Conley Byrd, Justice.
Appellant killed Officer Randy Basnett of the Fort Smith Police Department at the Road Runner service station on Kelly Highway which is located just off Interstate 540 and across from the State Police District Headquarters in Fort Smith. The jury found appellant guilty of Capital Felony Murder and fixed his punishment at death. For reversal appellant raises the issues hereinafter discussed.
POINT I. Before trial appellant properly moved for a change of venue with the necessary supporting affidavits. The proof showed, without contradiction, that the news media had saturated the public with the fact that appellant had been released from Leavenworth prison just a week before killing Officer Basnett and that at the time of the killing he was wanted in South Carolina for the recent murder of two teenagers. The fact that appellant had been interviewed by the South Carolina authorities was also given widespread publicity. In addition to the publicity involving the killing and subsequent funeral of Officer Basnett, the Concerned Policemen’s Wives Organization, some 45 strong, circulated petitions requesting two policemen to each patrol car. This organization wearing black arm bands collected between nine and ten thousand signatures. The people who signed the petition mentioned the policeman that was killed by appellant, and were told that the black arm band was worn in mourning and in respect of the fallen officer.
Alan Wooten, an attorney and resident of Fort Smith, testified that he did not think it possible from the one thousand or so people selected by the jury commissioners to select twelve people who either do not have a fixed opinion or could set aside the opinion they have as to the guilt or innocence and hear this case and base their decision solely on the law and evidence as presented in court.
Tom Anderson, the Historical Director for Sebastian County, testified that from his conversations with other people, they felt the same way he did. Every one of them seemed to think appellant was guilty. At least ten of the people he talked to said that appellant didn’t even deserve a trial at all. Several of them said appellant should have been shot and thrown in the river when they captured him. On cross-examination he testified that to him a fair trial means that the jury will make their decision based on what they hear inside the courtroom and would either be ignorant or would blot out everything they’ve heard before they got to court. He hadn’t run into anybody that would fit that criteria in Sebastian County.
Robert Taylor, an attorney and resident of Sebastian County, testified that appellant could not get a fair trial in Sebastian County. He stated that any person he talked with had the distinct opinion that appellant was guilty. When he told a friend that he was going to go to court to testify, the friend became highly irate that he planned on showing up and told him that they ought to shoot appellant first and try him later.
Bill Hayes, manager for Southwestern Bell Telephone Company, a resident of Sebastian County, testified on direct that he felt like appellant could get a fair trial. On cross-examination he admitted that from the news media he got the information relative to appellant’s background — i.e., he was just recently released from Leavenworth Penitentiary and that he was wanted in South Carolina for two murders. He then testified that in his conversations with 75 or 100 people, there were some that did say what they thought ought to happen to appellant. Some felt like he ought to be executed. He heard enough comment that the people he conversed with were surprised that appellant was brought in alive.
Jack Ragains testified on direct that in his opinion appellant could receive a fair trial. On cross-examination he stated that he had heard from the news reports that appellant had been in the penitentiary. He had heard about appellant being wanted in South Carolina for two murders. From what he heard and read in the case everything indicated that appellant had committed the crime. He would rather see appellant tried where he committed the crime. People he had discussed it with had expressed the opinion that appellant was guilty. None of his customers had a different opinion.
Ron Strumbaugh, a State Farm Insurance Agent, testified on direct that he thought appellant could receive a fair trial in Sebastian County. On cross-examination Mr. Strumbaugh admitted that from the news media he was familiar with appellant’s background and stated that he thought the defense in appellant’s case was unpopular.
In all the trial court heard six witnesses on behalf of appellant testify that appellant could not get a fair trial and 24 witnesses for the State who stated on direct examination that appellant could get a fair trial. On cross-examination each witness for the State testified much like Bill Hayes, Jack Ragains and Ron Strumbaugh. At the end of the testimony the trial court denied the motion for a change of venue. Following the selection of the jury and the two alternates, appellant again raised his motion for a change of venue and again it was denied.
