Robert H. Dudley, Justice.
At his first trial of this case the appellant was convicted of capital murder and sentenced to death. He appealed, and we reversed and remanded because of the improper use of peremptory challenges by the State to exclude black people from the jury. Ward v. State, 293 Ark. 88, 733 S.W.2d 728 (1987). Upon retrial, appellant was again convicted of capital murder, but this time he was sentenced to life in prison without parole. He now appeals from the second conviction. This time, we affirm.
Because appellant argues that the trial court erred in denying his motion for a directed verdict, it is necessary to recite the evidence in some detail. On April 12,1985, Audrey Townsend and Lois Townsend Jarvis, two elderly sisters, and Chris Simmons, their twelve-year-old great-great nephew, were found dead in the sisters’ home in West Memphis. Each, had multiple deep stab wounds. In addition, Audrey Townsend had been raped, and the house had been ransacked. A large knife was found in the kitchen sink. A witness, Ricky Vail, saw the appellant on the night in question close to Vail’s house, which was just across the street from the victims’ house. Audrey Townsend’s vagina contained semen from someone who had type O blood and who secreted the H factor into his blood; appellant had type O blood and is a secretor of the H factor. A hair was found on the underwear which Audrey Townsend was wearing when she was raped and murdered; that hair is microscopically similar to hair taken from appellant’s head. A pubic hair was removed from the pubic area of Audrey Townsend; that hair had the same microscopic characteristics as a hair taken from appellant’s pubic area. Two hairs were found on a sweater seized from appellant’s bedroom; one, a pubic hair, was microscopically similar to the pubic hair of Lois Townsend Jarvis, and the other was microscopically similar to the hair on the head of Chris Simmons. Appellant’s fingerprints were found on broken pieces of glass which were recovered from the crime scene. Appellant’s fingerprints were on an insurance notice which was found at the crime scene. His fingerprint was found on a window pane at the rear of the victims’ house. His fingerprint was found on a light bulb which was near the back door of the victims’ house. His fingerprints were found on the doorknob of a closet in a bedroom of the victims’ house. His fingerprints were found on the kitchen window of the house. Appellant gave a lengthy in-custodial statement in which he said that someone named Ike forced him to break in, ransack the house, leave his fingerprints all about, rape Audrey Townsend, and then Ike committed the murders; appellant never could recall Ike’s last name, nor could he locate him. Just before the initial hearing, the police heard appellant tell his attorney, “Um, something just came over me, its just like, I didn’t mean to, just something came over me, made me go in that house and stuff like that, I didn’t, I just wasn’t myself.”
Appellant contends that the foregoing evidence does not show that he acted with a premeditated and deliberated purpose in killing two or more people in one criminal episode. See Ark. Code Ann. § 5-10-101 (a)(4) (Supp. 1987). In order to prove that an accused acted with a premeditated and deliberated purpose the State must prove: (1) that the accused had the conscious object to cause the death of another; (2) that the accused formed the intention of causing the death before acting; and (3) that the accused weighed in his mind the consequences of a course of conduct, as distinguished from acting suddenly on impulse without the exercise of reasoning power. Ford v. State, 276 Ark. 98, 633 S.W.2d 3, cert. denied, 459 U.S. 1022 (1982). A defendant’s premeditated and deliberated culpable mental state can be inferred from the circumstances of the murder, such as the character of the weapon used, the manner in which it was used, the nature, extent, and locations of the wounds inflicted, and the conduct of the accused. Ricketts v. State, 292 Ark. 256, 729 S.W.2d 400 (1987). Premeditation and deliberation are not required to exist for any particular length of time and may, in fact, be formed in an instant. Garza v. State, 293 Ark. 175, 735 S.W.2d 702 (1987). Such intent may and often must be inferred from circumstantial evidence. Garza v. State, supra.
Here, breaking into the victims’ house, ransacking the house, raping one of the women, and then inflicting numerous, deep, and fatal stab wounds with a large knife upon three different victims is substantial circumstantial evidence of a premeditated and deliberated culpable mental state.
