Summary
affirming capital-murder conviction; reversing death sentence because of an evidentiary error
Summary of this case from Ward v. HutchinsonOpinion
DUDLEY, Justice, concurring in part and dissenting in part.
The appellant was convicted of capital murder. The majority opinion holds that the trial court erred in allowing the State to prove that the appellant had been previously charged with murder, rape, and robbery, even though he was not convicted of those charges. I wholeheartedly agree with the majority in that holding. That error occurred in the sentencing phase of the bifurcated trial, and therefore, the majority reverses only the sentencing phase of the case. As a result, the case will go back to the trial court only to decide whether the appellant is again sentenced to die by lethal injection, or is to be sentenced to life in prison without parole. I would agree with the majority that reversing for resentencing only was correct if I truly thought the appellant had received a fair trial in the guilt phase of the bifurcated trial. However, my review of this case under Rule 11(f) of the Rules of the Supreme Court and Court of Appeals leads me to the conclusion that the appellant did not receive a fair trial in the guilt phase. As a result, I would reverse and remand the whole case for retrial.
We have long held that a trial judge should manifest the most impartial fairness in the conduct of a trial, especially in a capital case. A trial judge is held in high esteem by the jurors, and any indication by a judge that he favors one side or the other might influence the minds of the jurors. In this case the trial judge allowed the prosecuting attorney and his deputies to approach the bench, but would not allow the defense attorneys to do the same. The trial judge seemed to delight in denying the defense the opportunity to approach the bench. The record reflects the following. At the suppression hearing all of the police officers testified that the appellant said he would not sign a waiver of rights form nor would he agree to a taped interview nor would he make a written statement. While the appellant was under arrest and in custody, he stated that he was at the service station, the victim allowed him to use the ladies' restroom, and he never saw her again. One of the policemen drew a diagram of both the men's and women's restrooms at the service station and asked the appellant to circle the one the victim unlocked for him. The bathroom that he marked, and said he was allowed into, was the one in which she was found murdered. The defense attorneys moved to suppress the diagram, and the trial court held a suppression hearing. The trial court denied the motion to suppress. Then, at the trial on the merits, during the testimony of detective Mark Stafford, the subject again came up, and defense counsel attempted to renew the motion to preserve his record. It came about as follows.
MS. LaRUE [Deputy Prosecutor]:
Q: Detective, I'm showing you what's now been marked State's Exhibit 14 and I'd ask you if you could identify this.
A: Okay. This is a diagram that I had drawn. I put the squares in reflecting where the store is. Also drew two 427 squares showing the men's restroom
Q: Detective, I want you to hold that up and I want you to point to it in reference to it so the jury can know what you intended this to be.
A: This is the front door.
MR. DEVINE [Defense Attorney]:
Your Honor, I think she ought to move to have it introduced if she's going to use it as a piece of evidence.
THE COURT:
I agree with that. Have you got any objection to it?
MR. DEVINE:
Yes, your Honor, I think objections have been noted on the record earlier on this and I would have the same objections at this time.
THE COURT:
Refresh the court's memory specifically. I don't remember what they were. Just tell me what they were.
MR. DEVINE:
Pardon me?
THE COURT:
Refresh the court's memory. I don't remember what the objections were. State them specifically. Just stay there. Just stay there.
MR. DEVINE:
Your Honor
THE COURT:
Tom, step back. Step back and state them.
MR. DEVINE:
I can't approach the Bench?
THE COURT:
No. Step back and state your objections.
MR. DEVINE:
Your Honor, I think that under the Rules of Evidence I have a right to approach the Bench in order to make an objection.
THE COURT:
Mr. Devine, do you want to make your objection?
MR. DEVINE:
Yes, your Honor.
THE COURT:
State your objection. You may do so.
MR. DEVINE:
The same objection that we had before.
THE COURT:
Refresh the court's memory.
MR. DEVINE:
Your Honor, if I can approach the Bench I will.
