Clark v. State

573 S.W.2d 622, 264 Ark. 630, 1978 Ark. LEXIS 2165

• Court: Supreme Court of Arkansas
• Decided: November 27, 1978
• Docket: CR 77-198
• Status: Published

Opinions

Frank Holt, Justice.

A jury found appellant guilty of two counts of capital felony murder and assessed his punishment at death by electrocution on each conviction. Appellant first contends that the court committed reversible error by denying him his right to allocution under Ark. Stat. Ann. § 43-2303 (Repl. 1964). The statute provides that “[w]hen the defendant appears for judgment .... he must” be asked (by the court) “if he has any legal cause to show why judgment should not be pronounced against him.” Here the trial court did not use that specific language. He asked appellant, in the presence of court appointed counsel: “Do you have anything that you wish to say?” In response, the appellant replied: “I am sorry for what happened. I never did shoot anyone. This is all I would like to say about that. I would like to put my appeal in.” The court: “You will be granted an appeal.” Counsel: “I explained to him that we will appeal after the judgment is entered.” Then in response to the court’s inquiry, “You understand everything that is going on?”, appellant replied: “Yes, sir, I understand.” The court then stated that the judgments and sentences he had imposed are “subject to the agreement between the State of Arkansas and the State of Michigan” and the commitment would so provide. Further, appellant would be returned to Michigan where he was serving a life sentence for murder plus forty to sixty years on assault with intent to murder. The sentencing was approximately one week following the trial. At sentencing, appellant agreed that he had “waived, by your attorney, and agreed that your judgment could be pronounced here in Dewitt where you were charged rather than in Lonoke County.”

The purpose of a statute such as ours is to give the accused, upon sentencing, an opportunity to show any cause why sentence should not be pronounced. Where a question is addressed to the defendant which affords him an opportunity to express why sentencing should not be pronounced, it is unnecessary that the precise language of the statute be used. People ex rel. Bester v. Johnston, 9 A.D. 2d 827, 192 N.Y.S. 2d 947 (1959); Valdez v. State, 479 S.W. 2d 927 (Tex. Crim. App. 1972); and 24 C.J.S. Criminal Law § 1576 (b). Here the question asked by the court upon sentencing of the appellant gave him the unfettered right to state any cause, legal or otherwise, as to why sentence should not be pronounced. The appellant’s response was not restricted in any manner. He was assured of his right of appeal, as an indigent, by the court and that the sentences were subject to the agreement that he would be returned to Michigan where, as indicated, he was serving two sentences. Appellant was present with counsel at the sentencing and there was no objection to the procedure. Neither has any objection been raised by a motion for a new trial, which is permissible. Finch v. State, 262 Ark. 313, 556 S.W. 2d 434 (1977). We have held that in capital cases it is necessary to make an objection in the trial court in order to raise the issue on appeal. Hulsey v. State, 261 Ark. 449, 549 S.W. 2d 73 (1977), cert. den., ___ U.S ___, 99 S. Ct. 220, 58 L. Ed. 2d 194 (1978). We further observe that here on appeal, although raised for the first time, there is no suggestion of any prejudice other than the court did not follow the exact wording of the statute. Upon a review of the entire sentencing procedure, we are of the view no prejudicial error as to allocution is demonstrated. See Tate v. State, 258 Ark. 135, 524 S.W. 2d 624 (1975).

Appellant next contends that the imposition of two death penalties constitutes cruel and unusual punishment. The death penalty per se is not violative of our Federal Eighth and Fourteenth Amendments. Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S. Ct. 2960, 49 L. Ed. 2d 913 (1976); Jurek v. Texas, 428 U.S. 262, 96 S. Ct. 2950, 49 L. Ed. 2d 929 (1976); Collins v. State, 261 Ark. 195, 548 S.W. 2d 106 (1977), cert. den. 429 U.S. 808, 98 S. Ct. 231, 54 L. Ed. 2d 158 (Oct. 3, 1977); and Pickens v. State, 261 Ark. 756, 551 S.W. 2d 212 (1977). The cumulative effect of consecutive sentences does not make the punishment cruel and unusual. Hinton v. State, 260 Ark. 42, 537 S.W. 2d 800 (1976). Here appellant was convicted of two felony murders and received the death sentence in each, as authorized by statute for each offense, which is not so disproportionate to the nature of the offense as to shock the moral sense of the community. See Hinton v. State, supra.

Appellant also contends that the trial court erred in admitting into evidence a tape recorded statement which he asserts was involuntarily given. A Denno hearing was held concerning appellant’s motion to suppress the statement, and the trial court ruled that it had been voluntarily made and was admissible in relevant part. Appellant argues that the statement was involuntary in that he was interrogated in Detroit by three officers who induced him to make the statement by their promises that he would not be returned to Arkansas for trial if he gave them a statement. Where a confession is made when in custody, the state bears the burden of proving it was voluntary. Giles v. State, supra. When the voluntariness of a confession is challenged, we make an independent determination of the issue from a review of the entire record looking at the totality of the circumstances but will not set aside a finding of voluntariness unless such is clearly against the preponderance of the evidence. Tucker v. State, 261 Ark. 505, 549 S.W. 2d 285 (1977).