Appellant next argues that the trial court erred in excluding the proffered testimony of John Golden. The argument is without merit. Appellant wanted to call John Golden to testify that a Ricky Smith had supposedly told Golden that Smith and another man had planned to kill three white people in West Memphis, take their cocaine, and blame it on a fifteen-year-old boy named Ward (appellant). Ricky Smith was available to testify but appellant apparently did not want to call him because he would deny having ever made such a statement. Appellant sought to introduce Smith’s alleged hearsay statement through Golden by A.R.E. § 803(24), the residual exception. The rule provides that a statement should not be excluded as hearsay, even though the declarant is available, when the statement is trustworthy and reliable. A good example of the rule in use is where a postmark, which is reliable hearsay, is offered to prove that a letter was mailed from the city shown on the postmark. See U.S. v. Cowley, 720 F.2d 1037 (9th Cir.), cert. denied, 465 U.S. 1029 (1983). We have said it “must have circumstantial guarantees of trustworthiness equivalent to those supporting common law exceptions.” Blaylock v. Strecker, 291 Ark. 340, 350, 724 S.W.2d 470, 475 (1987). It is intended that the residual hearsay exception rule will be used very rarely, and only in exceptional circumstances. Cotchett and Elkind, Federal Courtroom Evidence 286 (1987).
In determining trustworthiness or reliability, we ordinarily will not look so much to the reliability of the original declarant,, but instead to the reliability of the statement itself. This is because the reliability or credibility of the declarant is more a matter for the jury, rather than a matter of admissibility. However, in this case, there was testimony that John Golden had been in a mental institution, was presently under the care of a psychiatrist, is easily misled, is prone to fantasize, gets confused often, makes up stories to fit a situation, and “lives in his own world.” More importantly, John Golden originally told the police that on April 11, one day before the murders, that Ricky Smith had stolen a large amount of money and asked for a ride to Horn Lake, Mississippi. Golden told the police he took Smith to an apartment in Horn Lake where they saw a white man dressed in cowboy attire. Golden did not mention Smith blaming the murders or anything else on appellant.
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Robert H. Dudley, Justice.
At his first trial of this case the appellant was convicted of capital murder and sentenced to death. He appealed, and we reversed and remanded because of the improper use of peremptory challenges by the State to exclude black people from the jury. Ward v. State, 293 Ark. 88, 733 S.W.2d 728 (1987). Upon retrial, appellant was again convicted of capital murder, but this time he was sentenced to life in prison without parole. He now appeals from the second conviction. This time, we affirm.
Because appellant argues that the trial court erred in denying his motion for a directed verdict, it is necessary to recite the evidence in some detail. On April 12,1985, Audrey Townsend and Lois Townsend Jarvis, two elderly sisters, and Chris Simmons, their twelve-year-old great-great nephew, were found dead in the sisters’ home in West Memphis. Each, had multiple deep stab wounds. In addition, Audrey Townsend had been raped, and the house had been ransacked. A large knife was found in the kitchen sink. A witness, Ricky Vail, saw the appellant on the night in question close to Vail’s house, which was just across the street from the victims’ house. Audrey Townsend’s vagina contained semen from someone who had type O blood and who secreted the H factor into his blood; appellant had type O blood and is a secretor of the H factor. A hair was found on the underwear which Audrey Townsend was wearing when she was raped and murdered; that hair is microscopically similar to hair taken from appellant’s head. A pubic hair was removed from the pubic area of Audrey Townsend; that hair had the same microscopic characteristics as a hair taken from appellant’s pubic area. Two hairs were found on a sweater seized from appellant’s bedroom; one, a pubic hair, was microscopically similar to the pubic hair of Lois Townsend Jarvis, and the other was microscopically similar to the hair on the head of Chris Simmons. Appellant’s fingerprints were found on broken pieces of glass which were recovered from the crime scene. Appellant’s fingerprints were on an insurance notice which was found at the crime scene. His fingerprint was found on a window pane at the rear of the victims’ house. His fingerprint was found on a light bulb which was near the back door of the victims’ house. His fingerprints were found on the doorknob of a closet in a bedroom of the victims’ house. His fingerprints were found on the kitchen window of the house. Appellant gave a lengthy in-custodial statement in which he said that someone named Ike forced him to break in, ransack the house, leave his fingerprints all about, rape Audrey Townsend, and then Ike committed the murders; appellant never could recall Ike’s last name, nor could he locate him. Just before the initial hearing, the police heard appellant tell his attorney, “Um, something just came over me, its just like, I didn’t mean to, just something came over me, made me go in that house and stuff like that, I didn’t, I just wasn’t myself.”
