{ "id": 1904382, "name": "Bruce Earl WARD v. STATE of Arkansas", "name_abbreviation": "Ward v. State", "decision_date": "1992-02-24", "docket_number": "CR 91-36", "first_page": "415", "last_page": "438", "citations": [ { "type": "official", "cite": "308 Ark. 415" }, { "type": "parallel", "cite": "827 S.W.2d 110" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "Ark. Code Ann. \u00a7 5-4-605", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "opinion_index": 0 }, { "cite": "752 S.W.2d 762", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1893808 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/295/0682-01" ] }, { "cite": "295 Ark. 692", "category": "reporters:state", "reporter": "Ark.", "year": 1988, "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 5-4-603", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1991, "opinion_index": 0 }, { "cite": "304 Ark. 393", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1881001 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/304/0393-01" ] }, { "cite": "267 Ark. 527", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1719780 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/ark/267/0527-01" ] }, { "cite": "269 Ark. 90", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1712442 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/269/0090-01" ] }, { "cite": "306 Ark. 283", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1900944 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/306/0283-01" ] }, { "cite": "295 Ark. 456", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1893716 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/295/0456-01" ] }, { "cite": "297 Ark. 115", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1891340 ], "weight": 3, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/297/0115-01" ] }, { "cite": "308 Ark. 178", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1904393 ], "weight": 5, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/308/0178-01" ] }, { "cite": "486 U.S. 578", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6221342 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "585" } ], "opinion_index": 0, "case_paths": [ "/us/486/0578-01" ] }, { "cite": "296 Ark. 451", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1892749 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/296/0451-01" ] }, { "cite": "302 Ark. 447", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1884306 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/302/0447-01" ] }, { "cite": "291 Ark. 521", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1872655 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark/291/0521-01" ] }, { "cite": "293 Ark. 524", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1869720 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark/293/0524-01" ] }, { "cite": "274 Ark. 440", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1755029 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/ark/274/0440-01" ] }, { "cite": "305 Ark. 180", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1916831 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/305/0180-01" ] }, { "cite": "287 Ark. 322", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1876608 ], "weight": 3, "year": 1985, "opinion_index": 0, "case_paths": [ "/ark/287/0322-01" ] }, { "cite": "296 Ark. 41", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1892765 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/296/0041-01" ] }, { "cite": "306 Ark. 443", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1900959 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/306/0443-01" ] }, { "cite": "299 Ark. 144", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1888403 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/299/0144-01" ] }, { "cite": "278 Ark. 420", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1748257 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/ark/278/0420-01" ] }, { "cite": "304 Ark. 514", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1880911 ], "weight": 3, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/304/0514-01" ] }, { "cite": "269 Ark. 104", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1712466 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/269/0104-01" ] }, { "cite": "298 Ark. 55", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1889875 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/298/0055-01" ] }, { "cite": "300 Ark. 280", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1886787 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/300/0280-01" ] }, { "cite": "306 Ark. 483", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1900939 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/306/0483-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-10-102", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1991, "pin_cites": [ { "page": "(a)(2)" } ], "opinion_index": 0 }, { "cite": "484 