Dillard v. State

215 S.W.3d 662, 363 Ark. 491
CourtSupreme Court of Arkansas
DecidedOctober 13, 2005
DocketCR 05-81
StatusPublished
Cited by5 cases

This text of 215 S.W.3d 662 (Dillard v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dillard v. State, 215 S.W.3d 662, 363 Ark. 491 (Ark. 2005).

Opinion

Robert L. Brown, Justice.

Appellant Aaron Timothy Dillard appeals from his convictions for aggravated rob bery, battery in the third degree, and theft of property, and his sentence of 120 months’ imprisonment. His sole point on appeal is that the circuit court erred in sustaining the prosecution’s objection to defense counsel’s inquiry to prospective jurors during voir dire about whether they were uncomfortable with the penalty range for aggravated robbery being ten to forty years, or life imprisonment. We affirm the circuit court.

The victim, Kenneth Burnett, who was a taxi cab driver, testified that on April 2, 2004, at 3:30 a.m., he was dispatched to pick up Dillard at 12th and Woodrow Streets in Little Rock. Following their arrival at Dillard’s destination, Dillard, who was sitting behind Burnett in the taxi cab, pulled a gun and ordered Burnett to give him his money. Burnett complied, giving Dillard his wallet, which contained $125, and his checkbook. While continuing to threaten Burnett with death, Dillard told Burnett to give him the “rest” of his money. After Burnett told him that that was all the money he had, Dillard ordered Burnett to hand over his shoes and socks, as well as his cell phone and pager. Burnett complied, and as Dillard began to lower his gun, Burnett grabbed it and jumped into the back the seat and the two struggled over the gun. Burnett was ultimately shot in the hand. He gained control of the gun and held Dillard outside of the taxi cab until police arrived to arrest him.

Dillard was charged with aggravated robbery, battery in the first degree, and theft of property. After a jury trial, he was convicted and sentenced as already indicated.

Dillard argues, as his sole point, that the circuit court erred when it sustained the prosecutor’s objection to his counsel’s inquiry to the venire of whether anyone was uncomfortable with the penalty range for aggravated robbery being ten to forty years, or life. He contends that during voir dire, his counsel can ask prospective jurors if they can consider the entire range of possible penalties for the offense at issue. He asserts that nothing in Arkansas case law holds that counsel cannot inform the venire of the minimum and maximum penalties for the offense charged. He further claims that in neither of two of this court’s cases, Stephens v. State, 277 Ark. 113, 640 S.W.2d 94 (1982), and Felty v. State, 306 Ark. 634, 816 S.W.2d 872 (1991), did this court question the prosecutor’s act of informing the prospective jurors of what the minimum and maximum penalties for the charged offenses were. He adds that the circuit court’s ruling in the instant case is at odds with the purpose of voir dire, which is to enable counsel for both parties to discover if there is any basis for a challenge for cause.

At issue here is the following colloquy:

Defense Counsel: Okay. Now if— and, again, I’m not conceding anything, but I have to ask, because some people might say, well, this is not the case for me. If there is a conviction on aggravated robbery, is anyone uncomfortable with the penalty range being 10 to 40 years, or life, in the Arkansas Department of Prisons?
Prosecutor: May we approach, Your Honor?
The Court: Yes.
Prosecutor: (At the Bench) She has been on the record and asked if a term of years in a voir dire situation, would be improper. She should ask whether the jury can consider the full range of punishment. You know, what she’s not telling them is that she’s got lessers as well. So I think what’s going on here is she’s trying to set them up to say, Oh, My Gosh, I said ten years minimum, and I would ask that that not be allowed that she can tell them the range, and I would ask that that be struck.
Defense Counsel: I present Thomas v. State, and I don’t have the case on me, I’m sorry, I can get it during a break. I’m allowed to ask specific questions regarding the penalty range because someone might say I’m not able to sit on a case where life is one of the penalty ranges, similar to a death penalty case, Your Honor.
The Court: What does a death penalty case have to do with this?
Defense Counsel: I said it is an analogy to a death penalty case, that you can in a non-death penalty case, go into the full scope of ranges.
The Court: You can ask them if they can consider the full range of penalty. You cannot tell them what it is. You may proceed.

The course and conduct of voir dire examination of prospective jurors are within the circuit judge’s sound discretion, and the latitude of that discretion is wide. See Ark. R. Crim. P. 32.2 (2005); Isom v. State, 356 Ark. 156, 148 S.W.3d 257 (2004). Decisions regarding voir dire will not be reversed absent an abuse of discretion. See Moore v. State, 362 Ark. 70, 207 S.W.3d 493 (2005); Isom v. State, supra.

Three Arkansas cases appear to touch on this subject. In Haynes v. State, 270 Ark. 685, 606 S.W.2d 563 (1980), this court reversed and remanded Haynes’s convictions on the basis that several members of the venire were excluded because they expressed reservations about assessing the combined maximum possible sentence for the offense charged. This court characterized the prosecutor’s examination during voir dire as seeking to select “a panel which would agree, in advance of the trial, to assess the maximum punishment if the appellant were found guilty.” 270 Ark. at 688, 606 S.W.2d at 564. We further observed that the purpose of selecting a jury is to obtain a panel that will be fair and impartial to the accused as well as to the state. See id. We concluded that the jury in the case:

was composed of 12 people who may have felt obligated, in advance of hearing the evidence, to consider imposing the maximum punishment if the accused were found guilty. They were not chosen upon their promise to consider the full range of penalties provided by law, as the court had correctly stated at one point earlier in the proceedings.

Id. at 690-91, 606 S.W.2d at 565. Because of the unfairness of the type of questions presented to the venire, we held that the questions clearly constituted prejudicial error. See id.

We turn next to the cases cited by Dillard in support of his argument. In Stephens v. State, 277 Ark. 113, 640 S.W.2d 94 (1982), the appellant claimed that the trial judge erred when he allowed the prosecutor to question prospective jurors about their willingness to impose the maximum sentence. Despite this assertion, this court described the situation in Stephens’s voir dire as follows: “. . . after stating the minimum and maximum penalties for the crimes charged, the prosecutor asked the prospective jurors whether they would consider the maximum penalty.” 277 Ark.

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Bluebook (online)
215 S.W.3d 662, 363 Ark. 491, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dillard-v-state-ark-2005.