Ward v. State, 98-657

• Decision Date: 30 September 1999
• Docket Number: 98-657
• Citation: 1 S.W.3d 1
• Parties: Bruce Earl WARD v. STATE of Arkansas CR 98-657 ___ S.W.2d ___ Opinion delivered
• Court: Arkansas Supreme Court

Bruce Earl WARD v STATE of Arkansas

CR 98-657 ___ S.W.2d ___

Opinion delivered September 30, 1999

Supreme Court of Arkansas

Appeal from Pulaski Circuit Court, Seventh Division; John B. Plegge, Judge; affirmed.

1. Appeal & error -- law of case -- doctrine discussed. -- The law-of-the-case doctrine ordinarily arises in the case of a second appeal and requires that matters decided in the first appeal be considered concluded; the doctrine is not inflexible and does not absolutely preclude correction of error, but it prevents an issue raised in a prior appeal from being raised in a subsequent appeal unless the evidence materially varies between the two appeals; the doctrine precludes the trial court on remand from considering and deciding questions that were explicitly or implicitly determined on appeal.

2. Appeal & error -- argument duplicated one previously made --law of case applicable. -- Where appellant's argument was merely a duplication of that previously argued and decided in his first appeal, and the evidence presented at each sentencing trial was materially the same, the supreme court, having already considered and decided the same argument raised by appellant, held the prior decision with regard to that matter binding.

3. Evidence -- admission of -- trial court's wide discretion. --The trial court has wide discretion in admitting evidence, including that presented during the penalty phase of the trial, and the supreme court will not reverse the trial court's ruling absent an abuse of discretion.

4. Mistrial -- motion for discussed -- when granted. -- A mistrial is a drastic remedy and should only be declared when there has been an error so prejudicial that justice cannot be served by continuing the trial, or when the fundamental fairness of the trial itself has been manifestly affected; the trial court has wide discretion in granting or denying a motion for a mistrial, and absent an abuse of that discretion, the trial court's decision will not be disturbed on appeal; the supreme court defers to the trial court, as it is in a superior position to determine the effect of the remark on the jury.

5. Criminal law -- sentencing -- aggravating-circumstances statute. -- Arkansas Code Annotated § 5-4-602(4) (Repl. 1997) provides in part that in determining sentence, evidence may be presented to the jury as to any matters relating to aggravating circumstances enumerated in Ark. Code Ann. § 5-4-604 (Repl. 1997); the aggravating-circumstances statute is concerned with disclosing whether the defendant's history establishes such a propensity for violence that it will reoccur.

6. Criminal law -- sentencing -- previous commission of another felony considered aggravating circumstance. -- One aggravating circumstance found in Ark. Code Ann. § 5-4-604 is that the defendant previously committed another felony, an element of which was the use or threat of violence; this circumstance may be proved regardless of whether the prior violent felony resulted in a conviction against the defendant; when the prior violent felony has not resulted in a conviction, the State must present evidence showing that the defendant committed the act; even when a conviction exists, however, it may well be folly for the State to rely solely on the prior conviction.

7. Criminal law -- sentencing -- evidence that may be presented to prove defendant's prior commission of violent felony. -- Pursuant to Ark. Code Ann. § 5-4-602(4), the State may present "any matters relating to" the prior violent felony, including the circumstances surrounding the commission of the prior crime, in order to prove the defendant's prior commission of a violent felony that resulted in a conviction.

8. Criminal law -- prior violent felony -- circumstances State is entitled to present evidence to show. -- All the circumstances surrounding a particular crime may be shown, even if those circumstances would constitute a separate criminal act or acts, provided that the criminal acts are intermingled and contemporaneous with one another; the relevance of circumstances that tie the perpetrator to the victim and raise a possible motive for the killing is patently obvious; the State is entitled to present evidence showing circumstances that explain the act, show a motive for killing, or illustrate the defendant's state of mind; moreover, when the purpose of the evidence is to show a motive for killing, anything and everything that might have influenced the commission of the act may, as a rule, be shown; other criminal acts are admissible to prove the aggravating circumstance that the defendant committed a prior violent felony.

9. Evidence -- testimony clearly probative of appellant's participation in previous victim's death -- testimony relevant. -- An out-of-state police officer's testimony was relevant, as it linked appellant to a crime for which he had been convicted, that of voluntary manslaughter; the witness's testimony was clearly probative of appellant's actual participation in the victim's death; had the State not presented evidence of the circumstances of the prior crime, the validity of the jury's finding of an aggravating circumstance would remain contingent upon the other state's not reversing appellant's prior conviction.