U.S. 231", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 600972 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "246" } ], "opinion_index": 0, "case_paths": [ "/us/484/0231-01" ] }, { "cite": "295 Ark. 57", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1893710 ], "weight": 3, "year": 1988, "pin_cites": [ { "page": "64, 56" } ], "opinion_index": 0, "case_paths": [ "/ark/295/0057-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-4-604", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "year": 1991, "pin_cites": [ { "page": "(3)" } ], "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 5-10-101", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1991, "opinion_index": 0 }, { "cite": "291 Ark. 596", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1872648 ], "weight": 2, "year": 1987, "opinion_index": 1, "case_paths": [ "/ark/291/0596-01" ] }, { "cite": "154 S.W. 215", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 1 }, { "cite": "107 Ark. 158", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1344020 ], "opinion_index": 1, "case_paths": [ "/ark/107/0158-01" ] }, { "cite": "206 Ark. 998", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1485003 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/ark/206/0998-01" ] }, { "cite": "100 S.W.2d 676", "category": "reporters:state_regional", "reporter": "S.W.2d", "pin_cites": [ { "page": "677" } ], "opinion_index": 1 }, { "cite": "193 Ark. 426", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1411142 ], "pin_cites": [ { "page": "428" } ], "opinion_index": 1, "case_paths": [ "/ark/193/0426-01" ] }, { "cite": "217 Ark. 679", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8723506 ], "weight": 3, "year": 1950, "pin_cites": [ { "page": "990" } ], "opinion_index": 1, "case_paths": [ "/ark/217/0679-01" ] }, { "cite": "276 Ark. 98", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1751567 ], "weight": 2, "year": 1982, "opinion_index": 2, "case_paths": [ "/ark/276/0098-01" ] }, { "cite": "269 Ark. 341", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1712463 ], "weight": 2, "year": 1980, "opinion_index": 2, "case_paths": [ "/ark/269/0341-01" ] }, { "cite": "302 Ark. 371", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1884296 ], "weight": 2, "year": 1990, "opinion_index": 2, "case_paths": [ "/ark/302/0371-01" ] }, { "cite": "304 Ark. 257", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1880918 ], "weight": 2, "year": 1990, "opinion_index": 2, "case_paths": [ "/ark/304/0257-01" ] } ], "analysis": { "cardinality": 1438, "char_count": 38185, "ocr_confidence": 0.922, "pagerank": { "raw": 3.018989317692199e-07, "percentile": 0.8537576901201576 }, "sha256": "ed10d10f3fbbab2b6409c6725177fa86c5b15b79c9fcfeb3785c325f3fc52931", "simhash": "1:526ee0e7366a19ba", "word_count": 6340 }, "last_updated": "2023-07-14T18:22:40.186541+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Holt, C.J., Dudley and Newbern, JJ., dissent in part; concur in part.", "Hays, J., concurs in part; dissents in part.", "Holt, C.J., and Newbern, J. join in this opinion concurring in part and dissenting in part." ], "parties": [ "Bruce Earl WARD v. STATE of Arkansas" ], "opinions": [ { "text": "Donald L. Corbin, Justice.\nAppellant Bruce Earl Ward was convicted by a Pulaski County jury of the capital murder of Rebecca Doss. The jury imposed the sentence of death by lethal injection. On appeal, appellant raises six allegations of error, most of which are confined to the propriety of the death sentence. While we find no reversible error in appellant\u2019s conviction, we agree with appellant that prejudicial error occurred in the trial\u2019s sentencing phase. Consequently, we affirm appellant\u2019s conviction yet reverse the death sentence and remand for resentencing\nAppellant\u2019s initial argument raises two challenges to the constitutionality of the capital murder statute, Ark. Code Ann. \u00a7 5-10-101 (Supp. 1991). As we have previously addressed appellant\u2019s constitutional arguments, our discussion will be brief. First, appellant argues that the homicide statutes\u2019 1989 revisions, which upgraded \u201cpremeditated and deliberated\u201d murder from first-degree murder to capital murder, violate the constitutional prohibition against sentencing guidelines that fail to sufficiently narrow jury discretion in death penalty cases.\nUnder Ark. Code Ann. \u00a7 5-4-604 (Supp. 1991), the death penalty may not be imposed unless the state can prove the existence of an \u201caggravating circumstance.\u201d In O\u2019Rourke v. State, 295 Ark. 57, 746 S.W.2d 52 (1988), we emphasized the following language from the Supreme Court\u2019s decision in Lowenfield v. Phelps, 484 U.S. 231 (1988), where the Supreme Court explained that, in order to genuinely narrow the class of persons eligible for the death penalty, a state may choose between two capital sentencing schemes:\nThe legislature may itself narrow the definition of capital offenses,... so that the jury finding of guilt responds to this concern, or the legislature may more broadly define capital offenses and provide for narrowing by jury findings of aggravating circumstances at the penalty phase.