After midnight on the morning of September 4, 1975, Terry Wyrick, a young filling station employee working at a Fina station near Turrell, was shot twice and robbed. Clarence Sidney Alexander (the appellant) and William Lee Fowler were promptly arrested and presumably charged with aggravated robbery. Upon Wyrick’s death 17 days later the two men were separately charged with capital felony murder. Fowler later pleaded guilty and was sentenced to life imprisonment. Alexander pleaded not guilty, was tried by jury, and now appeals from a verdict and judgment finding him guilty and sentencing him to life imprisonment without parole. His appointed counsel argues a number of points for reversal, none of which we find to have merit.
Our statement of the facts is taken in part from Alexander’s confession. We therefore hold at the outset that the trial judge’s finding that the confession was voluntary is not clearly erroneous. Degler v. State, 257 Ark. 388, 517 S.W. 2d 515 (1974). To the contrary, the preponderance of the proof supports the trial judge’s conclusion. The testimony of the officers, to the effect that Alexander was fully warned of his rights and made a voluntary statement, was not contradicted. At the Denno hearing, after the situation had been explained to Alexander, he elected not to testify.
The State’s proof of guilt was so persuasive that no question is raised here about the sufficiency of the proof. Alexander’s confession was introduced; Fowler testified for the prosecution. According to both of them, they decided to rob the Fina service station attendant. As planned, Alexander distracted the attention of the victim, Wyrick, while Fowler crept up behind him and hit him on the back of the head with a hammer. When Wyrick fell, his pistol dropped out of his pocket. Alexander picked up the pistol and shot Wyrick in the back of his neck. After Alexander and Fowler had gotten back in their car and driven a short distance, Alexander stopped the car and walked back to the station. There he shot Wyrick again, this time in the face, and took $50 from his pocket. In his confession Alexander said he shot Wyrick the second time because Wyrick grabbed Alexander’s wrist and he couldn’t get loose.
During Alexander’s interrogation he told the officers that he had left the pistol with Albert Mosby, a friend who lived in Memphis. Alexander supplied Mosby’s telephone number. When an officer called Mosby, he acknowledged that he had the gun that Alexander had left with him. Alexander then went to Memphis with two officers and showed them where Mosby lived. Mosby turned the gun over to the officers and testified that they treated him with courtesy. There was no search of the premises, nor any violation of Alexander’s rights. Upton v. State, 254 Ark. 664, 497 S.W. 2d 696 (1973). In fact, the main objection made below — that the search was the fruit of the poisonous tree — is rebutted by our holding that the confession was voluntary. Ballistics tests showed that the two bullets taken from Wyrick’s body had been fired from the gun in question, which Alexander identified on the Memphis trip as the one that he had used.
We consider next the trial judge’s refusal to relieve William Palma Rainey as Alexander’s appointed defense counsel. Some six months after Rainey’s appointment he formed a law partnership with Kent Rubens. Rubens had represented Fowler for a short time, by appointment, but he was relieved when it appeared that he might be serving in the legislature when Fowler was to be tried. After the partnership was formed Rainey asked that he be relieved as counsel for Alexander, because he needed Rubens’s assistance at the trial, and Rubens had learned facts from Fowler that would prevent Rubens from properly representing Alexander.
We find no error in the trial court’s refusal to relieve Rainey. The three reasons relied upon in the assertion of error are not sound. First, it is argued that Rubens could not properly cross-examine Fowler, because of the information Rubens had learned from Fowler. That contention overlaps the second one, that Rubens could not argue to the jury, with regard to Alexander’s possible punishment, that Fowler was more at fault than Alexander. The record reflects, however, that Rubens did cross-examine Fowler, with no indication that he was hampered in doing so. As to the possible punishment, Alexander received the lighter of the only two penalties, death or life imprisonment without parole, that the jury could have imposed. Thus no prejudice is shown. The third argument, that Rubens’s knowledge would be imputed to Rainey, is without merit. Under the wording of the partnership statute, the knowledge was not imputable to Rainey, as it was not information that Rubens reasonably should have communicated to Rainey. Ark. Stat. Ann. § 65-112 (Repl. 1966). Moreover, Rubens has stated that he did not reveal the information to Rainey.
Another point for reversal arises from an incident that occurred outside the courtroom before the trial began. Later, after the noon recess, the court considered the incident in chambers. Mrs. Richardson, a juror who had already been accepted, had reported the matter to the court during the noon recess, in the presence of counsel. As the court remembered it, Mrs. Richardson reported that Mrs. Wyrick, the mother of the victim, had identified herself and talked with Mrs. Richardson and two other women who were members of the jury panel. The conversation occurred in the hallway in front of the courtroom, at 9:30. Mrs. Wyrick made the statement that her son was the victim of the crime and that the defendant was the person who shot him. Mrs. Wyrick indicated two places in the face where her son was shot and said that it was cold-blooded murder.
