Ward v. State

827 S.W.2d 110 (1992) 308 Ark. 415

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

No. CR 91-36.

Supreme Court of Arkansas.

February 24, 1992.

Didi H. Sailings, 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.W2d 14 (1983); Ark.R.Crim.P. 32.2. Accordingto 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 subarguments: 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 onthe-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 officers attempted to coerce a confession by cajoling him and threatening him with a "taser" or stun gun. Appellant's suppression argument also relies on the fact that appellant did not sign a waiver form before making his custodial statements and drawings.

We have held that the failure to obtain an explicit waiver of rights form will not necessarily preclude a voluntary confession. Cope v. State, 293 Ark. 524, 739 S.W.2d 533 (1987). Rather, a confession may be upheld on the basis of an implied waiver. Id.; Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987). In this case, the trial judge heard considerable police testimony regarding the circumstances of appellant's custodial statements and drawings. While appellant's version of the circumstances differs considerably from that of the officers', we have held that any conflict in witnesses' testimony is for the trial court to resolve. State v. Massery, 302 Ark. 447, 790 S.W.2d 175 (1990); Smith v. State, 296 Ark. 451, 757 S.W.2d 554 (1988). Given the significant amount of evidence presented to the trial judge regrding the essential elements of a valid waiver, we find no clear error in the trial court's refusal to suppress.

Appellant's last three arguments for reversal allege errors in the sentencing phase of the trial. His fourth allegation of error is that the trial court erred in allowing the state to introduce photographs and police testimony concerning appellant's prior conviction of voluntary manslaughter in Pennsylvania. Under Ark.Code Ann. § 5-4-604(3) (Supp.1991), proof that a defendant previously committed another felony involving violence establishes an aggravating circumstance, rendering the defendant eligible for the death penalty. In this case, appellant does not dispute that his prior manslaughter conviction constituted an aggravating circumstance. However, he argues that undue prejudice resulted from the admission of photographs and testimony concerning this prior conviction because the state could conclusively prove an aggravating circumstance with the prior conviction alone. We disagree.

In Johnson v. Mississippi, 486 U.S. 578, 108 S. Ct. 1981, 100 L. Ed. 2d 575 (1988), the Supreme Court held that a finding of aggravating circumstances based on a prior felony conviction could not stand if the prior felony conviction was later overturned. The Supreme Court noted that the prosecutor in Johnson had relied solely on the document of conviction, and had not introduced any evidence relating to the prior felony itself. Id. at 585, 108 S. Ct. at 1986. We recently relied on the Johnson holding in Sanders v. State, 308 Ark. 178, 824 S.W.2d 353 (1992), to remand a death sentence for resentencing. In the Sanders case, the state relied solely on the defendant's prior conviction to establish the aggravating circumstance of a previous felony.

In this case, if the state did not introduce evidence regarding the circumstances of appellant's prior manslaughter conviction, the validity of the jury's aggravating circumstances finding would remain contingent upon Pennsylvania not reversing appellant's prior conviction. In light of the Johnson holding, the probative value of the extraneous evidence increases significantly. However, we must still determine under Ark.R.Evid. 403 whether the probative value of the photographs and testimony is substantially outweighed by the danger of unfair prejudice.

We have held that the question of prejudicial effect versus probative value is a matter addressed to the discretion of the trial judge. Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988); Harris v. State, 295 Ark. 456, 748 S.W.2d 666 (1988). On appeal, this court will not disturb the trial court's decision in the absence of manifest abuse of that discretion. Bennett, supra. We have repeatedly applied our deferential standard of review to the admission of photographic evidence, Quails v. State, 306 Ark. 283, 812 S.W.2d 681 (1991); Robinson v. State, 269 Ark. 90, 598 S.W.2d 421 (1980), and stated that photographs will not be excluded simply because they are gruesome. Williams v. State, 267 Ark. 527, 593 S.W.2d 8 (1980).

In this case, the photographs depicted the body of a young woman, naked from below the torso, lying in a wooded area with the contents of her purse strewn out beside her. These photos are not particularly gruesome and are black and white. A Pennsylvania police officer testified to finding the body and to the condition of the body. He testified that the woman had marks on her neck and that the scraped condition of her knuckles indicated that she had been dragged. He further testified to discovering a photograph of appellant and appellant's phone number when he examined the contents of the victim's purse.