\nO\u2019Rourke, supra, at 64, 56 (quoting Lowenfield, supra, at 246).\nUnder Arkansas\u2019 revised capital sentencing scheme, the constitutionally-required narrowing function is provided by the \u201caggravating circumstance\u201d requirement at the penalty phase. Since appellant would not have been eligible for the death penalty in the absence of any aggravating circumstance, we find that the sentencing scheme passes constitutional muster.\nAppellant\u2019s second constitutional challenge is that the elements of \u201cpremeditated and deliberated\u201d capital murder, section 5-10-101 (a)(4), and the elements of \u201cpurposeful\u201d first-degree murder, Ark. Code Ann. \u00a7 5-10-102(a)(2) (Supp. 1991), impermissibly overlap. We have previously rejected this argument based on the same rationale we have used to uphold capital felony murder and first degree felony murder. Smith v. State, 306 Ark. 483, 815 S.W.2d 922 (1991). As long as there is no impermissible uncertainty in the definitions of these offenses, the mere existence of any overlapping does not render a statute constitutionally infirm. Sellers v. State, 300 Ark. 280, 778 S.W.2d 603 (1989); White v. State, 298 Ark. 55, 764 S.W.2d 613 (1989); Cromwell v. State, 269 Ark. 104, 598 S.W.2d 733 (1980).\nAppellant\u2019s second argument is that the trial court erred in restricting defense counsel\u2019s questioning of prospective jurors regarding the jurors\u2019 opinions of the death penalty. We have stated that the purpose of voir dire examination is 1) to gain knowledge for the intelligent exercise of peremptory challenges. Bryant v. State, 304 Ark. 514, 803 S.W.2d 546 (1991); Sanders v. State, 278 Ark. 420, 646 S.W.2d 14 (1983); Ark. R. Crim. P. 32.2, According to appellant, the restrictions imposed by the trial judge thwarted appellant\u2019s intelligent exercise of his peremptory challenges.\nThe abstract indicates that defense counsel asked prospective jurors several questions relating to whether they considered \u201clife without parole\u201d a serious penalty. Defense counsel then asked whether the juror believed in the death penalty. The court informed defense counsel that she could ask the jurors whether they were \u201cin favor of or against\u201d the death penalty. However, the court instructed defense counsel not to \u201cgo through all this other malarky\u201d before eliciting the jurors\u2019 opinions of the death penalty.\nThe extent and scope of voir dire lies within the trial court\u2019s sound discretion, and we will not reverse absent a clear abuse of discretion. Bryant, supra. In this case, the trial court stated that the manner and phrasing of defense counsel\u2019s questions amounted to \u201cintimidation.\u201d We cannot say that the limited restriction imposed by the trial judge constituted an abuse of his sound discretion. See also Ruiz v. State, 299 Ark. 144, 772 S.W.2d 297 (1989).\nAppellant\u2019s third allegation of error is that the trial court erred in refusing to suppress incriminating statements and drawings that the police obtained from appellant prior to and subsequent to appellant\u2019s arrest. Appellant\u2019s suppression argument is divided into two specific sub-arguments: first, he argues that the statements made prior to his arrest should have been suppressed because he made the statments before being informed of his Miranda rights; second, he argues that the evidence obtained after his arrest should have been suppressed because he did not knowingly, voluntarily, and intelligently waive his Miranda rights. In reviewing a trial judge\u2019s decision on a motion to suppress, this court makes an independent determination based upon the totality of the circumstances, and we reverse only if the trial court\u2019s ruling was clearly against the preponderance of the evidence. Porchia v. State, 306 Ark. 443, 815 S.W.2d 926 (1991).\nSeveral police officers testified about the circumstances surrounding the discovery of the victim\u2019s body and appellant\u2019s apprehension. Office Mike Middleton testified that he was on his routine patrol during the early morning of August 11,1989, when^ he noticed the absence of a clerk in the Jackpot store on Rodney Parham near Markham. After entering the store, calling for the clerk, and identifying himself as a police officer, Middleton radioed for backup help and exited the store. Middleton then observed appellant approaching from the store\u2019s restroom area towards a motorcycle. Middleton requested appellant to \u201chold on a minute,\u201d and informed appellant that the clerk was missing after appellant asked what was wrong. At that point, appellant told Middleton that he had been drinking hot chocolate in the store, that the clerk had given him a key to the restroom, and that the clerk was in the back.