Snell v. State

721 S.W.2d 628, 290 Ark. 503, 1986 Ark. LEXIS 2226
Supreme Court of Arkansas·Decided December 15, 1986·No. CR 85-206·Published·Cited by 68 cases

Opinions

Steele Hays, Justice.

On November 1, 1984 Richard Wayne Snell was charged by information with the violation of Ark. Stat. Ann. § 41-1501 by murdering William Stumpp in the course of a robbery. Stumpp’s body was found in his Texarkana, Arkansas, pawnshop on November 3, 1983. He had been shot three times in the back of the head with a .22 calibre pistol. Weapons, cash and jewelry were missing. Snell was convicted and sentenced to death by lethal injection. Numerous points of error are presented on appeal. Our jurisdiction attaches under Rule 29(l)(e). We affirm the conviction and the sentence imposed.

Information Given Jury During Deliberation

Appellant’s first point for reversal asserts the trial judge erred in informing the jury about the meaning of life without parole. While the jury was deliberating the penalty, it asked the court whether a sentence of life without parole “really means no parole.” By agreement of counsel for the defense and for the state the court answered by explaining that under a sentence of life without parole the defendant would be incarcerated for life in the Department of Correction unless the governor commuted the sentence to a term of years. The jury later returned a verdict of death.

. Citing Bush v. State, 261 Ark. 577, 550 S.W.2d 175 (1977) and Andrews v. State, 251 Ark. 279, 472 S.W.2d 86 (1971), appellant argues it was error to give this information to the jury notwithstanding his approval. But in neither of those cases did the defendant expressly approve of the jury being given the information about parole. In Andrews the defendant expressly objected. In Bush, there was no opportunity to object, as the information was given to the jury privately by the trial judge.

There is nothing so corrupting in the jury being told about parole that defense counsel can stipulate to a statement of the law being given to a jury and then use it as a means of reversal. For a good many years, the giving of such information to the jury, provided it was not inaccurate, was approved by our cases. See Glover v. State, 211 Ark. 1002, 204 S.W.2d 373 (1947); Pendleton v. State, 211 Ark. 1054, 204 S.W.2d 559 (1947) and see California v. Ramos, 463 U.S. 992 (1983). This exact situation occurred in Smith v. State, 278 Ark. 463, 648 S.W.2d 792 (1983) and we rejected the claim of error, saying that counsel may not agree to action taken by the trial court and then argue on appeal that such action is error.

Change of Venue

Appellant next contends the trial court abused its discretion in denying a motion for a change of venue. The trial court found the supporting testimony insufficient and we are not persuaded the trial court’s wide discretion was abused. The motion, filed by Wayne Snell acting as co-counsel, came only two weeks before trial, after the case had been pending for nine months. Two affidavits accompanied the motion and the affiants were questioned at a hearing a week before trial. While doubtless sincere in their own opinion, the affiants could cite little or nothing beyond their own convictions that a fair trial was not possible in the case and the trial court found the testimony insufficient. One affiant could recall neither a specific conversation nor an individual with whom she had discussed the case. She did not know if she had talked to anyone from the communities of Valley Gin, Kiblah, Dodridge, Bright Star, Sulpher, Genoa, Fouke, Mandeville, Pleasant Hill, Homan or Rondo.

Q: So your testimony is that you can not tell the Court that you have talked to anyone from those areas or know the public opinion of persons in those areas?
A: Not in those areas.

While the other affiant was somewhat more specific, we cannot say the trial court’s characterization of the sum of their testimony as “too remote” constitutes an abuse of his discretion in these matters. Our statute, Ark. Stat. Ann. § 43-1502 (Repl. 1977), requires the defendant to produce at least two “credible persons” in support. But when those persons have knowledge concerning only a lesser portion of the county from which the jurors will be chosen, we have held that the trial court is justified in finding their testimony as lacking in credibility within the meaning of the statute. Jordan v. State, 141 Ark. 504, 217 S.W. 788 (1920); Brown v. State, 134 Ark. 597, 203 S.W. 1031 (1918); and Dewein v. State, 120 Ark. 302, 179 S.W. 346 (1915).

Appellant urges that in Rush v. State, 238 Ark. 149, 379 S.W.2d 29 (1964), where the defendant offered twelve affidavits and the state none, we held the trial court abused its discretion in denying a change of venue. We do not read the opinion in the Rush case as holding that however weak the supporting affidavits, the court must grant a change if the state fails to present offsetting proof, the defendant must still present two credible witnesses as defined by our statute and case law. In Rush, the defendant’s twelve affidavits met the requirements of the statute and the state failed to meet them with proof to the contrary. On that set of facts, the trial court was reversed. We refuse to adopt a rule that tends to gauge a change of venue by purely mechanical formulas. We have held these issues are largely subject to the trial court’s discretion. In Kirkendall v. State, 265 Ark. 853, 581 S.W.2d 341 (1979), we said:

A change of venue should be granted only when it is clearly shown that a fair trial is likely not to be had in the county. For these reasons such matters are left to the sound discretion of the trial court who is in a much better position to evaluate the situation than we are.

Appellant maintains he was deprived of the opportunity to question several jury panelists who were excused by the trial judge prior to the individual voir dire. Seven panel members were in fact excused on the basis of questions posed to the entire panel by the trial judge concerning familiarity with the attorneys, the defendant, or the victim. All seven were excused because they were acquainted with the victim. Not until the fifth panelist was questioned did the defense request the opportunity to ask about pretrial publicity. The request was denied by the trial court with the remark that counsel had previously agreed on that procedure — the trial judge would ask the usual general questions of the entire panel and counsel would then voir dire each panel member individually, with the defendant being permitted to ask about pretrial publicity. Counsel for appellant acknowledged that understanding. Moreover, the excusing of three panel members because of friendship with the victim could not have prejudiced the defendant, the question is, did the selection process result in a fair jury and nothing to the contrary is demonstrated. As to the dissent’s assertion that Richard Wayne Snell was tried twice for the murder of Officer Lewis Bryant, we have searched the record and find no mention of that occurrence throughout the trial. It was mentioned by a few panelists during voir dire, but of those only one was seated on the jury and he was pronounced “good” by both the state and the defense. It should be noted the defense had peremptory challenges remaining when the twelfth juror was accepted. See Fairchild v. State, 284 Ark. 289, 681 S.W.2d 280 (1984).

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Snell v. State, 721 S.W.2d 628, 290 Ark. 503, 1986 Ark. LEXIS 2226 (Ark. 1986).

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