THE COURT:
You may not. If it's a legal objection, you can make it from there.
MR. DEVINE:
It is a legal objection. I think under the Rules
THE COURT:
Overruled. Go ahead.
MR. DEVINE:
--of evidence I have a right to approach the Bench also.
THE COURT:
Overruled. Go ahead.
MR. DEVINE:
Note our exceptions for the record, your Honor.
THE COURT:
Note the insistence that the Defendant will not make the objection without a side bar of the Court.
MR. DEVINE:
Your Honor, I believe under Rule 103 of the Rules of Evidence
THE COURT:
I'm aware of the rules.
MR. DEVINE:
--we have a right to approach.
THE COURT:
I have the same books you have, Mr. Devine. I'm aware of all of the rules.
MR. DEVINE:
Yes, your Honor, I know you are.
THE COURT:
Go ahead.
Record at 966-68.
Any fair-minded person would agree that the trial court placed the defense attorney in the position of making a Hobson's choice. He could either run the risk of waiving the issue or state his objection aloud. Although the jurors might not have understood that the defense attorney was trying to protect his record on suppression of the incriminating evidence, it was certainly clear to every juror that the defense attorney could not approach the bench. Yet, that same morning the trial judge allowed the prosecuting attorney to approach the bench. The trial judge later attempted to explain to the attorneys the reason for the difference in their treatment, as follows:
THE COURT:
Incidentally, for you and Mr. Devine, I don't let counsel approach the Bench. There's one time when you can approach the Bench and make a motion. That's at the end of the State's case and the end of the Defense's case for a directed verdict. The rest of the time make it out there. If you've got a legal argument, make it. If you haven't--If it's good, I'll grant it. If it's not, I won't.
But, now, the exception yesterday was that the prosecutor--And I allow the prosecutor to come to the Bench sometimes and make motions and objections because they can create mistrial. You all can't. Yesterday they wanted some security out there with Mr. Doss. And I think it was appropriate. I don't think it was necessary to approach the Bench. I think if you all had talked you could have agreed and told the court.
Record at 1150.
Regardless of the trial court's reasons, it was manifest to the jurors that the defense attorneys were not treated the same as the prosecuting attorneys. This is a subject we have often addressed. In Fuller v. State, 217 Ark. 679, 232 S.W.2d 988 (1950), we wrote:
"... a judge presiding at a trial should manifest the most impartial fairness in the conduct of the case. Because of his great influence with the jury, he should refrain from impatient remarks or unnecessary comments which may tend to result prejudicially to a litigant or which might tend to influence the minds of the jury. By his words or conduct he may, on the one hand, support the character and weight of the testimony or may destroy it in the estimation of the jury. Because of his personal and official influence, uncalled for or impatient remarks, although not so intended by him, may give one of the parties an unfair advantage over the other." Western Coals&sMining Co. v. Kranc, 193 Ark. 426, 428, 100 S.W.2d 676, 677 [ (1937) ]. Also, see, McAlister v. State, 206 Ark. 998, 178 S.W.2d 67 [ (1944) ].
The requirement of Art. 7, § 23, of our Constitution, that "judges shall not charge juries with regard to matters of fact", applies as well to the credibility of witnesses and the weight to be given their testimony as to the outright truth or falsity of what they say. St. L.S.W. Ry. Co. v. Britton, 107 Ark. 158, 154 S.W. 215 [ (1913) ]. And it applies not only to what judges tell juries in the course of formal instructions but also to what they say in colloquys with lawyers in the jury's hearing.
Id., 217 Ark. at 682-83, 232 S.W.2d at 990.
The action by the trial judge in this case might well have prejudiced the jurors against defense counsel, especially in view of a later comment by the trial judge during closing argument.