\nMeanwhile, Office Stubenrauch, a backup officer had arrived, and Middleton asked Stubenrauch to detain appellant while Middleton reentered the store. Appellant repeated to Stubenrauch the earlier account he had told to Middleton, and also told Stubenrauch that the clerk has instructed him to use the women\u2019s restroom. Officer Timmons, another backup officer, arrived shortly thereafter, and proceeded to check the store\u2019s restrooms. He found the body of the store\u2019s clerk, Rebecca Doss, in the floor of the women\u2019s restroom. At that point, appellant was arrested, handcuffed and searched, and advised of his Miranda rights. On the way to the police station, appellant stated that he had not hurt anybody, and again repeated his account of his encounter with the victim.\nAppellant next spoke with police officers at approximately 5 a.m. the same morning, when Officers Stafford and Smith approached him in an interview room at the police station. The officers testified that appellant was again advised of his Miranda rights, that appellant understood his rights, and that appellant agreed to talk to the officers on the condition that his statement not be taped. Appellant refused to sign the waiver of rights form, yet told the officers that while he was at the Jackpot store, he had gotten the clerk to help him with the restroom key but had no knowledge of what had subsequently happened to the clerk. Appellant also indicated, on a drawing of the bathrooms, the location of the fixtures in the restroom he had used at the Jackpot Store.\nUnder Ark. R. Crim. P. 2.2, a police officer may request a person to furnish information by answering questions regarding the investigation of a crime. In situations where an officer has a \u201creasonable suspicion\u201d that a suspect is involved in a crime, Ark. R. Crim. P. 3.1 provides that the officer may stop and detain the suspect for fifteen minutes or for such time as is \u201creasonable under the circumstances.\u201d While appellant argues that the statements made prior to his arrest should be suppressed because he was not advised of his Miranda rights, the Miranda warning is not required unless the statements were a result of custodial interrogation. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988); Shelton v. State, 287 Ark. 322, 699 S.W.2d 728 (1985). See also Weaver v. State, 305 Ark. 180, 806 S.W.2d 615 (1991). The Miranda warning is not required for voluntary, spontaneous statements. Shelton, supra; Hayes v. State, 274 Ark. 440, 625 S.W.2d 498 (1981). In this case, the statements appellant made at the scene were clearly voluntary and spontaneous. As the record indicates that appellant\u2019s on-the-scene statements were not elicited by police questioning, the Miranda warning was not required.\nAppellant also argues that the statements and drawings he made while in custody should be suppressed because they were a product of police coercion. Appellant testified that he requested an attorney numerous times, and that the questioning officers attempted to coerce a confession by cajoling him and threatening him with a \u201ctaser\u201d or stun gun. Appellant\u2019s suppression argument also relies on the fact that appellant did not sign a waiver form before making his custodial statements and drawings.\nWe have held that the failure to obtain an explicit waiver of rights form will not necessarily preclude a voluntary confession. Cope v. State, 293 Ark. 524, 739 S.W.2d 533 (1987). Rather, a confession may be upheld on the basis of an implied waiver. Id.; Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987). In this case, the trial judge heard considerable police testimony regarding the circumstances of appellant\u2019s custodial statements and drawings. While appellant\u2019s version of the circumstances differs considerably from that of the officers\u2019, we have held that any conflict in witnesses\u2019 testimony is for the trial court to resolve. State v. Massery, 302 Ark. 447, 790 S.W.2d 175 (1990); Smith v. State, 296 Ark. 451, 757 S.W.2d 554 (1988). Given the significant amount of evidence presented to the trial judge regarding the essential elements of a valid waiver, we find no clear error in the trial court\u2019s refusal to suppress.\nAppellant\u2019s last three arguments for reversal allege errors in the sentencing phase of the trial. His fourth allegation of error is that the trial court erred in allowing the state to introduce photographs and police testimony concerning appellant\u2019s prior conviction of voluntary manslaughter in Pennsylvania. Under Ark. Code Ann. \u00a7 5-4-604(3) (Supp. 1991), proof that a defendant previously committed another felony involving violence establishes an aggravating circumstance, rendering the defendant eligible for the death penalty. In this case, appellant does not dispute that his prior manslaughter conviction constituted an aggravating circumstance. However, he argues that undue prejudice resulted from the admission of photographs and testimony concerning this prior conviction because the state could conclusively prove an aggravating circumstance with the prior conviction alone. We disagree.