Lammers v. State

955 S.W.2d 489, 330 Ark. 324, 1997 Ark. LEXIS 592

• Court: Supreme Court of Arkansas
• Decided: October 23, 1997
• Docket: CR 97-417
• Status: Published

Opinions

Ray Thornton, Justice.

Appellant Clint Lammers was tried and convicted of capital murder in the slaying of Lois Wallace, a clerk at a grocery store in Stuttgart. He was convicted at a jury trial and sentenced to life imprisonment without parole. He argues four points on appeal, none of which contains reversible error. However, pursuant to the provisions of Ark. Sup. Ct. R. 4-3(h), we have examined the complete record for any prejudicial error that was objected to below, but not argued on appeal. We have concluded that there was reversible error when the trial court ruled that appellant’s peremptory challenge of a middle-aged white male juror violated the requirements of Batson v. Kentucky, 476 U.S. 79 (1986), and ordered the juror to serve over appellant’s objection.

Appellant’s conviction was based upon evidence that he and two accomplices, Sean Smith and Brandon Isbell, who were tried separately, planned to rob Goacher’s IGA grocery store and shoot the clerk to eliminate her as a witness. They went to the grocery store on the morning of October 28, 1994, where they first purchased batteries and remained in the store while they discussed their next move. Isbell picked up a pair of gloves and went to the front of the store, while appellant and Smith remained in the back. Isbell had a gun with him. He went to the cash register to pay for the gloves and shot the clerk, Ms. Wallace, in the head. When they could not open the cash register, they grabbed some cigarettes and fled to appellant’s home. They took the gun, cigarettes, batteries, and gloves to a shed near appellant’s house, where they hid the gun. They called police from appellant’s house and turned themselves in. AH three gave statements while in custody.

After the poHce arrived at the house, Smith told them what was hidden in the shed. The officers immediately conducted a warrantless search of the shed and found a .357 caliber revolver hidden under a stuffed animal and a .22 caliber handgun in a paper bag. They found the cigarettes, batteries, and gloves lying outside on the ground. AppeUant argues that the confession and search were Hlegal, and that without this evidence, there was not substantial evidence to convict him.

Before we discuss the error upon which we reverse, or any of the other points on appeal, we must first consider his challenge to the sufficiency of the evidence. We do not consider trial errors until after we have considered arguments regarding the sufficiency of the evidence, including that which perhaps should not have been admitted. Scroggins v. State, 312 Ark. 106, 848 S.W.2d 400 (1993).

There was an abundance of evidence to support a conviction. AppeUant’s argument that the evidence was insufficient because some of it should have been suppressed is based upon a mistaken premise. See Scroggins v. State, supra. Further, this issue was not preserved for appeal because his motions lacked the requisite specificity. At the close of the State’s case, appeHant stated that he moved for “a directed verdict of dismissal based on the sufficiency of the evidence.” Fie renewed his motion at the close of his case. We cannot consider this argument because his motions did not state “the specific grounds therefor.” Walker v. State, 318 Ark. 107, 108, 883 S.W.2d 831, 832 (1994). A general motion such as the one made by appeHant is not sufficient to apprise the trial court of the missing proof so that it can be made aware of any deficiency. Id. Therefore, the argument is procedurally barred from our review.

In capital murder cases, we are required by Ark. Sup. Ct. R. 4-3 (h) to “ . . . review aH errors prejudicial to the appeHant in accordance with Ark. Code Ann. § 16-91-113(a).” Pursuant to the requirements of this rule, we make our own examination of the record and reject or accept on their merits aU objections made at trial, whether or not argued on appeal, but we do not consider a matter in the absence of an objection. Fretwell v. State, 298 Ark. 91, 708 S.W.2d 630 (1996). We review prejudicial, erroneous rulings even when such objections are not briefed by either the appellant or the State. Griffin v. State, 322 Ark. 206, 909 S.W.2d 625 (1995). We have concluded that the trial court committed prejudicial error in denying appellant’s peremptory challenge of Mr. Clifford Burdett on the basis of the principles established by Batson v. Kentucky, 476 U.S. 79 (1989).

