Ward v. State

• Decision Date: 24 February 1992
• Docket Number: No. CR,CR
• Citation: 827 S.W.2d 110,308 Ark. 415
• Parties: Bruce Earl WARD, Appellant, v. STATE of Arkansas, Appellee. 91-36.
• Court: Arkansas Supreme Court

Page 110

827 S.W.2d 110

308 Ark. 415

Bruce Earl WARD, Appellant, v. STATE of Arkansas, Appellee.

No. CR 91-36.

Supreme Court of Arkansas.

Feb. 24, 1992.

Didi H. Sallings, Deputy Public Defender, Little Rock, for appellant.

Kent G. Holt, Asst. Atty. Gen., Little Rock, for appellee.

CORBIN, Justice.

Appellant Bruce Earl Ward was convicted by a Pulaski County jury of the capital murder of Rebecca Doss. The jury imposed the sentence of death by lethal injection. On appeal, appellant raises six allegations of error, most of which are confined to the propriety of the death sentence. While we find no reversible error in appellant's conviction, we agree with appellant that prejudicial error occurred in the trial's sentencing phase. Consequently, we affirm appellant's conviction yet reverse the death sentence and remand for resentencing.

Appellant's initial argument raises two challenges to the constitutionality of the capital murder statute, Ark.Code Ann. § 5-10-101 (Supp.1991). As we have previously addressed appellant's constitutional arguments, our discussion will be brief. First, appellant argues that the homicide statutes' 1989 revisions, which upgraded "premeditated and deliberated" murder from first-degree murder to capital murder, violate the constitutional prohibition against sentencing guidelines that fail to sufficiently narrow jury discretion in death penalty cases.

Under Ark.Code Ann. § 5-4-604 (Supp.1991), the death penalty may not be imposed unless the state can prove the existence of an "aggravating circumstance." In O'Rourke v. State, 295 Ark. 57, 746 S.W.2d 52 (1988), we emphasized the following language from the Supreme Court's decision in Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988), where the Supreme Court explained that, in order to genuinely narrow the class of persons eligible for the death penalty, a state may choose between two capital sentencing schemes:

The legislature may itself narrow the definition of capital offenses, ... so that the jury finding of guilt responds to this concern, or the legislature may more broadly define capital offenses and provide for narrowing by jury findings of aggravating circumstances at the penalty phase.

O'Rourke, supra, 295 Ark. at 64, 746 S.W.2d at 56 (quoting Lowenfield, supra, 484 U.S. at 246, 108 S.Ct. at 555).

Under Arkansas' revised capital sentencing scheme, the constitutionally-required narrowing function is provided by the "aggravating circumstance" requirement at the penalty phase. Since appellant would not have been eligible for the death penalty in the absence of any aggravating circumstance, we find that the sentencing scheme passes constitutional muster.

Appellant's second constitutional challenge is that the elements of "premeditated and deliberated" capital murder, section 5-10-101(a)(4), and the elements of "purposeful" first-degree murder, Ark.Code Ann. § 5-10-102(a)(2) (Supp.1991), impermissibly overlap. We have previously rejected this argument based on the same rationale we have used to uphold capital felony murder and first degree felony murder. Smith v. State, 306 Ark. 483, 815 S.W.2d 922 (1991). As long as there is no impermissible uncertainty in the definitions of these offenses, the mere existence of any overlapping does not render a statute constitutionally infirm. Sellers v. State, 300 Ark. 280, 778 S.W.2d 603 (1989); White v. State, 298 Ark. 55, 764 S.W.2d 613 (1989); Cromwell v. State, 269 Ark. 104, 598 S.W.2d 733 (1980).

Appellant's second argument is that the trial court erred in restricting defense counsel's questioning of prospective jurors regarding the jurors' opinions of the death penalty. We have stated that the purpose of voir dire examination is 1) to discover if there is any basis for challenge for cause, and 2) to gain knowledge for the intelligent exercise of peremptory challenges. Bryant v. State, 304 Ark. 514, 803 S.W.2d 546 (1991); Sanders v. State, 278 Ark. 420, 646 S.W.2d 14 (1983); Ark.R.Crim.P. 32.2. According to appellant, the restrictions imposed by the trial judge thwarted appellant's intelligent exercise of his peremptory challenges.

The abstract indicates that defense counsel asked prospective jurors several questions relating to whether they considered "life without parole" a serious penalty. Defense counsel then asked whether the juror believed in the death penalty. The court informed defense counsel that she could ask the jurors whether they were "in favor of or against" the death penalty. However, the court instructed defense counsel not to "go through all this other malarky" before eliciting the jurors' opinions of the death penalty.

