Walker v. State, 5773

• Decision Date: 18 December 1972
• Docket Number: No. 5773,5773
• Citation: 253 Ark. 676,488 S.W.2d 40
• Parties: Charles WALKER, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 40

488 S.W.2d 40

253 Ark. 676

Charles WALKER, Appellant, v. STATE of Arkansas, Appellee.

No. 5773.

Supreme Court of Arkansas.

Dec. 18, 1972.

James R. Howard, of Howard, Howard & Howard, Little Rock, for appellant.

Ray Thornton, Atty. Gen. by James A. Neal, Asst. Atty. Gen., Little Rock, for appellee.

BYRD, Justice.

For reversal of his first degree murder conviction, appellant Charles Walker contends that the trial court erred in failing to declare a mistrial after commenting on the evidence and in failing to permit the jury to pass on the voluntariness of a confession.

The record discloses that during the direct examination of Officer Larry Dill the State, as a prelude to the introduction of a confession, sought to introduce a 'waiver of rights form' signed by appellant. After the trial court overruled appellant's objection thereto, the following occurred:

'THE COURT:

I might make this explanation to you, ladies and gentlemen. While you were in the jury room, outside the courtroom here, I heard all of the evidence that the State had to offer on the voluntariness of this statement and the rights form, and a certain drawing that he made, and it used to be I had to submit the question of voluntariness to the jury; but, the last two or three years ago, I think it was in 1969, the Legislature passed an Act that I should pass on the voluntariness of it, so I have held that this confession--

'MR. TUCKER:

(Interposing) Your Honor, may we approach the bench just a moment?

'THE COURT:

Yes, Sir.

(At this time, counsel for the State and the defendant approached the bench and conferred with the Court, out of hearing of the jury and the court reporter, after which the following proceedings occurred:)

'THE COURT:

I am just telling you what the law is. The question of the voluntariness of the statement won't be up to you. The only question that will be submitted to you is the truthfulness of it and whether or not this man made it. I have already passed on the voluntariness of it, and he has already saved all of his exceptions.

'MR. HOWARD:

If the Court please, at this time I respectfully request a mistrial in this case for the reason that the Court has commented on the evidence.

'THE COURT:

Overruled.'

Our Constitution, Article 7, § 23, provides:

'Judges shall not charge juries with regard to matters of fact, but shall declare the law, and in jury trials shall reduce their charge or instructions to writing on the request of either party.'

In construing this provision in Sharp v. State, 51 Ark. 147, 10 S.W. 228 (1888), we said:

'In all trials the judge should preside with impartiality. In jury trials, especially, he ought to be cautious and circumspect in his language and conduct before the jury. He should not express or intimate an opinion as to the credibility of a witness or as to controverted facts. For the jury are the sole judges of fact and the credibility of witnesses; and the constitution expressly prohibits the judge from charging them as to the facts. The manifest object of this prohibition was to give to the parties to the trial the full benefit of the judgment of the jury, as to facts, unbiased and unaffected by the opinion of judges. Any expression or intimation of an opinion by the judge, as to questions of fact or the credibility of witnesses necessary for them to decide in order for them to render a verdict, would tend to deprive one or more of the parties of the benefits guarantied by the constitution, and would be a palpable violation of the organic law of the state.'

Other jurisdictions in considering the question, State v. Barber, 268 N.C. 609, 151 S.W.2d 51 (1966), and United States v. Fayette, 388 F.2d 728 (1968), hold that the findings of the trial court on the issue of voluntariness should not be referred to in the presence of the jury. Of course the voluntariness of the confession would also affect its weight and credibility. Consequently, the trial court's statements amounted to a comment on the weight of the evidence, and under the circumstances shown above a mistrial should have been granted.

Appellant's other argument has to do with the trial court's refusal to submit the voluntariness of appellant's confession to the jury. On this issue the trial court did not err. Following Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed. 908, 1 A.L.R.3d 1205 (1964), the General Assembly adopted Act 489 of 1965 (Ark.Stat.Ann. § 43--2105 (Supp.1971)), which provides:

'Issues of fact shall be tried by a jury, provided that the determination of fact concerning the admissibility of a confession shall be made by the court when the issue is raised by the defendant; that the trial court shall hear the evidence concerning the admissibility and the voluntariness of the confession out of the presence of the jury and it shall be the court's duty before admitting said confession into evidence to determine by a preponderance of the evidence that the same has been made voluntarily.'