10. Mistrial -- admonition to jury usually cures prejudicial statement -- defendant must ask for curative instruction. -- An admonition to the jury usually cures a prejudicial statement unless it is so patently inflammatory that justice could not be served by continuing the trial; it is the defendant's obligation to ask for a curative instruction, and the failure to do so will not inure to his benefit on appeal.

11. Mistrial -- admonition to jury not requested -- no abuse of discretion in trial court's denial of motion for mistrial. -- Because an admonition to the jury that appellant was not convicted of any crime other than voluntary manslaughter and that the testimony could only be considered in explaining the circumstances of the manslaughter conviction would have been sufficient to cure any prejudice that may have resulted from the testimony, and because the appellant failed to request such an admonition, the trial court did not abuse its discretion in denying appellant's motion for mistrial.

William R. Simpson, Jr., Public Defender, by: Tammy L. Harris and Julia B. Jackson, Deputy Public Defenders, for appellant.

Mark Pryor, Att'y Gen., by: Kent G. Holt, Asst. Att'y Gen., for appellee.

Donald L. Corbin, Justice.

Appellant Bruce Earl Ward was convicted of the capital murder of eighteen-year-old Rebecca Doss and sentenced to death by lethal injection. This is the third appeal of this matter. In the first appeal, this court affirmed Ward's capital-murder conviction, but reversed the death sentence and remanded for resentencing. See Ward v. State, 308 Ark. 415, 827 S.W.2d 110, cert. denied, 506 U.S. 841 (1992) (Ward I). The resentencing trial was held on February 9, 1993, resulting in Ward's being sentenced to death again. On appeal to this court, it was discovered that the court reporter responsible for transcribing the second trial had failed to record a number of the bench conferences. Attempts to reconstruct the record proved unsuccessful. As a result, this court reversed the death sentence and remanded the matter for a new sentencing trial. See Ward v. State, 321 Ark. 659, 906 S.W.2d 685 (1995) (per curiam) (Ward II). A third sentencing trial was held on October 27, 1997, in the Pulaski County Circuit Court. The jury sentenced Ward to death, and he appeals. Our jurisdiction is thus pursuant to Ark. Sup. Ct. R. 1-2(a)(2). Ward raises two points for reversal. We find no error and affirm.

As Ward's conviction has already been affirmed by this court, it is not necessary to recite the facts of this crime in great detail. Suffice it to say that on August 11, 1989, Little Rock Police Sergeant Michael Middleton was patrolling the area near the Jackpot convenience store on Rodney Parham Drive. Upon pulling into the parking lot, he noticed that the store's clerk was not at her normal work station. He then went into the store to try and locate the clerk. After he had looked through the store and was unable to find the clerk, Middleton called other officers to assist in the search. In the meantime, Middleton began to check outside the store, near the restrooms. He observed Ward walking from the restrooms toward a motorcycle that was parked nearby. Middleton spoke to Ward and told him that he was looking for the store's clerk. Ward told the officer that the clerk was inside the store, stocking. Ward stated that he had just had a cup of hot chocolate with the clerk and that she had given him the key to the restroom. Moments later, Sergeant Scott Timmons discovered Doss's body lying on the floor of the men's restroom. She had been strangled to death. Ward was arrested and subsequently convicted of the murder.

The State submitted only one aggravating circumstance to the jury, that Ward had previously committed a felony offense involving the use or threat of violence to another person. See Ark. Code Ann. § 5-4-604(3) (Repl. 1997). The prior violent act relied upon by the State was the 1977 homicide of Janet Needham in Erie, Pennsylvania, for which Ward was convicted of the crime of voluntary manslaughter. In addition to a certified copy of Ward's manslaughter conviction, the State introduced photographs of the crime scene and testimony from Detective David Bagnoni, one of two Erie police officers that investigated Mrs. Needham's death.

Ward argues that the trial court erred in allowing the State to present the testimony of Detective Bagnoni and the photographs of the crime scene in lieu of the fact that Ward did not dispute nor challenge his prior conviction of voluntary manslaughter. Ward objected on the grounds that the evidence was not relevant and was highly prejudicial and inflammatory. Relying on this court's holding in Ward I...