\nIn Johnson v. Mississippi, 486 U.S. 578 (1988), the Supreme Court held that a finding of aggravating circumstances based on a prior felony conviction could not stand if the prior felony conviction was later overturned. The Supreme Court noted that the prosecutor in Johnson had relied solely on the document of conviction, and had not introduced any evidence relating to the prior felony itself. Id. at 585. We recently relied on the Johnson holding in Sanders v. State, 308 Ark. 178, 824 S.W.2d 353 (1992), to remand a death sentence for resentencing. In the Sanders case, the state relied solely on the defendant\u2019s prior conviction to establish the aggravating circumstance of a previous felony.\nIn this case, if the state did not introduce evidence regarding the circumstances of appellant\u2019s prior manslaughter conviction, the validity of the jury\u2019s aggravating circumstances finding would remain contingent upon Pennsylvania not reversing appellant\u2019s prior conviction. In light of the Johnson holding, the probative value of the extraneous evidence increases significantly. However, we must still determine under Ark. R. Evid. 403 whether the probative value of the photographs and testimony is substantially outweighed by the danger of unfair prejudice.\nWe have held that the question of prejudicial effect versus probative value is a matter addressed to the discretion of the trial judge. Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988); Harris v. State, 295 Ark. 456, 748 S.W.2d 666 (1988). On appeal, this court will not disturb the trial court\u2019s decision in the absence of manifest abuse of that discretion. Bennett, supra. We have repeatedly applied our deferential standard of review to the admission of photographic evidence, Qualls v. State, 306 Ark. 283, 812 S.W.2d 681 (1991); Robinson v. State, 269 Ark. 90, 598 S.W.2d 421 (1980), and stated that photographs will not be excluded simply because they are gruesome. Williams v. State, 267 Ark. 527, 593 S.W.2d 8 (1979).\nIn this case, the photographs depicted the body of a young woman, naked from below the torso, lying in a wooded area with the contents of her purse strewn out beside her. These photos are not particularly gruesome and are black and white. A Pennsylvania police officer testified to finding the body and to the condition of the body. He testified that the woman had marks on her neck and that the scraped condition of her knuckles indicated that she had been dragged. He further testified to discovering a photograph of appellant and appellant\u2019s phone number when he examined the contents of the victim\u2019s purse.\nIn this case, the photographs and testimony were relevant in establishing the aggravating circumstances of a previously committed felony, and in illuminating the facts for the jury\u2019s consideration. We discern no abuse of discretion.\nAppellant\u2019s fifth allegation of error is that the trial court erred in admitting a collection of Pennsylvania documents relating to appellant\u2019s prior manslaughter conviction. State\u2019s Exhibit No. 18 contained a felony information charging appellant with murder, and an affidavit alleging that appellant raped and robbed the Pennsylvania victim. We agree with appellant that the admission of these unsubstantiated allegations was prejudicial error in the penalty phase of the trial.\nThe state offered no proof that appellant had previously committed the offenses of murder, rape and robbery. While we stated earlier that the state is not limited to admission of a prior conviction in proving that a defendant previously committed a prior felony, mere allegations do not constitute proof. Walker v. State, 304 Ark. 393, 803 S.W.2d 502 (1991). In this case, the prejudicial effect of the rape and robbery allegations was compounded by the photographs depicting an unclothed victim and the testimony regarding the strewn contents of the victim\u2019s purse.\nDuring oral argument before this court, the state conceded error but contended that the erroneous admission of the allegations was harmless. Under Ark. Code Ann. \u00a7 5-4-603 (Supp. 1991), a majority of this court may use harmless error to affirm a defendant\u2019s death sentence only if we can ultimately conclude that the error would not have changed the jury\u2019s decision to impose the death penalty. In Sanders v. State, 308 Ark. 178, 824 S.W.2d 353 (1992), we refused to find harmless error in the defendant\u2019s death sentence because we could not conclude that, absent the error, the jury would have still imposed the death penalty. In the case, as in Sanders, our finding of error does not affect appellant\u2019s eligibility for the death sentence. However, we cannot conclude that the jury would have found that the aggravating circumstance of appellant\u2019s previous felony justified a sentence of death if the jury had not been exposed to the unsupported allegations. Consequently, we reverse on this point and remand for resentencing. Id., Wilson v. State, 295 Ark. 692-A, 752 S.W.2d 762 (1988).