Appellant contends that the foregoing evidence does not show that he acted with a premeditated and deliberated purpose in killing two or more people in one criminal episode. See Ark. Code Ann. § 5-10-101 (a)(4) (Supp. 1987). In order to prove that an accused acted with a premeditated and deliberated purpose the State must prove: (1) that the accused had the conscious object to cause the death of another; (2) that the accused formed the intention of causing the death before acting; and (3) that the accused weighed in his mind the consequences of a course of conduct, as distinguished from acting suddenly on impulse without the exercise of reasoning power. Ford v. State, 276 Ark. 98, 633 S.W.2d 3, cert. denied, 459 U.S. 1022 (1982). A defendant’s premeditated and deliberated culpable mental state can be inferred from the circumstances of the murder, such as the character of the weapon used, the manner in which it was used, the nature, extent, and locations of the wounds inflicted, and the conduct of the accused. Ricketts v. State, 292 Ark. 256, 729 S.W.2d 400 (1987). Premeditation and deliberation are not required to exist for any particular length of time and may, in fact, be formed in an instant. Garza v. State, 293 Ark. 175, 735 S.W.2d 702 (1987). Such intent may and often must be inferred from circumstantial evidence. Garza v. State, supra.
Here, breaking into the victims’ house, ransacking the house, raping one of the women, and then inflicting numerous, deep, and fatal stab wounds with a large knife upon three different victims is substantial circumstantial evidence of a premeditated and deliberated culpable mental state.
Appellant next argues that the trial court erred in excluding the proffered testimony of John Golden. The argument is without merit. Appellant wanted to call John Golden to testify that a Ricky Smith had supposedly told Golden that Smith and another man had planned to kill three white people in West Memphis, take their cocaine, and blame it on a fifteen-year-old boy named Ward (appellant). Ricky Smith was available to testify but appellant apparently did not want to call him because he would deny having ever made such a statement. Appellant sought to introduce Smith’s alleged hearsay statement through Golden by A.R.E. § 803(24), the residual exception. The rule provides that a statement should not be excluded as hearsay, even though the declarant is available, when the statement is trustworthy and reliable. A good example of the rule in use is where a postmark, which is reliable hearsay, is offered to prove that a letter was mailed from the city shown on the postmark. See U.S. v. Cowley, 720 F.2d 1037 (9th Cir.), cert. denied, 465 U.S. 1029 (1983). We have said it “must have circumstantial guarantees of trustworthiness equivalent to those supporting common law exceptions.” Blaylock v. Strecker, 291 Ark. 340, 350, 724 S.W.2d 470, 475 (1987). It is intended that the residual hearsay exception rule will be used very rarely, and only in exceptional circumstances. Cotchett and Elkind, Federal Courtroom Evidence 286 (1987).
In determining trustworthiness or reliability, we ordinarily will not look so much to the reliability of the original declarant,, but instead to the reliability of the statement itself. This is because the reliability or credibility of the declarant is more a matter for the jury, rather than a matter of admissibility. However, in this case, there was testimony that John Golden had been in a mental institution, was presently under the care of a psychiatrist, is easily misled, is prone to fantasize, gets confused often, makes up stories to fit a situation, and “lives in his own world.” More importantly, John Golden originally told the police that on April 11, one day before the murders, that Ricky Smith had stolen a large amount of money and asked for a ride to Horn Lake, Mississippi. Golden told the police he took Smith to an apartment in Horn Lake where they saw a white man dressed in cowboy attire. Golden did not mention Smith blaming the murders or anything else on appellant. Even though the police had not had a report of anyone stealing money, they went to the apartment, which turned out to be a duplex, and found a black man occupied one side and a white man the other. Neither wore cowboy attire nor knew Smith. Later, after the murders had occurred, and after the media reports of them, Golden began to change his story. He also asked for a reward. Still, it was not until the first trial of this case that Golden disclosed any information, supposedly gained on the way to Horn Lake, about Smith disclosing a plot to blame appellant for the murders. Golden’s statement clearly did not meet the standard for trustworthiness or reliability.
