Ark. 69, 709 S.W.2d 80 (1986).

Although no one saw appellant shoot Smith, witnesses did see the appellant run from the Best Stop convenience store immediately after Smith was shot. Octavia Hardamon, who personally knew appellant, said that she saw appellant leave the store with a pistol in his hand. Pauline Henagen testified that, when she entered the store, she saw Ms. Hardamon. She also saw a tall, young black man, wearing red flowered shorts, leave the store, and while she never identified appellant's face with that of the man who left the store, Henagen did identify the shorts the appellant was wearing when he was apprehended as the ones she saw on the man at the store. Sam Gatlin was outside the store when he saw appellant run from the store and enter a pink Cadillac.

Another witness, Patrick Flenory, age fourteen years, knew the appellant, and recognized him running out of the store and getting in a pink Cadillac, which afterwards was driven in a manner that caused it to almost run over Flenory. Elnora Hopson, whom appellant lived with, stated that, on the day of the crime and at near the time the shooting occurred, appellant entered her house, went into the bedroom, got his clothes and came out "pretty quick." Hopson's grandson later that same evening found checks stamped "Best Stop" in the Hopson house. Best Stop's owner testified that $329.00 in checks and $374.00 in cash were missing.

On the night of the shooting, Hope police officers stopped a pink Cadillac, which contained appellant and two other black males. Appellant was in the back seat of the car, and was wearing the flowered shorts, which were later identified by Henagen. The officers found a .22 caliber pistol, money and a maroon bag in the car's back seat. The pistol had some empty chambers, and although the state could not prove for sure that the gun found in the car fired the shot that fatally wounded Smith, the state's expert witness did say that the fatal round was fired from a pistol just like the one found in possession of appellant.

The foregoing evidence, while circumstantial, clearly supports the state's charge that the appellant killed Barbara Smith in the course or furtherance of a robbery. At this point, we mention that the appellant raised the defense that he did not commit the homicidal act and, in this vein, he mentions that no gunshot residue was found on him, nor was blood found on his clothes. See Ark.Code Ann. § 5-10-101(b). An alleged accomplice, Dennis Leeper, on the other hand, had gunshot residue on his hand. Other evidence, however, indicated appellant may have had time to wash his hands after the shooting when he stopped to pick up his clothes, and that the residue on Leeper's hand could have been caused merely by his having handled the gun after it had been fired. After the state met its burden in proving the elements of capital murder, appellant simply failed to meet his burden of proving his affirmative defense. See Fairchild v. State, 284 Ark. 289, 681 S.W.2d 380 (1984).

Next, we review appellant's claim that the trial court erred in failing to grant a change of venue. Appellant offered three witnesses in support of his request for a new venue. Two witnesses were associated with area newspapers, and they related the various articles published regarding Smith's murder. However, both witnesses opined that the appellant could obtain a fair trial in Nevada County. It was also shown that most of the publicity surrounding this murder ended about two months prior to the date of trial. While the third witness expressed doubts that the appellant could receive a fair trial in the county, she indicated she could be fair if she was selected as a juror. Most of the jurors admitted to some exposure to pretrial publicity, but on voir dire they all announced they could give the appellant a fair trial. Appellant had the burden of showing that a fair trial is not likely to be had in the county, and the trial court's decision on the issue will be upheld unless it is shown the court abused its discretion. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). Again, appellant failed to meet his burden, and the trial court's ruling must stand.

Citing Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), appellant argues error resulted from the trial court's denial of funds for him to hire a psychiatric expert. In Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987), we held that the defendant's right to an examination under Ake is adequately protected by the examination at the state hospital, an institution which has no part in the prosecution of criminals.

The state hospital's evaluation of appellant showed he was competent, but suffered from cocaine abuse. Nonetheless, the trial court informed appellant that it would allow funds for further psychiatric evaluation if he could show it was necessary. Douglas Stevens, a clinical psychologist who subsequently examined the appellant, opined that while the state hospital properly assessed appellant's capacity to stand trial, the hospital did not explore areas that impacted on mitigating circumstances. He said that appellant had an attention deficit disorder with hyperactivity as a child and that this disorder developed into associated behavioral problems, such as problems in conforming his behavior to the requirements of the law. Appellant proffered other testimony by Stevens indicating that Stevens, if paid, would have done more background work which might have resulted in raising the issue of appellant's temporary insanity at the time of the crime.

In sum, the record reflects the appellant was provided $840.00 to pay Stevens for his evaluation even though appellant had been evaluated by the state hospital. Stevens, at trial, conceded that he was not saying that the appellant could not have kept from killing the victim. He added that the appellant was capable of helping his attorney, and he knew the difference between right and wrong.

We cannot say the trial court erred in refusing to furnish the appellant additional funds under these circumstances. We conclude this point by noting the appellant benefited from the funds that the trial court awarded by using Stevens' testimony in the penalty phase of the trial as to appellant's childhood behavioral problems and their effect on the appellant now. Furthermore, Stevens testified that he believed the appellant could benefit from the structured life of a prison.

We next review appellant's claim regarding four statements he gave the police after his arrest on the night of July 29, 1988. His fourth statement was the only inculpatory one. He argues this statement (and the second one) introduced by the state should have been suppressed. In his fourth statement, the appellant admitted that he had been seen leaving the convenience store, and that, if he did anything, he did it himself and the others did not know about what happened. He concluded the statement by saying, "You got me man."

In considering this argument, we must make an independent determination of the voluntariness of a confession, but do not set aside the jury's finding unless it is clearly against the preponderance of the evidence. Jackson v. State, 284 Ark. 478, 683 S.W.2d 606 (1985). Some of the factors we have considered in determining whether a statement was voluntarily made include the youth of the accused, lack of education, low intelligence, lack of advice of constitutional rights, length of detention, repeated and prolonged questioning, and the use of physical punishment. Id. We have stated that conflicts in the testimony as to voluntariness are for the trial court to resolve. Id.

The appellant was read his rights upon his arrest, and before giving his first statement, he initialed and signed the rights form at about 10:08 p.m. on July 29, 1988. On July 30, 1988, at 1:00 a.m., he was shown the previously executed rights form again when he gave his second nonincriminating statement, which read much like his first. Appellant's third statement was more detailed but still was nonincriminating like his first two. Before giving this statement, he executed a second rights form at 5:45 p.m. on July 31.

At 8:45 p.m. on July 31, he volunteered his fourth...