\nWe find no merit to appellant\u2019s final allegation of error. Appellant argues that the jury erred in finding no mitigating circumstances because appellant proved, as a matter of Pennsylvania law, that the definition of voluntary manslaughter includes the phrase \u201cacting from serious provocation by the person killed.\u201d\nArk. Code Ann. \u00a7 5-4-605 (1987) provides a nonexclusive list of mitigating circumstances that the jury may consider. The list set out in section 5-4-605 consists of circumstances relating to the capital offense for which the defendant is being sentenced. While this list is not exclusive, and a defendant may submit other circumstances for the jury\u2019s consideration, we reject appellant\u2019s argument that the jury is compelled to find a mitigating circumstance based simply on the definition of the prior offense that established the aggravating circumstance. As appellant offers no authority to support his novel contention, we find no error in the jury\u2019s finding of no mitigating circumstances.\nThe record has been examined pursuant to Ark. Sup. Ct. R. 11(f) and find no additional prejudicial error. For the reasons stated above, we affirm appellant\u2019s conviction but reverse the death sentence and remand for resentencing.\nHolt, C.J., Dudley and Newbern, JJ., dissent in part; concur in part.\nHays, J., concurs in part; dissents in part.", "type": "majority", "author": "Donald L. Corbin, Justice." }, { "text": "Robert H. Dudley, Justice,\nconcurring in part; dissenting in part. The appellant was convicted of capital murder. The majority opinion holds that the trial court erred in allowing the State to prove that the appellant had been previously charged with murder, rape, and robbery, even though he was not convicted of those charges. I wholeheartedly agree with the majority in that holding. That error occurred in the sentencing phase of the bifurcated trial, and therefore, the majority reverses only the sentencing phase of the case. As a result, the case will go back to the trial court only to decide whether the appellant is again sentenced to die by lethal injection, or is to be sentenced to life in prison without parole. I would agree with the majority that reversing for resentencing only was correct if I truly thought the appellant had received a fair trial in the guilt phase of the bifurcated trial. However, my review of this case under Rule 11(f) of the Rules of the Supreme Court and Court of Appeals leads me to the conclusion that the appellant did not receive a fair trial in the guilt phase. As a result, I would reverse and remand the whole case for retrial.\nWe have long held that a trial judge should manifest the most impartial fairness in the conduct of a trial, especially in a capital case. A trial judge is held in high esteem by the jurors, and any indication by a judge that he favors one side or the other might influence the minds of the jurors. In this case the trial judge allowed the prosecuting attorney and his deputies to approach the bench, but would not allow the defense attorneys to do the same. The trial judge seemed to delight in denying the defense the opportunity to approach the bench. The record reflects the following. At the suppression hearing all of the police officers testified that the appellant said he would not sign a waiver of rights form nor would he agree to a taped interview nor would he make a written statement. While the appellant was under arrest and in custody, he stated that he was at the service station, the victim allowed him to use the ladies\u2019 restroom, and he never saw her again. One of the policemen drew a diagram of both the men\u2019s and women\u2019s restrooms at the service station and asked the appellant to circle the one the victim unlocked for him. The bathroom that he marked, and said he was allowed into, was the one in which she was found murdered. The defense attorneys moved to suppress the diagram, and the trial court held a suppression hearing. The trial court denied the motion to suppress. Then, at the trial on the merits, during the testimony of detective Mark Stafford, the subject again came up, and defense counsel attempted to renew the motion to preserve his record. It came about as follows.\nMS. LaRUE [Deputy Prosecutor]:\nQ: Detective, I\u2019m showing you what\u2019s now been marked State\u2019s Exhibit 14 and I\u2019d ask you if you could identify this.