Ward v. State, CR

• Decision Date: 20 July 1987
• Docket Number: No. CR,CR
• Citation: 293 Ark. 88,733 S.W.2d 728
• Parties: Ronald WARD, Appellant, v. STATE of Arkansas, Appellee. 86-59.
• Court: Arkansas Supreme Court

Page 728

733 S.W.2d 728

293 Ark. 88

Ronald WARD, Appellant, v. STATE of Arkansas, Appellee.

No. CR 86-59.

Supreme Court of Arkansas.

July 20, 1987.

Samuel Turner, Jr., West Memphis, Joseph B. Brown, Jr., Memphis, Tenn., for appellant.

Steve Clark, Atty. Gen. by Clint Miller, Asst. Atty. Gen., Little Rock, for appellee.

HICKMAN, Justice.

An all white Crittenden County jury convicted Ronald Ward, a 15 year old black male, of murdering three white people and sentenced him to death. All of the peremptory challenges exercised by the prosecuting attorney, eight in this case, were used to strike black people from the jury. We find the state's use of the peremptory challenge violated the Equal Protection Clause of the United States Constitution and denied Ward a fair trial. Therefore, the judgment is reversed and the case remanded for a new trial. Numerous other errors are alleged, and we will address those questions which are likely to arise at the new trial.

Last year, in the case of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the court overruled its decision in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), which allowed a defendant to challenge the exclusion of black people from juries. Swain was overruled because it "placed on defendants a crippling burden of proof." Since Swain, prosecutors have continued the practice of excluding black people from juries through the use of the peremptory challenge. A peremptory challenge can be made for no reason at all; a challenge for cause is usually for actual or implied bias. Ark.Stat.Ann. §§ 43-1919, 43-1920 (Repl.1977). Challenges for cause by either party are unlimited. In a capital case the state has ten peremptory challenges, the defendant 12. Ark.Stat.Ann. §§ 43-1921, 43-1922 (Supp.1985).

In Batson, the court held that a defendant who could make a prima facie case of purposeful discrimination shifts the burden to the state to prove the exclusion of jurors is not based on race. This prima facie case may be made by "showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose." Another way is to demonstrate "total or seriously disproportionate exclusion of Negroes from jury venires." Another example for making a prima facie case is by showing a "pattern" of strikes, or questions and statements by a prosecuting attorney during voir dire.

When a defendant makes a prima facie case, the state must adequately explain the racial expulsion. "Mere general assertions that its official did not discriminate or that they properly performed their official duties" are inadequate explanations. This does not mean black people cannot be struck from a jury. It means that if a defendant makes a prima facie case of intentional discrimination, the state must offer some explanation other than race. The United States Supreme Court ruled the state must "articulate a neutral explanation related to the particular case to be tried." Batson v. Kentucky, supra. The trial judge must undertake a "sensitive inquiry" into the direct and circumstantial evidence available to decide if the state has made an adequate explanation. Batson v. Kentucky, supra.

In this case all of the state's peremptory challenges were used to exclude black people. After about four black persons had been struck by the state, the state complained that the defense had injected race into the proceedings forcing "the state to strike some black jurors or a black juror that they otherwise would not be predisposed to strike ..." The defense ceased those questions, yet the state used its remaining challenges to strike black people.

The trial judge was convinced that the state did not intentionally use its peremptory challenges to keep black people from the jury. But the trial judge did not conduct a "sensitive inquiry" into the matter. He did not require the state to explain why it had excluded the blacks when a motion for a mistrial was made earlier. A motion for a mistrial was repeated after the jury was selected and denied. The trial judge said that the state could or could not, as it saw fit, offer an explanation later.