In this case, the photographs and testimony were relevant in establishing the aggravating circumstances of a previously committed felony, and in illuminating the facts for the jury's consideration. We discern no abuse of discretion.

Appellant's fifth allegation of error is that the trial court erred in admitting a collection of Pennsylvania documents relating to appellant's prior manslaughter conviction. State's Exhibit No. 18 contained a felony information charging appellant with murder, and an affidavit alleging that appellant raped and robbed the Pennsylvania victim. We agree with appellant that the admission of these unsubstantiated allegations was prejudicial error in the penalty phase of the trial.

The state offered no proof that appellant had previously committed the offenses of murder, rape, and robbery. While we stated earlier that the state is not limited to admission of a prior conviction in proving that a defendant previously committed a prior felony, mere allegations do not constitute proof. Walker v. State, 304 Ark. 393, 803 S.W.2d 502 (1991). In this case, the prejudicial effect of the rape and robbery allegations was compounded by the photographs depicting an unclothed victim and the testimony regarding the strewn contents of the victim's purse.

During oral argument before this court, the state conceded error but contended that the erroneous admission of the allegations was harmless. Under Ark.Code Ann. § 5-4-603 (Supp.1991), a majority of this court may use harmless error to affirm a defendant's death sentence only if we can ultimately conclude that the error would not have changed the jury's decision to impose the death penalty. In Sanders v. State, 308 Ark. 178, 824 S.W.2d 353 (1992), we refused to find harmless error in the defendant's death sentence because we could not conclude that, absent the error, the jury would have still imposed the death penalty. In this case, as in Sanders, our finding of error does not affect appellant's eligibility for the death sentence. However, we cannot conclude that the jury would have found that the aggravating circumstance of appellant's previous felony justified a sentence of death if the jury had not been exposed to the unsupported allegations. Consequently, we reverse on this point and remand for resentencing. Id.; Wilson v. State, 295 Ark. 682-A, 752 S.W.2d 762 (1988).

We find no merit to appellant's final allegation of error. Appellant argues that the jury erred in finding no mitigating circumstances because appellant proved, as a matter of Pennsylvania law, that the definition of voluntary manslaughter includes the phrase "acting from serious provocation by the person killed."

Ark.Code Ann. § 5-4-605 (1987) provides a nonexclusive list of mitigating circumstances that the jury may consider. The list set out in section 5-4-605 consists of circumstances relating to the capital offense for which the defendant is being sentenced. While this list is not exclusive, and a defendant may submit other circumstances for the jury's consideration, we reject appellant's argument that the jury is compelled to find a mitigating circumstance based simply on the definition of the prior offense that established the aggravating circumstance. As appellant offers no authority to support his novel contention, we find no error in the jury's finding of no mitigating circumstances.

The record has been examined pursuant to Ark.Sup.Ct.R. 11(f) and find no additional prejudicial error. For the reasons stated above, we affirm appellant's conviction but reverse the death sentence and remand for resentencing.

HOLT, C.J., and DUDLEY and NEWBERN, JJ., dissent in part; concur in part.

HAYS, J., concurs in part; dissents in part.

HAYS, Justice, concurring in part, dissenting in part.

The majority concludes that prejudicial error occurred in the penalty phase of the trial because State's Exhibit 18 contained references to murder, rape and robbery, whereas appellant was convicted of voluntary manslaughter. As to the charge of murder, no error can be assigned to this point. Page five of the exhibit (the verdict) was admitted without objection. It reads in part: "We the jury find the defendant, Bruce Earl Ward, on the charge of:

Murder:_______________________________ Voluntary Manslaughter GUILTY _________________ Involuntary Manslaughter:_____________

Thus the jury's awareness of the charge of murder was not preserved for review for the lack of an objection. Moreover, Officer Dominic DiPaolo of the Erie Police Department testified, without objection, that Janet Needham was strangled with the strap of her own purse. In fact, it was undisputed that appellant was charged with murder but the jury convicted on voluntary manslaughter. Thus no claim of error can be grounded on the fact that the appellant was charged with murder.

As to rape and robbery, those were never issues in this case. They were never argued to the jury at any point, indeed, were never mentioned. The only reference to either throughout this record is buried in the fine print within a five page photocopy which is for all practical purposes illegible. (See attached). There is nothing to indicate the jury was even aware of them and, as counsel for the appellant noted (referring to this segment of Exhibit 18), "It takes a legal scholar to decipher all that." The state was not attempting to show that appellant was charged with rape or robbery. The state was attempting to show, as an aggravating circumstance, that appellant had committed a previous felony involving violence, and did so simply by offering a certified copy of his conviction papers from Pennsylvania where that conviction occurred.