The record shows that in the voir dire of the jury 62 prospective jurors were questioned. Twenty-three jurors were excused for cause. Appellant exhausted his twelve peremptory challenges and moved to excuse for cause eleven of the twelve jurors selected. In selecting the two alternates appellant exercised his one peremptory challenge and the trial court excused eight for cause. Every juror selected to try appellant except G. C. Whitfield knew appellant’s background from the news media. Juror Phyllis Russell stated that from the media she knew that appellant had been in prison. She also remembered that appellant was wanted for questioning. She had the opinion that appellant did it. She couldn’t say whether or not these things she had heard would have any effect on her verdict. She didn’t think she could say that it would not have any effect.
Typical of the jurors excused for cause is Mrs. Clarence Anderson who stated “I have my mind made up and I don’t believe 1 can change my opinion.” Another example is Herman Yandell who stated that he had heard other people say that the officers caught appellant right in the act and that they didn’t see how appellant could be anything other than guilty. He concluded that those conversations would color his verdict. Along this same vein is the testimony of Mary Ellen Jesson (excused by the State) that perhaps some of this information she had obtained before coming to court would influence her in some way if she were selected as a juror.
Among the jurors peremptorily challenged by appellant were Hubert Davis and Wanda Foster. Hubert Davis had worked for the same company with the father of Officer Basnett for 17 years. Since Officer Basnett’s death, he had told his father he was sorry to hear it. Wanda Foster had worked at the United States Marshall’s Office for the last eight and one-half years. Robert Taake stated that he could not be one hundred percent sure that he would not let the news media information affect his verdict.
We agree with the State that the trial court has wide discretion in deciding whether to grant a change of venue and that unless the trial court abuses its discretion, the trial court’s order is conclusive on appeal.
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Conley Byrd, Justice.
Appellant killed Officer Randy Basnett of the Fort Smith Police Department at the Road Runner service station on Kelly Highway which is located just off Interstate 540 and across from the State Police District Headquarters in Fort Smith. The jury found appellant guilty of Capital Felony Murder and fixed his punishment at death. For reversal appellant raises the issues hereinafter discussed.
POINT I. Before trial appellant properly moved for a change of venue with the necessary supporting affidavits. The proof showed, without contradiction, that the news media had saturated the public with the fact that appellant had been released from Leavenworth prison just a week before killing Officer Basnett and that at the time of the killing he was wanted in South Carolina for the recent murder of two teenagers. The fact that appellant had been interviewed by the South Carolina authorities was also given widespread publicity. In addition to the publicity involving the killing and subsequent funeral of Officer Basnett, the Concerned Policemen’s Wives Organization, some 45 strong, circulated petitions requesting two policemen to each patrol car. This organization wearing black arm bands collected between nine and ten thousand signatures. The people who signed the petition mentioned the policeman that was killed by appellant, and were told that the black arm band was worn in mourning and in respect of the fallen officer.
Alan Wooten, an attorney and resident of Fort Smith, testified that he did not think it possible from the one thousand or so people selected by the jury commissioners to select twelve people who either do not have a fixed opinion or could set aside the opinion they have as to the guilt or innocence and hear this case and base their decision solely on the law and evidence as presented in court.
Tom Anderson, the Historical Director for Sebastian County, testified that from his conversations with other people, they felt the same way he did. Every one of them seemed to think appellant was guilty. At least ten of the people he talked to said that appellant didn’t even deserve a trial at all. Several of them said appellant should have been shot and thrown in the river when they captured him. On cross-examination he testified that to him a fair trial means that the jury will make their decision based on what they hear inside the courtroom and would either be ignorant or would blot out everything they’ve heard before they got to court. He hadn’t run into anybody that would fit that criteria in Sebastian County.
Robert Taylor, an attorney and resident of Sebastian County, testified that appellant could not get a fair trial in Sebastian County. He stated that any person he talked with had the distinct opinion that appellant was guilty. When he told a friend that he was going to go to court to testify, the friend became highly irate that he planned on showing up and told him that they ought to shoot appellant first and try him later.