An error in the merits of the trial occurred as follows. State's witness Dale Danzeisen testified that between 2:20 and 2:26 a.m. he was in the service station where the murder occurred. The police found the victim's body at about 2:40 a.m., and because there were no eyewitnesses, witness Danzeisen's testimony was of extreme importance. On direct examination, witness Danzeisen testified that the appellant was in the service station during the time he was there. On cross-examination he stated, "I did not stay around after the defendant came out of the door in a rage." Record at 1000. The fact that the defendant was at the service station and in a fit of rage could well have been a critical fact in the jurors' minds. This was a case with only circumstantial evidence. Immediately after testifying that the defendant had been in a fit of rage, the witness admitted that shortly after the murder he gave the police a written statement. In cross-examining the witness about this prior written statement, which did not mention the fit of rage, the following occurred.
MR. DEVINE [Defense Attorney]:
Okay. Where does it say he flew out the door in a rage on there?
MS. LaRUE [Deputy Prosecutor]:
Your Honor, I'm going to object. This is an improper question. First of all, he's asking Mr. Danzeisen to refer to a police report that's been written up by an officer ... and then typed up.
MR. DEVINE:
Your Honor, he's identified it as his statement he gave to the police.
THE COURT: I think he has. The form of the question may be a little bit troublesome. ... But go ahead.
MR. DEVINE:
It doesn't say that on there, does it? In fact, what it says is, "He was talking to the clerk who I knew as Becky. When I opened the door, he turned around"
MS. LaRUE:
Your Honor, I'm going to object.
THE COURT:
Sustained.
Record at 1005-06.
The ruling was in error. The appellant should have been allowed to impeach the credibility of the State's witness by showing that he had made a prior inconsistent statement. A.R.E. Rule 613; McDaniel v. State, 291 Ark. 596, 726 S.W.2d 679 (1987). This witness was one of the State's most important witnesses, if not the most important, and his testimony about the appellant's appearance at the scene just before the murder was critical.
Witness Danzeisen also testified that about two weeks before the murder he had heard the appellant say to the victim: "I'd like to take you to the back room and fuck you up the ass." This testimony obviously lead the jurors to think that appellant was a vulgar person. A subsequent State's witness, Melissa Gabbard, knew the appellant and, on cross-examination, was asked if the appellant would use the kind of language that witness Danzeisen had said he used. She said he would "not say things like that." The following then occurred:
MR. DEVINE [Defense Attorney]:
Did you ever hear him say anything like that?
MR. FRAISER [Deputy Prosecutor]:
433 Your Honor, I'm going to
THE WITNESS:
No.
MR. FRAISER:
--object to this. I believe what they're doing is it goes to character.
THE COURT:
Sustained.
Record at 1083.
There was no motion to strike the "no" answer. There was a later objection by the State to another question on the basis that "it goes to character." The court sustained the objection. Whether the court was correct, see A.R.E. Rule 406 with regard to custom and habit, is not of consequence in view of the way the trial court later prejudiced the defense attorneys' credibility on the issue. That occurred during closing argument as follows:
MR. DEVINE [Defense Attorney]:
Mr. Danzeisen may have been by there that day. I think Mr. Danzeisen could have even done this. And it's really easy at that time to try to push it off on somebody else, especially if somebody else had been arrested that you can try to help put another load of dirt on that grave that we're burying Bruce Ward in. Because that's what we have. And it's very easy for Mr. Danzeisen to say those things. But Melissa Gabbard gets up here and she says that Bruce Ward doesn't talk like that.
MR. PIAZZA [Prosecuting Attorney]:
Objection, your Honor. That was an objection and it was sustained by the Court.
THE COURT:
Ladies and gentlemen, disregard that. It's not in evidence. You'll remember the instruction at the time. This is argument of counsel. It's not evidence.
Record at 1127-28.
In summary, my Rule 11(f) review of the rulings by the trial court leads me to the conclusion that the whole case, not just the sentencing part, should be reversed for a fair retrial. Accordingly, I concur in part and dissent in part.
HOLT, C.J., and NEWBERN, J., join in this opinion concurring in part and dissenting in part.