When the exhibit was offered, the appellant readily agreed that pages four and five were admissible and made only a general objection to the relevancy of the remainder of the exhibit, although the trial court pointedly invited specific objection:

THE COURT: Any objection? [Counsel for Defense] Your Honor, I'd like to look at them.

(Thereupon, there was a pause in the proceedings; then the following proceedings occurred:)

THE COURT: Any objection? COUNSEL: Your Honor, I do have some.

THE COURT: On what grounds? COUNSEL: Your Honor, I think part of the State's exhibits would be inadmissible as to relevancy. They've clearly got a conviction and I think that, of course, would come in.

THE COURT: Well, let's take them one at a time and be specific.

The first one apparently is a certified copy of the judgment that you have admitted that he got convicted of. Right? COUNSEL: It's more than that, your Honor. It's the other material that we would object to.

THE COURT: Let me see the judgment.

Specifically what is your objection to this?

COUNSEL: The first few pages, your Honor. I don't see that they're relevant. I mean clearly they have the judgment and commitment order and conviction of voluntary manslaughter. It takes a legal scholar to decipher all that. I think they've got it in the last two pages. And I have no problem with the last two pages.

THE COURT: Well, without going through this, is this the information, charging—

MRS. LaRUE: That's the information that was filed.

THE COURT: That's already before the jury. You asked about it. You asked on redirect that he was disappointed that he didn't get more.

I don't know what the prejudice is. They know this. So, if your only objection is relevancy—

COUNSEL: Your Honor, I think it's confusing to the issue.

THE COURT: Well, they probably couldn't understand this. And, if your objection is relevancy, I'll overrule it. COUNSEL: That's my objection, your Honor.

THE COURT: Okay. I'll let it in for whatever weight they want to give it. His conviction for voluntary manslaughter is admitted. And that's what this purports to prove by the rules of evidence. So, we'll let that in. [My emphasis.]

Had counsel objected because the state had not offered evidence of rape or robbery and it would be prejudicial to the appellant for that part of the exhibit to be admitted, the alleged error might well have been averted. The incident illustrates why our cases recognize the need for specific objection so that trial errors will not occur by inadvertence. The case of Moore v. State, 304 Ark. 257, 801 S.W.2d 638 (1990), is instructive. The court had granted a motion to suppress the statement of a codefendant implicating the appellant in various crimes, and appellant argued on appeal that the trial court erred in then admitting the statement. We said that there was no showing that appellant had requested that specific or implied references to her be expunged before introduction of the statement. "It cannot be said the entire statement [of the co-defendant] was inadmissible; therefore, the appellant had the burden of pointing out any alleged inadmissible portions at or prior to the admissions of the statement."

As to the robbery, there is an additional reason why no error occurred. There was evidence of robbery properly before the jury from sources independent of Exhibit 18. Officer DiPaolo testified that Ms. Needham's purse was opened and its contents were scattered near her body. Other contents, including the appellant's photograph, had been thrown down a window well near where the body was discovered.

State's Exhibit 16 depicts a scene consistent with that testimony. That evidence would, I suggest, support a conviction of robbery, it will certainly support the lesser standard of evidence applicable to the penalty phase.

The state is not required to prove the appellant was convicted of robbery in order to submit the aggravating circumstance to the jury—only that he committed the felony. Arkansas Code Ann. § 5-4-604 (Supp.1990). Moreover, we have held that any evidence, even slight, of an aggravating circumstance justifies submitting that issue to the jury. Wainwright v. State, 302 Ark. 371, 790 S.W.2d 420 (1990); Miller v. State, 269 Ark. 341, 605 S.W.2d 430 (1980). The state was entitled to prove the circumstances of the previous crime relevant to the issue of violence for such probative force as the jury might have given it. The crime of rape, having no evidentiary support, was admittedly not germane, but it's miniscule role in this trial could have been avoided by a proper objection and as it was neither argued nor even mentioned to the jury any error can be treated as harmless. Ford v. State, 276 Ark. 98, 633 S.W.2d 3 (1982). We have often said the law cannot guarantee a perfect trial, only a fair one.