Bill Hayes, manager for Southwestern Bell Telephone Company, a resident of Sebastian County, testified on direct that he felt like appellant could get a fair trial. On cross-examination he admitted that from the news media he got the information relative to appellant’s background — i.e., he was just recently released from Leavenworth Penitentiary and that he was wanted in South Carolina for two murders. He then testified that in his conversations with 75 or 100 people, there were some that did say what they thought ought to happen to appellant. Some felt like he ought to be executed. He heard enough comment that the people he conversed with were surprised that appellant was brought in alive.
Jack Ragains testified on direct that in his opinion appellant could receive a fair trial. On cross-examination he stated that he had heard from the news reports that appellant had been in the penitentiary. He had heard about appellant being wanted in South Carolina for two murders. From what he heard and read in the case everything indicated that appellant had committed the crime. He would rather see appellant tried where he committed the crime. People he had discussed it with had expressed the opinion that appellant was guilty. None of his customers had a different opinion.
Ron Strumbaugh, a State Farm Insurance Agent, testified on direct that he thought appellant could receive a fair trial in Sebastian County. On cross-examination Mr. Strumbaugh admitted that from the news media he was familiar with appellant’s background and stated that he thought the defense in appellant’s case was unpopular.
In all the trial court heard six witnesses on behalf of appellant testify that appellant could not get a fair trial and 24 witnesses for the State who stated on direct examination that appellant could get a fair trial. On cross-examination each witness for the State testified much like Bill Hayes, Jack Ragains and Ron Strumbaugh. At the end of the testimony the trial court denied the motion for a change of venue. Following the selection of the jury and the two alternates, appellant again raised his motion for a change of venue and again it was denied.
The record shows that in the voir dire of the jury 62 prospective jurors were questioned. Twenty-three jurors were excused for cause. Appellant exhausted his twelve peremptory challenges and moved to excuse for cause eleven of the twelve jurors selected. In selecting the two alternates appellant exercised his one peremptory challenge and the trial court excused eight for cause. Every juror selected to try appellant except G. C. Whitfield knew appellant’s background from the news media. Juror Phyllis Russell stated that from the media she knew that appellant had been in prison. She also remembered that appellant was wanted for questioning. She had the opinion that appellant did it. She couldn’t say whether or not these things she had heard would have any effect on her verdict. She didn’t think she could say that it would not have any effect.
Typical of the jurors excused for cause is Mrs. Clarence Anderson who stated “I have my mind made up and I don’t believe 1 can change my opinion.” Another example is Herman Yandell who stated that he had heard other people say that the officers caught appellant right in the act and that they didn’t see how appellant could be anything other than guilty. He concluded that those conversations would color his verdict. Along this same vein is the testimony of Mary Ellen Jesson (excused by the State) that perhaps some of this information she had obtained before coming to court would influence her in some way if she were selected as a juror.
Among the jurors peremptorily challenged by appellant were Hubert Davis and Wanda Foster. Hubert Davis had worked for the same company with the father of Officer Basnett for 17 years. Since Officer Basnett’s death, he had told his father he was sorry to hear it. Wanda Foster had worked at the United States Marshall’s Office for the last eight and one-half years. Robert Taake stated that he could not be one hundred percent sure that he would not let the news media information affect his verdict.
We agree with the State that the trial court has wide discretion in deciding whether to grant a change of venue and that unless the trial court abuses its discretion, the trial court’s order is conclusive on appeal. We also agree with the State that the burden of proof is upon the defendant moving for a change of venue to make credible proof to support his motion. However, when we view the record before us as it appeared when appellant renewed his motion for a change of venue after the jury was selected, we must hold that the trial court abused its discretion in denying the motion for a change of venue. The voir dire of the jury corroborates the testimony of Alan Wooten, Tom Anderson and Robert Taylor that it would be very difficult to find twelve people who could put all of the news media information aside.
POINT II. We also agree with appellant that the trial court, under the circumstances, erred in holding that Hubert Davis, Wanda Foster and Robert Taake were qualified to serve as jurors. In an emotionally packed trial involving the killing of an officer by an ex-convict where the only real issue is a sentence of life or a sentence of death, it can hardly be said that a 17 year co-worker of the father of the slain policeman, who has taken the time to give his condolence to the father, is an unbiased juror. Neither should an employee of a law enforcement agency be considered a competent juror where the killing results from an assault upon an officer of the law while acting in the scope of his employment. Robert Taake did not qualify as an impartial juror, Glover v. State, 248 Ark. 1260, 455 S.W. 2d 670 (1970).