The extent and scope of voir dire lies within the trial court's sound discretion, and we will not reverse absent a clear abuse of discretion. Bryant, supra. In this case, the trial court stated that the manner and phrasing of defense counsel's questions amounted to "intimidation." We cannot say that the limited restriction imposed by the trial judge constituted an abuse of his sound discretion. See also Ruiz v. State, 299 Ark. 144, 772 S.W.2d 297 (1989).

Appellant's third allegation of error is that the trial court erred in refusing to suppress incriminating statements and drawings that the police obtained from appellant prior to and subsequent to appellant's arrest. Appellant's suppression argument is divided into two specific sub-arguments: first, he argues that the statements made prior to his arrest should have been suppressed because he made the statements before being informed of his Miranda rights; second, he argues that the evidence obtained after his arrest should have been suppressed because he did not knowingly, voluntarily, and intelligently waive his Miranda rights. In reviewing a trial judge's decision on a motion to suppress, this court makes an independent determination based upon the totality of the circumstances, and we reverse only if the trial court's ruling was clearly against the preponderance of the evidence. Porchia v. State, 306 Ark. 443, 815 S.W.2d 926 (1991).

Several police officers testified about the circumstances surrounding the discovery of the victim's body and appellant's apprehension. Officer Mike Middleton testified that he was on his routine patrol during the early morning of August 11, 1989, when he noticed the absence of a clerk in the Jackpot store on Rodney Parham near Markham. After entering the store, calling for the clerk, and identifying himself as a police officer, Middleton radioed for backup help and exited the store. Middleton then observed appellant approaching from the store's restroom area towards a motorcycle. Middleton requested appellant to "hold on a minute," and informed appellant that the clerk was missing after appellant asked what was wrong. At that point, appellant told Middleton that he had been drinking hot chocolate in the store, that the clerk had given him a key to the restroom, and that the clerk was in the back.

Meanwhile, Officer Stubenrauch, a backup officer had arrived, and Middleton asked Stubenrauch to detain appellant while Middleton reentered the store. Appellant repeated to Stubenrauch the earlier account he had told to Middleton, and also told Stubenrauch that the clerk had instructed him to use the women's restroom. Officer Timmons, another backup officer, arrived shortly thereafter, and proceeded to check the store's restrooms. He found the body of the store's clerk, Rebecca Doss, on the floor of the women's restroom. At that point, appellant was arrested, handcuffed and searched, and advised of his Miranda rights. On the way to the police station, appellant stated that he had not hurt anybody, and again repeated his account of his encounter with the victim.

Appellant next spoke with police officers at approximately 5 a.m. the same morning, when Officers Stafford and Smith approached him in an interview room at the police station. The officers testified that appellant was again advised of his Miranda rights, that appellant understood his rights, and that appellant agreed to talk to the officers on the condition that his statement not be taped. Appellant refused to sign the waiver of rights form, yet told the officers that while he was at the Jackpot store, he had gotten the clerk to help him with the restroom key but had no knowledge of what had subsequently happened to the clerk. Appellant also indicated, on a drawing of the bathrooms, the location of the fixtures in the restroom he had used at the Jackpot store.

Under Ark.R.Crim.P. 2.2, a police officer may request a person to furnish information by answering questions regarding the investigation of a crime. In situations where an officer has a "reasonable suspicion" that a suspect is involved in a crime, Ark.R.Crim.P. 3.1 provides that the officer may stop and detain the suspect for fifteen minutes or for such time as is "reasonable under the circumstances." While appellant argues that the statements made prior to his arrest should be suppressed because he was not advised of his Miranda rights, the Miranda warning is not required unless the statements were a result of custodial interrogation. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988); Shelton v. State, 287 Ark. 322, 699 S.W.2d 728 (1985). See also Weaver v. State, 305 Ark. 180, 806 S.W.2d 615 (1991). The Miranda warning is not required for voluntary, spontaneous statements. Shelton, supra; Hayes v. State, 274 Ark. 440, 625 S.W.2d 498 (1981). In this case, the statements appellant made at the scene were clearly voluntary and spontaneous. As the record indicates that appellant's on-the-scene statements were not elicited by police questioning, the Miranda warning was not required.

Appellant also argues that the statements and drawings he made while in custody should be suppressed because they were a product of police coercion. Appellant testified that he requested an attorney numerous times, and that the questioning...