We note that before Mr. Burdett was challenged, the selection of twelve jurors had been completed without an objection being preserved as to any peremptory challenge or dismissal for cause. However, the trial court determined that two alternate jurors should be chosen in the event that one or more of the jurors could not serve. Appellant, a seventeen-year-old white male, attempted to exercise a peremptory challenge of Mr. Burdett, and the prosecutor asked for a bench conference, arguing that appellant struck Mr. Burdett because he is a “white male of middle age.” The following colloquy ensued:

Mr. J.W. Green, Jr.: My client told me to strike him, Your Honor. My client sits here facing a possible death sentence. My client does not feel comfortable with this gentleman sitting as a juror. And in this particular case, I follow my client’s recommendation.

[A recess was taken in order for the court to review J.E.B. v. T.B. ex rel. Alabama, 114 S. Ct. 1419 (1994)]

Mr. Dittrich [prosecutor]: . . . there have been a large number of middle age, or older, white males struck by the defendant regardless of the answers to their questions. And it is our position that a conscious pattern to strike those individuals. I realize J.E.B. versus Alabama does not deal with the age issue, but we would make both a gender and an age based discrimination argument.

The Court: Well, for the record, we should note that Mr. Harris is on the jury, and he is thirty — in his thirties? Do you all have a questionnaire?

Mr. Dittrich: Mr. Harris is thirty-two years old, Your Honor — I’m sorry, Your Honor, forty-two. He was born in 1954. The Court: Forty-two. And . . . let’s see, Mr. Stovesand — Mr. Stovesand was struck by the defendant, and I know he is in his twenties. Mr. Winfrey was excused by the defendant, and he is in his fifties.

The Court: Ms. Sells was excused by the defendant. She is a white woman. Mr. Berry was seated on the jury. Do we know how old Mr. Berry is?

Mr. Dittrich: Mr. Berry . . . Let me look just a minute, Your Honor. . . .Mr. Berry is thirty-six years old. But I would point out for the record that Mr. Berry is an African-American.

The court then proceeded to inquire into the age of each of the white males who had been peremptorily challenged. Appellant’s attorney asked whether the State’s Batson challenge was based upon race, gender, or age, and the prosecutor replied that it was based upon all three. The court disallowed the peremptory challenge.¹ Appellant’s attorney then explained his objection for the record as follows:

Mr. J.W. Green, Jr.: Your honor, the defendant’s objection goes not only to the fact that he is a white man. It wouldn’t make any difference if it was a white female. The defendant’s objection goes to the fact — further to the fact that he did not feel comfortable with the answers that were asserted by Mr. Burdett up there. The defendant is sitting here in a capital murder case. His life is on the line. And he is exercising a peremptory challenge that he thought, and believes that he has a right to exercise. If it had been a black man, or if it had been a black woman, if it had been a white man, or if it had been a white woman, would the, what he perceived and what he heard from where he sits, he would have excluded that person from the juror — jury.

Although there was no finding by the court that this explanation was pretextual, Mr. Burdett was seated on the jury without further inquiry.

The threshold question is whether a prima facie case of discrimination has been presented by the State. In Mitchell v. State, 323 Ark. 116, 913 S.W.2d 264 (1996), we articulated the requirements for establishing a prima facie case as follows:

(1) showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose, (2) demonstrating total or seriously disproportionate exclusion of [the group in question] from the jury, or (3) showing a pattern of strikes, questions or statements by [the proponent of the strike] during voir dire.

Id. at 123-24, 913 S.W.2d at 268. By trying to discern a pattern, the trial court followed the correct procedure in attempting to determine whether a prima facie case had been established. However, its ruling was based upon a faulty premise, which was that age can be a basis for a Batson challenge. ■

In Sonny v. Batch Motor Co., 328 Ark. 321, 944 S.W.2d 7 (1997), we approved the trial court’s finding that no Batson violation existed when the proponent of the strike in question there explained to the court that it was looking for mature, conservative business people. We noted that age and occupation are neutral criteria. Id.; accord United States v. Ross, 872 F.2d 249 (8th Cir. 1989); United States v. Garrison, 849 F.2d 103 (4th. Cir. 1988). While we recognize that the United States Supreme Court has expanded Batson, as provided in Georgia v. McCollum, 505 U.S. 42 (1992), and extended the principles to a consideration of gender, J.E.B. v. T.B. ex rel. Alabama, 511 U.S. 127 (1994), it is obvious from the record that the trial court’s focus here was on the exclusion of middie-aged white males, as it inquired into the age of each juror. Therefore, its ruling was in error.