We agree with the State that the question of a juror’s qualification rests within the sound discretion of the trial court and that the proper test is whether the prospective juror can lay aside his impression or opinion and render a verdict based upon the evidence presented in court. However, where the juror testifies that he is not one hundred percent sure that he can lay aside his previous impressions or opinions, we do not see how any discretion on the part of the court can add any assurance that the verdict will be rendered only upon the evidence presented in court.
POINT III. The evidence showed that at the time of the shooting appellant had in his possession guns and ammunition other than the snub nosed .38 caliber he used to shoot Officer Basnett. Appellant objected to the introduction of these items on the basis that they had no relevant connection with the offense. We agree with the State that under the circumstances the big cache of guns by one just shortly out of Leavenworth prison and wanted for two murders in South Carolina would tend to show that there had been some premeditation and deliberation about how he should act in the event he was approached by a policeman. After all, one does not ordinarily walk around in a civilized society loaded and ready to shoot for bear.
POINT IV. State’s Exhibit No. 47, reflecting that appellant was on parole from Leavenworth prison was introduced as an aggravating circumstance pursuant to Ark. Stat. Ann. § 41-1303 (Repl. 1977), which provides:
“Aggravating circumstances shall be limited to the following:
(1) the capital murder was committed by a person subject to imprisonment, suspension, on probation as a result of being found guilty of a felony.”
Appellant contends that when we strictly construe Ark. Stat. Ann. § 41-1303, supra, the trial court erred in admitting State’s Exhibit No. 47. Since the purpose of both probation and parole is to give conditional freedom to one convicted of a felony, we find no merit in appellant’s contention that his parole on his felony conviction did not amount to an aggravating circumstance within the meaning of Ark. Stat. Ann. § 41-1303, supra.
POINT V. Ark. Stat. Ann. § 41-1303 (Repl. 1977), provides:
“Aggravating circumstances shall be limited to the following:
(4) the capital murder was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.”
State’s Exhibit No. 49, being a complaint and warrant for appellant’s unlawful flight to avoid prosecution, was admissible to show that Officer Basnett, who was checking on the registration of appellant’s stolen automobile at the time of the shooting, was shot for the purpose of avoiding or preventing a lawful arrest.
POINT VI. As we read the record, appellant’s automobile was headed east which would place his automobile with the door on the driver’s side next to the station in which Carl Tinder and another customer were located at the time appellant started firing at Officer Basnett through the door on the driver’s side of his car. Since this would place the people inside the station within the line of fire and only 23 feet from appellant’s gun, we cannot say that the trial court erred in submitting to the jury the issue of whether appellant created a great risk of death to a person other than the victim.
POINT VII. During the closing argument on the penalty, after the jury had found appellant guilty of capital felony murder, appellant wanted to argue to the jury that the killing of Officer Basnett was a status killing and that the death penalty would not be involved if Basnett had been just an ordinary person. The trial court required appellant to qualify his statement by saying that his premise would be correct “in some circumstances” — i.e. the trial court told appellant that he could not misquote the law. Appellant now contends that the trial court unduly restricted his argument and that the conversation with the trial court gave the jury an impression of what the trial judge felt of counsel’s argument. The conversation is not likely to arise on a new trial. On the other issue, the trial court has a wide latitude of discretion in controlling the extent, scope, range and propriety of arguments to the jury and we cannot say that he abused his discretion in not permitting appellant to misquote the law.
POINT VIII. Appellant made a great ploy to thfe Governor to stay appellant’s execution on tha basis that without the Governor’s intervention appellant would have been executed before he could exercise his right of appeal because of the necessary delay in obtaining the transcribed testimony. Appellant overlooked the fact that he could have filed with this court a partial record, consisting of only the judgment entered by the trial court, and have obtained a stay from this court, Leggett v. State, 231 Ark. 13, 328 S.W. 2d 252 (1959).
