Walton v. State, CR

• Citation: 279 Ark. 193,650 S.W.2d 231
• Decision Date: 09 May 1983
• Docket Number: No. CR,CR
• Parties: Clarence WALTON, Appellant, v. STATE of Arkansas, Appellee. 82-136.
• Court: Supreme Court of Arkansas

Page 231

650 S.W.2d 231

279 Ark. 193

Clarence WALTON, Appellant, v. STATE of Arkansas, Appellee.

No. CR 82-136.

Supreme Court of Arkansas.

May 9, 1983.

Jesse E. Porter, Jr., West Helena, for appellant.

Steve Clark, Atty. Gen. by Victra L. Fewell, Asst. Atty. Gen., Little Rock, for appellee.

HICKMAN, Justice.

Clarence Walton was charged with the rape and attempted capital murder of a mother of four who clerked in a twenty-four hour convenience store called the Jr. Food Mart in Marianna, Arkansas. He was convicted on both counts and sentenced to life imprisonment for the attempted murder, and fifty years and a $15,000 fine for the rape, the sentences to be served consecutively.

On appeal he argues that seven errors were committed. We find one of them meritorious. Sarah J. Hood, who ultimately served as foreman of the jury, was challenged for cause and the court should have sustained the challenge. Not doing so was prejudicial error which requires us to reverse the judgment and remand the cause for a new trial.

On May 29, 1981, at about 3:30 A.M., the victim, while working at the store, was violently assaulted and raped. Walton, eighteen, was charged with the offense. He is black and the victim is a white woman.

His first trial resulted in a mistrial because the jury was unable to reach a verdict. The jury impaneled for a second trial was ordered quashed by the trial court when it was challenged by Walton's attorneys. That jury was selected by jury commissioners rather than by random selection using a jury wheel in accordance with Ark.Stat.Ann. § 39-205.1 (Supp.1981). A total of forty-four jurors were examined, seventeen were excused by the court for various reasons, and the jury was selected only after individual voir dire examination in the judge's chambers. The trial judge was careful in the formation of the jury which heard Walton's case. But, even so, we are satisfied that the trial court abused its discretion in allowing Mrs. Hood to sit on this jury because the record reflects that Mrs. Hood was simply not candid with the court. There is no question that a proper motion to strike her for cause was made; all the appellant's peremptory challenges had been exhausted.

Mrs. Hood is a teacher at a private school in Lee County. She brought her government class to the second day of Walton's first trial and evidently was present during most of the day. We cannot be certain from the record exactly what she heard in the way of testimony, because she was somewhat vague about it and denied any knowledge of what actually transpired. She did say that she and her class had discussed the case, but explained that the discussion was mostly about the procedural aspects of the trial. Mrs. Hood had been a teacher of the deputy prosecuting attorney. She said she wanted to serve on the jury because she never had been a juror. No doubt this desire affected her answers to questions about her qualifications.

Mrs. Hood's initial examination by the court reads:

BY THE COURT:

Q. Good morning, Mrs. Hood.

A. Good morning.

Q. Mrs. Hood, this is the case of the State of Arkansas against Clarence Walton. He is charged with rape and attempted capital murder. This is a criminal trial. The charge alleges that on or about May the 29th of last year that he committed these two offenses. The victim was __________. Mrs. Hood, do you know anything about this case?

A. I have no personal knowledge of the case, no, sir.

Q. Have you read anything about it in the local newspaper?

A. Yes, sir.

Q. From what you have read about it in the newspaper, have you formed any opinion about this case one way or the other?

A. No, sir, I have not.

Q. Have you heard anybody discuss the case where you work, or in your home, or throughout the community?

A. No, sir.

Q. Have you heard any talk about the case in the community at all?

A. Just casual conversation.

Q. From the casual conversation that you may have heard about this case, have you formed any opinion, Mrs. Hood?

A. No, sir, I have not.

Q. Mrs. Hood, Clarence Walton is sitting at the table here this morning. Do you know Clarence Walton?

A. No, sir.

* * *

Q. As you sit here this morning, Mrs. Hood, do you have anything that is running through your mind that you think you ought to tell me or the lawyers that might in some fashion affect your ability to be a fair and impartial juror no matter what it is, legal, moral, or anything?

A. No, sir.

(Emphasis added.)