We construe this statute as adopting the so-called 'Wigmore' or 'Orthodox' rule. See 29 Am.Jur.2d, Evidence, § 587. By this rule the trial court determines the voluntariness of the confession--i.e. whether the confession was obtained contrary to the constitutional right against self-incrimination. While this finding by the trial court may affect the ultimate finding of guilt or innocence, it has only to do with the admissibility of the evidence and nothing to do with the weight and credibility to be given to it. The finding on this issue by the trial court occurs only because of the evidentiary rule that excludes evidence obtained contrary to the right against self-incrimination. Of course this finding in no way affects the constitutional right of a defendant to have his case heard on the merits by a jury.

The 'Wigmore' rule also offers the added advantage that such hearings can be held at pretrial conferences and before the jury is empaneled--thus allowing the trial courts to make a better utilization of its time and the time that the jurors are taken from their respective occupations.

In both Brown v. State, 239 Ark. 909, 395 S.W.2d 344 (1965) and Hall v. State, 242 Ark. 201, 412 S.W.2d 603 (1967), we said that a trial court did not err in permitting the jury to pass on the voluntariness of a confession, but as pointed out in a footnote in Brown, supra, it is not necessary that the issue be submitted to the jury.

Reversed and remanded.

FOGLEMAN, J., dissents.

FOGLEMAN, Justice (concurring in part, dissenting in part).

I agree wholeheartedly with the majority's treatment of the procedural question relating to determining the voluntariness of an accused's statement, but I would affirm this conviction. The statement of the judge is so nearly correct, that I have reservations about its being properly classified as a comment on the evidence. The circuit judge clearly recognized that the jury must determine whether the statement admitted in evidence was actually made by the defendant and its 'truthfulness.' In my view, this properly left for jury determination three questions, namely: (1) whether Walker made the statement received in evidence; (2) its credibility; and (2) the weight to be accorded it. All the circumstances surrounding the making of the statement would then have been admissible in evidence. There is no suggestion in the abstracts and briefs that any evidence on the subject was offered or excluded during the course of the trial.

Assuming, however, without conceding, that the statements of the judge to the jury did constitute a comment on the evidence, the reversal of this judgment based upon the failure of the trial judge to declare a mistrial on that account is, in my opinion, totally unjustified. The widely and generally recognized rule is that the declaration of a mistrial is an extreme and drastic remedy, the granting or refusal of which lies in the sound judicial discretion of the trial judge, which should not be interfered with on appeal in the absence of an abuse of that discretion or manifest prejudice to the rights of the complaining party which cannot be otherwise removed. Perez v. State, 249 Ark. 1111, 463 S.W.2d 394; Parrott v. State, 246 Ark. 672, 439 S.W.2d 924; Jackson v. State, 245 Ark. 331, 432 S.W.2d 876; First National Bank of Springdale v. Hobbs, 248 Ark. 76, 450 S.W.2d 298; Schroeder v. Johnson, 234 Ark. 443, 352 S.W.2d 570; Kroger Company v. Burleson, 245 Ark. 371, 432 S.W.2d 847; 88 C.J.S. 96, Trial § 36b. We have said that the award of a mistrial as a means of correcting error should be the exception rather than the rule, and that it is unwarranted unless it is apparent that justice cannot be served by a continuation of the trial. First National Bank of Springdale v. Hobbs, supra; Back v. Duncan, 246 Ark. 494, 438 S.W.2d 690. This principle has been applied to cases in which the motion was based upon alleged comments upon the evidence by the trial judge. Donahue v. Cowdrey, 246 Ark. 1028, 440 S.W.2d 773.

The trial court's necessarily wide latitude of discretion in matters pertaining to the conduct of a trial should never be interfered with on appeal unless abuse in its exercise is manifest. Perez v. State, supra; Petty v. State, 245 Ark. 808, 434 S.W.2d 602; Lewis v. State, 220 Ark. 914, 251 S.W.2d 490; Clements v. State, 199 Ark. 69, 133 S.W.2d 844. We have, in many cases, clearly recognized that error in the trial proceedings is not reversible error unless it is so manifestly prejudicial to a defendant that a proper admonition would not have afforded an adequate cure. Moore v. State, 251 Ark. 436, 479 S.W.2d 857; see also, Lin Manufacturing Company of Arkansas v. Courson, 246 Ark. 5, 436 S.W.2d 472. This rule also applies to statements of the trial judge to the jury. Harper v. State, 249 Ark. 1013, 462 S.W.2d 847; Ford v. State, 222 Ark. 16, 257 S.W.2d 30.

Justice, in this case, would have clearly been served by an admonitory instruction to the jury, telling it to ...