Other contentions raised by appellant with reference to the constitutionality of the Arkansas Death Penalty Statute are without merit, Collins v. State, 261 Ark. 195, 548 S.W. 2d 106 (1977).
Finally appellant contends that when we compare this case with others, we should reduce his sentence to life without parole. We find no merit to this contention. Appellant’s assertion that “this was a gun battle type situation without a thought of the consequences because of the instinct way the incident occurred” is not supported by the record. Steve Cardwell, an eye witness, testified that appellant shot Officer Basnett twice before the officer drew his gun.
POINT IX. Appellant’s contention that the trial court should have relieved the public defender and appointed him private counsel has no basis in fact and we consider it without merit.
Appellant’s motion to disqualify the trial judge had no merit, Walker v. State, 241 Ark. 300, 408 S.W. 2d 905 (1966). Furthermore, in view of our holding that the trial court should have granted the motion for a change of venue, the issue is not likely to arise on new trial.
Appellant contends that the capital felony murder statute is invalid because the killing of an ordinary citizen under the same circumstances in which a policeman is killed is only first degree murder — i.e. life imprisonment at most. We find no merit to this contention, Finley v. California, 222 U.S. 28, 321 S. Ct. 13, 56 L. Ed. 75 (1911). A policeman is society’s bulwark or badge of security and the killing of a policeman while performing his duties is an attack upon society’s security as a whole as compared to an attack upon an individual or the members of his family in the case of an individual. Furthermore, a policeman by the very nature of his duties is required to take risks that an ordinary citizen is not obligated to participate in. There is also the pragmatic consideration that unless courts can be expected to administer justice according to law, then the officers, who must pursue and capture one such as appellant, may have a greater temptation to solve the matter before it gets to court or at least the legislature had the right to consider such matters in making the classification.
Since appellant is unable to show any prejudice resulting from any allegedly suppressed evidence, we fail to see how he is in a position to contend that the trial court erred in failing to suppress any evidence. Appellant has abstracted no evidence that was allegedly obtained illegally and used against him.
The evidence of eye witnesses shows that Officer Basnett in response to an FBI bulletin had reason to check the registration of the automobile appellant was driving. Appellant under the pretense of getting the registration out of the car pocket, sat down in the front seat of the car and shot Officer Basnett with a .38 caliber snub nosed pistol before Officer Basnett had pulled a gun. This evidence when stated most favorably to the State, as we must do on a motion for directed verdict, was ample to sustain the jury’s verdict.
Appellant complains of the trial court’s amendment of his self-defense instructions to incorporate the provision of Ark. Stat. Ann. § 41-507 (Repl. 1977), to the effect that a person may not use deadly physical force in self-defense if he knows that he can avoid the necessity of using that force with complete safety. We can find no merit to this contention.
The trial court in accordance with long practice told the jury that “The premeditation and deliberation defined in these instructions may be inferred from the circumstances of the case.” Appellant contends that this instruction amounts to a comment on the evidence because it instructs the jury on facts it can presume. This principle of law has been stated many times, with approval, Hamilton v. State, 262 Ark. 366, 556 S.W. 2d 884 (1977), and we fail to see how appellant’s claimed self-defense makes it a comment on the evidence.
POINT X. Appellant made a number of contentions that are not likely to arise on a new trial such as the appointment of an investigator, and the expense to conduct a poll to show that he could not get a fair trial in Sebastian County and to suppress his incriminating statements.
Rule 18.3 of the Rules of Criminal Procedure permits the trial court to be informed before trial of the nature of any defense which defense counsel intends to use at trial and also the names of witnesses. Such information makes it possible for the parties to have before the court all witnesses, including rebuttal witnesses, that may be called to testify. This information prevents the necessity of giving continuances to get key rebuttal witnesses and on the record before us, we cannot see how appellant has been prejudiced or that any of his constitutional rights have been violated.
Reversed and remanded for new trial.
Harris, C.J., and Howard, J., concur. Fogleman, J., concurs in part and dissents in part.