She was next examined at length by the prosecutor and she did not reveal that she had heard one day's testimony in the first trial. She did not disclose this until she was examined by the defense attorney. Then, in response to a direct question, she answered that she had indeed been in the court room with her government class at Walton's first trial and had listened to testimony for one full day. She obviously should have volunteered this information to the trial court when initially examined. The judge refused to strike her for cause, but the record reflects that the trial judge did not accurately remember her first answers because he did not think she had been evasive. The defense attorney said:

Your Honor, I believe, as the court inquired of Mrs. Hood, she indicated that she had not heard any testimony of the case other than possible talk; is that correct, when she first started talking?

The court replied:

I can't honestly say. That is the forty-second juror we have questioned, and I have asked all of them if they know anything about the case, and she indicated she knew something and could set it aside. What her precise answers were, I do not know.

Clearly, the court did not recall that Mrs. Hood had been deceptive in her answers to the court's questions. In our judgment her answers were not truthful and, in view of that, she should not have been allowed to sit on this jury. We do not imply that if a prospective juror is aware of testimony in a case he can never be allowed to sit as a juror. See Holland v. State, 260 Ark. 617, 542 S.W.2d 761 (1976). However that is not the situation presented here. The case before us involves a prospective juror, who later served as foreman of the jury, who was not candid with the court. She knew a considerable amount about the case, or she certainly could have; she did or could have easily formed some opinions from hearing evidence at the first trial which could have influenced her judgment of the case. When examined closely about what she heard, all her answers were phrased to deny any knowledge that would disqualify her. She expressed a special desire to serve on the jury because she had always wanted to serve on a jury, had been a registered voter for at least twenty-one years, and never been called. She thought it would be quite an experience. Perhaps that desire affected her answers. But it was not until she was specifically asked whether she attended the first trial did she answer candidly. We cannot easily overlook this fact simply because she said she could set aside any conceptions, information or opinions she may have had. While a venireman is generally "impartial" when he states that he can put aside any preconceived opinions and give the accused the benefit of all doubts that the law requires, it is not an automatic cure-all for opinions, relationships or information that could disqualify one. Glover v. State, 248 Ark. 1260, 455 S.W.2d 670 (1970). Art. 2, § 10, Ark. Const. See also Ark.Stat.Ann. §§ 43-1919, 43-1920. In Glover v. State, supra, we independently reviewed the voir dire examination and found it error to allow four jurors to be seated who said they could set aside opinions they held about the guilt of the defendant.

And in Swindler v. State, 264 Ark. 107, 569 S.W.2d 120 (1978) and Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980), we found error in the court's decision to allow jurors to serve who in our judgment could have been biased because of certain relationships. In both cases the jurors said they could put aside their personal feelings, or be objective. Some opinions and relationships cannot be overcome by a mere recitation by the prospective jurors that they will set aside objectionable factors. And we have reversed cases where a juror deliberately withheld information. Baysinger v. State, 261 Ark. 605, 550 S.W.2d 445 (1977); Bryant v. Brady, 244 Ark. 807, 427 S.W.2d 179 (1968).

We have said that statutes concerning qualifying a juror must be liberally construed to safeguard the guarantee of an impartial trial. "The polestar should be brighter and more clearly visible in a criminal case than in a civil one," and "justice ought not only to be fair, but appear to be fair." Beed v. State, supra. In view of Mrs. Hood's answers we can only conclude she should not have been allowed to serve.

Other issues that we must discuss will be dealt with briefly. It is argued three other prospective jurors should have been excused for cause, but we need not examine that claim since they were excused peremptorily.

There was substantial evidence to support the finding that Walton was guilty of rape and attempted capital murder. The victim was brutally assaulted in the store, dragged a considerable distance, and beaten about the head and face; she was raped, and according to her testimony, she was strangled with a belt and survived only because the blood from her wounds made the belt slippery enough for her to remove. She said that she knew the man who raped her, that he had been in the store several times to buy magazines. Walton only lived about 200 yards from the store, and was seen in the store close to the time of the rape by at least one witness. This was about 3:00 A.M.

The trial court's ruling that the victim's in-court identification of the defendant was admissible was not error. The trial court was careful to limit the State's use of the identification evidence so that no prejudicial evidence would be admitted. No mention was to be made by the State...