Had there been a prima facie case, the court failed to properly apply the remaining parts of the Batson test. The explanation offered by appellant was both race and gender neutral.² There was no finding by the trial court that it was pretextual. When a racially neutral explanation is offered to rebut a prima facie case, the trial court shall then determine from all relevant circumstances the sufficiency of the explanation. Colbert v. State, 304 Ark. 250, 801 S.W.2d 643 (1990). This was not done; the trial court ended its inquiry after appellant’s race-neutral explanation, and seated the juror over appellant’s objection.

Mr. Burdett, who was originally the first alternate, replaced a juror before the trial commenced and participated in the decision. As appellant received a fife sentence without parole, we cannot say this error was harmless. We pointed out the following in Sonny:

The goal of fairness in jury trials is also enhanced by the venerable practice of peremptory challenges, which dates back beyond the founding of the Republic to origins in the common law. The historical practice of allowing the litigant to strike jurors for any reason came into being for the purpose of fostering both the perception and the reality of an impartial jury. The rationale supporting this practice remains valid except where the constitutional principles articulated by Batson and its progeny are violated.

Sonny v. Batch Motor Co., 328 Ark. at 325, 944 S.W.2d at 90 (citations omitted). As there was no constitutional violation in appellant’s peremptory strike, the trial court erred in overruling it.

We will address appellant’s remaining points on appeal, as they are likely to arise on retrial. Prior to trial, appellant filed a motion to suppress evidence seized during the warrantless search of a metal building located behind the duplex where he and his mother lived. In his motion, he contended that the search and seizure violated his Fourth Amendment rights because it was made “without the consent of the defendant or his mother, the other occupant of the premises and with the absence of any exigent circumstances to justify a warrantless search.” The trial court denied the motion, finding that because neither appellant nor his mother had a property interest in the shed, he lacked standing to object to the search. The trial court was correct.

“The rights secured by the Fourth Amendment are personal in nature.” Littlepage v. State, 314 Ark. 361, 368, 863 S.W.2d 276, 280 (1993) (citing Rakas v. Illinois, 439 U.S. 128 (1978)). Before a search can be challenged on Fourth Amendment grounds, the challenger must have standing. Id. To have standing, appellant must show that (1) he manifested a subjective expectation of privacy in the area searched and (2) society is prepared to recognize that expectation as reasonable. Dixon v. State, 327 Ark. 105, 937 S.W.2d 642 (1997).

The testimony at the suppression hearing revealed that appellant’s mother had once rented the house to which the shed belonged from Ray Freeman. Mr. Freeman also owned the duplex that Mrs. Lammers was renting at the time of the offense, and it is located near the house and the shed. However, Freeman testified that the shed went with the house. After Mrs. Lammers moved out of the house and into the duplex, the house was sold, but Mr. Freeman reacquired it when the buyer was unable to keep up with the payments. He said that Mrs. Lammers had put a motorbike in the shed at one time and left it there when the property was sold, but that the buyer had taken the motorbike and sold it.

It is not clear from the testimony whether Freeman or the buyer owned the house at the time of the offense, but the following facts are clear: (1) neither appellant nor his mother owned or rented the house with the shed, at the time of the offense and (2) the duplex where appellant lived, while in close proximity to the house and the shed, was not a “common area,” and each tenant was responsible for a fifty-foot lot that surrounded each residence. It follows that appellant did not have a reasonable expectation of privacy in the storage building, as he neither owned nor rented the property. The trial court’s decision that appellant did not have standing to object to the search is supported by a preponderance of the evidence, as presented in the suppression hearing.

Appellant next argues that the statement he made to police while in custody should have been suppressed because he did not knowingly and voluntarily waive his Fifth Amendment right to remain silent. Appellant contended in his motion to suppress that he did not knowingly, intelligently, or voluntarily waive his rights; that he was not properly or sufficiently advised of his rights; and that he was not capable of understanding those rights, due to his age and his mental and emotional state. However, the trial court’s ruling stated that there was “no evidence whatsoever of involuntariness.” It appears that appellant made an argument that his waiver was involuntary, but he received a ruling that his statement was not involuntary. The arguments are not the same.