The court conducted an in-chambers hearing, at which both Mrs. Wyrick and Mrs. Richardson testified. According to their testimony, the incident does not appear to have been as serious as Mrs. Richardson reported it. Mrs. Wyrick testified that no one else was present during the conversation, another woman nearby having walked away as the two began to talk. Mrs. Richardson said that two other women were standing near her when Mrs. Wyrick approached. Mrs. Richardson did not say that the other women heard the conversation, but her testimony does not exclude that possibility. Mrs. Richardson said that she could not recognize the other two women and that she had looked around the courtroom and had not seen them.
Both Mrs. Wyrick and Mrs. Richardson were examined and cross-examined, but neither testified that there had been any reference to cold-blooded murder. Mrs. Wyrick testified that while she was eating lunch at a Tastee Freeze Mrs. Richardson came up to the car to explain that she had reported the incident to the court. During that conversation Mrs. Richardson said that in her opinion, “We ought to kill more of these black sons-of-bitches.” (The appellant is black.) That conversation, however, was solely between the two. There is not the slightest indication that Mrs. Richardson’s prejudice was expressed to anyone else connected with the case. Mrs. Richardson was, of course, excused as a juror.
The trial judge denied a defense motion either for a mistrial or for an entirely new jury panel. The judge offered to have Mrs. Wyrick and her husband stand up before the jury, to see if any jurors could say that they had talked to either, but defense counsel declined that offer. The judge also suggested that any possibility of harm could be eliminated by counsel, by their asking the jurors if they had talked to anyone in the courthouse about the case. Apparently counsel did not pursue that course. The judge, in denying the motion, noted that the case had been set for trial two or three times, that it had been continued each time at the request of the defense, that the only three available days had been set aside for the trial, that a new jury panel could not be selected in time to use those days, and that another continuance would mean a postponement for several months.
We cannot say that the trial judge was wrong in refusing to grant a mistrial or to discharge the entire jury panel and postpone the trial. In a matter of this kind we must rely primarily upon the discretion of the trial court, reversing his decision only if an abuse of that discretion clearly appears. Here, except for the reference to cold-blooded murder (which the State’s proof showed it to have been), Mrs. Wyrick did not make any statement of fact to Mrs. Richardson that was not brought out at the trial by undisputed evidence. Mrs. Richardson herself was excused from the jury. There remains the possibility that two other members of the jury panel heard what Mrs. Wyrick said. That possibility is suggested only by the trial judge’s recollection of what Mrs. Richardson said in her first report to him. It is not borne out by her testimony under oath, nor by that of Mrs. Wyrick. The trial judge had the decisive advantage of seeing and hearing Mrs. Wyrick, and also Mrs. Richardson both when she made her original report and when she repeated it under oath. The trial judge concluded that a mistrial was not required. Under the circumstances no abuse of discretion is shown.
Complaint is made about two remarks by the prosecutor that were belittling to defense counsel. The remarks should not have been made, but they were not so serious as to call for the drastic remedy of a mistrial. Back v. Duncan, 246 Ark. 494, 438 S.W. 2d 690 (1969). Any possibility of prejudice could have been eliminated by an admonition to the jury, but no such action was requested. In fact, the trial judge did admonish the jury, on his own initiative, after the second remark was made.
There is no merit in the argument that the trial judge should not have asked a witness certain questions to bring out a pertinent fact that had not been elicited by counsel. The questions were proper. Sharp v. State, 51 Ark. 147, 10 S.W. 228, 14 Am. St. Rep. 27 (1888).
The trial was bifurcated. When the jurors were polled after their verdict of guilty, one juror answered that that was not her verdict. She explained, however, that she was not for electrocution and that her verdict at that stage of the trial was “guilty.” Counsel, “for the purposes of the record,” asked for a mistrial, but there was obviously no prejudice whatever.
Before the trial the judge denied a defense motion that all the prosecuting attorneys, circuit judges, and circuit clerks be summoned to testify about the imposition of the death penalty in Arkansas. See Alexander v. State, 260 Ark. 785, 545 S.W. 2d 606 (1976). We need not discuss that ruling, because the jury’s failure to impose the death penalty makes the proposed testimony immaterial. We have also examined other objections made in the course of the trial and find no asserted error that warrants discussion.
Affirmed.
Hickman and Howard, JJ., dissent.