Appellant was twenty-one years of age and had a tenth or eleventh grade education. At the Denno hearing, appellant testified that the police in Detroit, where he was apprehended, promised him that if he made the statement they would not return him to Arkansas for trial. Otherwise, he would be returned. Appellant’s testimony was contradicted by the three officers conducting the interrogation. See Smith v. State, 254 Ark. 538, 494 S.W. 2d 489 (1973); and Northern v. State, 257 Ark. 549, 518 S.W. 2d 482 (1975). Here it appears that all material witnesses testified that at no time were any promises or threats made to appellant to elicit his confession; it was freely and voluntarily given; appellant was not in their opinion under the influence of any drugs or alcohol; appellant was informed of his right to remain silent; any statement he made could be used against him in court; he had a right to have retained or appointed counsel present; and he could exercise his right to remain silent at any time. Appellant signed a Constitutional Rights Certificate of Notification form which corroborated the officers’ testimony.

Additionally, the tape recording and transcription of the interrogation, which were presented at the Denno hearing, indicate that prior to the giving of the statement, appellant was informed of all his constitutional rights. Appellant stated that he understood his rights and waived them; he had not been threatened or promised anything; and was not under the influence of drugs or alcohol. Here we cannot say the court’s finding of voluntariness was clearly against the preponderance of the evidence. Further, we observe that appellant, when testifying at trial, denied only that part of his statement that he, rather than one of his confederates, fired the pistol.

Appellant finally contends that the jury was prejudiced by the admission of evidence of a rape committed by him during the robbery which aroused the jury’s passion and resulted in their imposition of the death penalty. The state adduced evidence that appellant with two confederates, Gooch and Pickens, entered a rural grocery store, robbed the proprietor, raped an employee, killed two of the customers, and wounded five others. The full details are narrated in Pickens v. State, supra, where we affirmed his death sentence. Here the appellant, testifying in his own behalf, admitted raping the store employee and participating in the robbery. However, he denied the actual shooting of any of the victims. All of these activities constitute one continuous criminal episode. Appellant was charged with two counts of felony murder in the perpetration of a robbery and rape. The evidence of the rape was admissible as a contemporaneous part of the criminal episode. Russell & Davis v. State, 262 Ark. 447, 559 S.W. 2d 7 (1977); Harris v. State, 239 Ark. 771, 394 S.W. 2d 135, cert. den. 386 U.S. 964, 87 S. Ct. 1043, 18 L. Ed. 2d 114.

Ark. Stat. Ann. § 43-2725 (Repl. 1977) and Ark. Stat. Ann. Vol. 4A, Rules of Crim. Proc., Rule 36.24 (Supp. 1977) require that we “review the entire record for errors prejudicial to the right of an appellant in capital cases.” After compliance with this requirement, it was suggested in conference there was a violation of appellant’s constitutional rights by the trial court when he struck prospective jurors for cause because of their inability to consider the imposition of the death penalty had they, as jurors, found the appellant guilty. Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968), provides in pertinent part:

The most that can be demanded of a venireman in this regard is that he be willing to consider all of the penalties provided for by state law, and that he not be irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings. . . .

Here the trial court struck five prospective jurors for cause due to their inability, as jurors, to consider the imposition of the death penalty. Prospective juror Lucas told the court that if she were selected as a juror, she could not impose the death penalty under any circumstances. Prospective jurors Young and Pettus responded in a like manner as to the imposition of the death penalty. Prospective juror Harris responded that she did not believe she could consider the death penalty because it is contrary to the way she thinks. She was equivocal and finally answered that she didn’t believe she could impose the death penalty under any circumstances nor did she think she could even consider it. Prospective juror Thrift was struck for cause when she responded that unless she saw the crime committed, she would not consider the imposition of the death penalty. In our view there was sufficient compliance with the requirements of Witherspoon v. Illinois, supra.

Further, it is significant that no objections were raised to the court’s striking these jurors for cause. Failure to interpose an objection or raise the issue in a motion for a new trial prevents the issue from being raised for the first time on appeal in a capital case. Neal v. State, 259 Ark. 27, 531 S.W. 2d 17 (1975); Finch v. State, supra; Hulsey v. State, supra. See also Estelle v. Williams, 425 U.S. 501, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976); and Francis v. Henderson, 425 U.S. 536, 96 S. Ct. 1708, 48 L. Ed. 2d 149 (1976) to the effect that failure of a criminal defendant to object precludes review of the issue on appeal. Here, as indicated, there was no objection to the court’s excusing any of thesejurors for cause. Neither was the issue raised in a motion for new trial. In another very recent case, it was held that objections must be made at trial in order to preserve for appellate review errors of constitutional dimensions. Boulware v. State, 542 S.W. 2d 677 (Tex. Crim. App. 1976); cert. den. 430 U.S. 959, 97 S. Ct. 1610, 51 L. Ed. 2d 811 (1977). There it was specifically held in a capital case that “the failure to object to the improper exclusion of a venire member waives that right and it cannot be considered on appeal.” Therefore, “absent an objection,” it was not error when the trial court excused the jurors for cause “even though they were not questioned as thoroughly as they might have been with reference to their ability to render the death penalty no matter what the trial may reveal.” This view was reaffirmed in Shippy v. State, 556 S.W. 2d 246 (Tex. Crim. App. 1977); cert. den. 434 U.S. 935, 54 L. Ed. 2d 294 (1977).

Here after reviewing the entire record, as required by § 43-2725, supra, and Rule 36.24, supra, and finding no errors prejudicial to appellant, the judgments are affirmed.

Affirmed.

Howard, J., dissents.