In Clay v. State, 318 Ark. 122, 883 S.W.2d 822 (1994), we discussed the difference between the contention that a statement was made involuntarily and the contention that an accused did not knowingly and voluntarily waive his right to remain silent. The “voluntary statement” argument addresses whether the statements were made as the result of coercion. Id. at 129, 883 S.W.2d at 826. The “waiver of rights” argument focuses upon whether the waiver was made with a “full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it,” as well as whether the accused made the choice, “uncoerced by police, to waive his rights.” Id., 883 S.W.2d at 825-26 (emphasis added). We pointed out in Clay that while we sometimes do not take time to point out the distinctions between the two arguments, they are clearly different arguments. Id.; see, e.g., Shaw v. State, 299 Ark. 474, 773 S.W.2d 827 (1989) (reaching the waiver issue but not the voluntariness issue because the voluntariness argument had not been made to the trial court). It is incumbent upon a movant to obtain a ruling in order for his argument to be considered on appeal. Foreman v. State, 328 Ark. 583, 945 S.W.2d 926 (1997). Appellant should be mindful of the distinction between the two arguments and should he make this argument at his retrial, he will need to obtain a specific ruling on either or both arguments if he wishes to preserve the issues for our review. See Foreman v. State, supra.

Appellant’s final argument is that the trial court abused its discretion in denying his motion to recuse. Prior to trial, appellant filed a motion requesting that-the trial judge recuse from the case because one of appellant’s attorneys, J.W. Green, Jr., who was also Stuttgart City Attorney, had approved a charge of battery against the judge, resulting from an incident at a night club in Stuttgart. The Stuttgart Municipal Court had issued a warrant for the judge’s arrest, but the charge was nolle prossed at the request of the alleged victim.

At a hearing, appellant noted that after the incident, the judge had recused from another case in which the defendant was represented by Mr. Green. After hearing the arguments, the judge declined to recuse, stating that he had no argument with Mr. Green, as he was only doing his job, and that he did not have any prejudice against appellant as a result of the incident in municipal court.

We see no evidence of bias in the record that would cause us to conclude that the trial court abused its discretion in dechning to recuse. The mere presence of a complaint or suit against a judge, is not, by itself, a reason to require recusal. Smith v. State, 296 Ark. 451, 757 S.W.2d 554 (1988). When a party has acted contemptuously toward a judge, embroiling him in a personal dispute, or when a judge cannot lay aside attitudes toward individual practitioners, we have said that he should recuse. E.g, Rosenzweig v. Lofton, 295 Ark. 573, 751 S.W.2d 729 (1988); Clark v. State, 287 Ark. 221, 697 S.W.2d 895 (1985). There was no such showing here.

Bias is a subjective matter which is to be confined to the conscience of the judge. Bradford v. State, 328 Ark. 701, 947 S.W.2d 1 (1997). Unless there is an objective showing of bias, there must be a communication of bias in order to require recusal for implied bias. There is no such showing on the record before us in this appeal.

In summary, we determine that the trial court’s error in not allowing appellant to exercise his peremptory strike against Mr. Burdett was prejudicial error requiring a new trial. We reverse and remand.

Newbern, Glaze, and Imber, JJ., dissent.

1 The trial court’s finding that seven out of nine strikes exercised by the defendant were against white males is factually incorrect. A careful review of the record reveals that in the selection of the twelve original jurors, appellant had peremptorily challenged three white females, two young white males, and four older white males. During the selection of alternates before Mr. Burdett had been chosen as first alternative, three white males and one white female had been struck by the court for cause, and the court had upheld the State’s peremptory strike of a black male notwithstanding a Batson challenge.

None of appellant’s peremptory strikes had been challenged during the selection of the first twelve jurors, and therefore no race-neutral or gender-neutral explanation was required to be given. However, a review of the record discloses that at least four of the peremptorily stricken white males had responded to questions disclosing (1) that a potential witness, the acting police chief David Cowart, was a client of the venireman, (2) an ambiguous or contradictory response as to whether the potential juror could presume innocence, (3) membership in the same church with the victim’s sister, and (4) that the venireman worked with and saw the husband of the deceased every day.

2 With regard to the question whether appellant’s peremptory strikes reflected a systematic exclusion of members of the white race, we note that following the seating of Mr. Perry, a black male, it appears that every potential black juror was either dismissed for cause by the court, or peremptorily struck by the State. Thus, there was no opportunity for appellant to exercise a peremptory challenge against any non-white person.