The appellant next argues that the trial court erred in admitting an in-custodial statement. This argument is also without merit. The appellant was given his Miranda warning and gave an inculpatory statement. A few days later two policemen took him to the Municipal Court in West Memphis for the appointment of a defense attorney and the setting of bond. One of the policemen took along a tape recorder. It was in plain sight as it had a strap which was around the policeman’s neck. The officers, the appellant, and the public defender were standing in a hallway just outside the courtroom. The public defender twice asked the appellant if the police had explained his rights. He responded affirmatively both times. He then specifically asked appellant if he understood that anything he said could be used against him. Again, he answered, “yes sir.” The attorney again cautioned appellant to keep that warning in mind and even again asked if appellant understood that anything he said could be used against him. The appellant again said he understood. In other words, the public defender twice asked appellant if he understood his rights and twice specifically asked if he understood that anything he said could be used against him. All four responses were “yes.” Counsel further advised appellant to keep that warning in mind. The public defender asked appellant if there was anything which appellant wanted the attorney to tell the judge. The appellant said he had never been in trouble before, and then, in front of the police, blurted out another incriminating statement.
The actions of the public defender do not constitute ineffective assistance of counsel. The appellant did not offer any proof about the layout of the courtroom or any adjacent rooms, or whether the attorney could have held a private conversation with appellant. The attorney was not called and asked about the circumstances of the event or surroundings. The public defender did not ask a question which caused the incriminating statement. Certainly, after the four questions about appellant’s rights, and four affirmative responses, plus the warning, counsel could not have anticipated that the appellant would blurt out an incriminating statement.
Even if counsel’s conduct were professionally unreasonable, the judgment of conviction must stand because appellant has not demonstrated that the error had a prejudicial effect on the outcome of his trial. See Strickland v. Washington, 466 U.S. 668 (1984) and Pruett v. State, 287 Ark. 124, 697 S.W.2d 872 (1985) .
The appellant, who was fifteen years old at the time he committed the murders, next argues that the trial court committed error in excluding three prospective jurors because they were unalterably opposed to the death penalty. See Thompson v. Oklahoma, _U.S. _, 108 S. Ct. 2687 (1988). The appellant raised this point at his first trial, but did not raise it at the second trial. It was necessary for him to bring the issue before the trial court at the second trial in order to have the issue preserved for this second appeal. When a case is broadly remanded for a new trial, as this one was, evidentiary objections must be made, the same as if there had been no first trial. See Sanders v. Walden, 214 Ark. 523, 217 S.W.2d 357 (1949).
However, even if the issue had been preserved, and even if Thompson v. Oklahoma, supra, were a clear majority opinion dictating that appellant could not be sentenced to death, we would not reverse. Here, the State sought the death penalty in a bifurcated trial. Accordingly, the jury was death qualified. However, after the jury took thirteen hours to decide the guilt phase of the trial, the prosecutor apparently realized the improbability of the jury imposing the death penalty, and waived the second phase, or death penalty phase, of the trial. If a defendant in a capital case does not receive the death penalty, he cannot obtain reversal of his conviction and sentence on appeal by pointing to errors having to do with the jury’s consideration of the death penalty. Allen v. State, 296 Ark. 33, 39, 751 S.W.2d 347, 350 (1988). In addition, because the State had not yet decided to waive its right to seek a death sentence when the jury was picked, the trial court did not err in death qualifying the jury. See Buchanan v. Kentucky, 483 U.S. 402 (1987), which held that a joint trial of a defendant, against whom the death penalty is not sought, along with a co-defendant, against whom the death penalty is sought, does not deprive the defendant of his right to an impartial jury if the jury is death qualified.
Appellant’s next two points of appeal are governed by the law of the case doctrine. See Hickerson v. State, 286 Ark. 450, 693 S.W.2d 58 (1985). First, he argues that five photographs were unfairly prejudicial. These same photographs were admitted in the first trial, and we approved their use. Ward v. State, 293 Ark. at 101. Second, he argues that the use of his fingerprints was error. We have already rejected that argument. Ward v. State, supra, 293 Ark. at 99-100.
Pursuant to Rule 11 (f) of the Rules of the Supreme Court and Court of Appeals of Arkansas, we state that we find no unassigned error which would cause reversal of this sentence to life without parole.
Affirmed.
Purtle, J., dissents.