The state did later explain, for the record, why each black person was excused. Some of the reasons were pretty thin. For example, one lady was excluded because she was unmarried, unemployed and lived on a large farm. The state said she appeared hostile. Henry Williams was struck because he had two children the age of the defendant. The state said the main reason he was struck was because he was "noncommittal." The state said that another juror was struck because an investigation uncovered the fact that her car had been used in cocaine trafficking. This information was not brought out during her voir dire examination. So this was not before the trial judge at the time of his ruling. Another prospective black juror was excused because he referred to Ward as a "child," had read about the case, and heard rumors about it. We will not reiterate all the reasons given to exclude the eight black people, although one or two reasons given were acceptable. On the whole, the state clearly failed in its burden of proof. Actually, some explanations offered by the state were exactly the type of explanations the United States Supreme Court said were unsatisfactory.

Actions sometimes speak louder than words, and any prosecutor who uses all of his peremptory challenges to strike black people better have some good reasons available. We share Justice White's concern that the practice of peremptorily eliminating blacks from petit juries in cases with black defendants remains widespread. Discrimination within the judicial system is of the worst sort. The United States Supreme Court spoke strongly on the matter in Batson v. Kentucky, supra:

The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community. Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice. (Cites omitted.) Discrimination within the judicial system is most pernicious because it is 'a stimulant to that race prejudice which is an impediment to securing to [black citizens] that equal justice which the law aims to secure to all others.'

The best answer the state can have to a charge of discrimination is to be able to point to a jury which has some black members.

The murder victims in this case are two elderly ladies and a young boy. It was especially gruesome. Audrey Townsend, age 72, and Lois Townsend Jarvis, age 76, were found dead in their home in West Memphis, Arkansas, on the morning of April 12, 1985. Chris Simmons, age 12, a great-great nephew of the two ladies, was spending the night with them, which he usually did about once a month. The victims were stabbed many times. There was evidence that one of the women had been raped. A bloody butcher knife, evidently the murder weapon, was found in the kitchen sink. The house had been ransacked. A window had been broken to gain entry. The glass in a storm door was also broken as if entry was first sought through this door. A neighbor heard glass breaking sometime after 12:30 a.m. on April 12. The defendant was seen in the vicinity of the victims' residence about 12:30 a.m. The police began their investigation by talking to neighbors and everyone who was in the locality about the time of the crime.

Ronald Ward was first interrogated on April 16. He was not a suspect, and he was not warned of his rights. His grandmother, Lena Ward, came to police headquarters during his interrogation. Ward made a statement that he saw a fight between a man and a woman at the victims' house. He gave the police a description of the man. The police fingerprinted Ward at the conclusion of their questioning. Both Ward and his grandmother signed a consent to Ward's being fingerprinted. Ward's fingerprints were found on several objects in the house. In fact 21 separate prints of Ward's were found. Ward was arrested on April 18 and questioned again. He admitted he had broken into the house, but he insisted that he was forced to do so by two men. Ward said he left before any of the victims were killed.

Ward testified at trial. This time he said two men, named Tony Boyd and Willie Reed, forced him to enter the house. He admitted he had lied several times in his statements to the police. He said the main person threatening him was Willie Reed. He said he was raped by one of these men and Willie held a gun on him while he had sexual intercourse with one of the women. Ward denied killing any of the victims or seeing them killed.

We will now address the various objections to evidentiary and procedural rulings by the trial court raised on appeal. No argument is made that there was not substantial evidence to support the conviction.

Prior to Ward's bond hearing in municipal court, an attorney, Ken Cook, was appointed to represent him. Cook went into a hallway to talk to Ward and was accompanied by a police officer with a tape recorder. Cook told Ward that their conversation was being recorded. When Cook asked Ward if there was anything Ward wanted him to tell the judge, Ward said: "Umm, somethin' came over me, it's just like--I didn't mean to, just somethin' came over me, somethin' just came over me, made me go in that house and stuff like that, I didn't--I just wasn't myself." The trial judge admitted the statement.

Ward argues that the statement was inadmissible because Ward's counsel was ineffective by not preventing him from speaking in front of the officer. This argument was not made to the trial court. At trial Ward argued the statement was inadmissible under the attorney/client privilege. A.R.E. Rule 502. The trial court ruled the statement was spontaneous and was not intended to be a privileged communication between attorney and client. We do not reach the...