\nA: Okay. This is a diagram that I had drawn. I put the squares in reflecting where the store is. Also drew two squares showing the men\u2019s restroom \u2014\nQ: Detective, I want you to hold that up and I want you to point to it in reference to it so the jury can know what you intended this to be.\nA: This is the front door.\nMR. DEVINE [Defense Attorney]:\nYour Honor, I think she ought to move to have it introduced if she\u2019s going to use it as a piece of evidence.\nTHE COURT:\nI agree with that. Have you got any objections to it? MR. DEVINE:\nYes, Your Honor, I think objections have been noted on the record earlier on this and I would have the same objections at this time.\nTHE COURT:\nRefresh the court\u2019s memory specifically. I don\u2019t remember what they were. Just tell me what they were.\nMR. DEVINE:\nPardon me?\nTHE COURT:\nRefresh the court\u2019s memory. I don\u2019t remember what the objections were. State them specifically. Just stay there. Just stay there.\nMR. DEVINE:\nYour Honor \u2014\nTHE COURT:\nTom, step back. Step back and state them.\nMR. DEVINE:\nI can\u2019t approach the Bench?\nTHE COURT:\nNo. Step back and state your objections.\nMR. DEVINE:\nYour Honor, I think that under the Rules of Evidence I have a right to approach the Bench in order to make an objection.\nTHE COURT:\nMr. Devine, do you want to make your objection? MR. DEVINE:\nYes, your Honor.\nTHE COURT:\nState your objection. You may do so.\nMR. DEVINE:\nThe same objection that we had before.\nTHE COURT:\nRefresh the court\u2019s memory.\nMR. DEVINE:\nYour Honor, if I can approach the Bench I will. THE COURT:\nYou may not. If it\u2019s a legal objection, you can make it from there.\nMR. DEVINE:\nIt is a legal objection. I think under the Rules \u2014 THE COURT:\nOverruled. Go ahead.\nMR. DEVINE:\nof evidence I have a right to approach the Bench also. THE COURT:\nOverruled. Go ahead.\nMR. DEVINE:\nNote our exceptions for the record, your Honor \u2014\nTHE COURT:\nNote the insistence that the Defendant will not make the objection without a side bar of the Court.\nMR. DEVINE:\nYour Honor, I believe under Rule 103 of the Rules of Evidence \u2014\nTHE COURT:\nI\u2019m aware of the rules.\nMR. DEVINE:\n\u2014 we have a right to approach.\nTHE COURT:\nI have the same books you have, Mr. Devine. I\u2019m aware of all of the rules.\nMR. DEVINE:\nYes, your Honor, I know you are.\nTHE COURT:\nGo ahead.\nRecord at 966-68.\nAny fair-minded person would agree that the trial court placed the defense attorney in the position of making a Hobson\u2019s choice. He could either run the risk of waiving the issue or state his objection aloud. Although the jurors might not have understood that the defense attorney was trying to protect his record on suppression of the incriminating evidence, it was certainly clear to every juror that the defense attorney could not approach the bench. Yet, that same morning the trial judge allowed the prosecuting attorney to approach the bench. The trial judge later attempted to explain to the attorneys the reason for the difference in their treatment, as follows:\nTHE COURT:\nIncidentally, for you and Mr. Devine, I don\u2019t let counsel approach the Bench. There\u2019s one time when you can approach the Bench and make a motion. That\u2019s at the end of the State\u2019s case and the end of the Defense\u2019s case for a directed verdict. The rest of the time make it out there. If you\u2019ve got a legal argument, make it. If you haven\u2019t \u2014 If it\u2019s good, I\u2019ll grant it. If it\u2019s not, I won\u2019t.\nBut, now, the exception yesterday was that the prosecutor \u2014 And I allow the prosecutor to come to the Bench sometimes and make motions and objections because they can create mistrial. You all can\u2019t. Yesterday they wanted some security out there with Mr. Doss. And I think it was appropriate. I don\u2019t think it was necessary to approach the Bench. I think if you all had talked you could have agreed and told the court.\nRecord at 1150.\nRegardless of the trial court\u2019s reasons, it was manifest to the jurors that the defense attorneys were not treated the same as the prosecuting attorneys. This is a subject we have often addressed. In Fuller v. State, 217 Ark. 679, 232 S.W.2d 988 (1950), we wrote:\n\u201c. . .a judge presiding at a trial should manifest the most impartial fairness in the conduct of the case. Because of his great influence with the jury, he should refrain from impatient remarks or unnecessary comments which may tend to result prejudicially to a litigant or which might tend to influence the minds of the jury. By his words or conduct he may, on the one hand, support the character and weight of the testimony or may destroy it in the estimation of the jury. Because of his personal and official influence, uncalled for or impatient remarks, although not so intended by him, may give one of the parties an unfair advantage over the other.\u201d Western Coal & Mining Co. v. Kranc, 193 Ark. 426, 428, 100 S.W.2d 676, 677. Also, see McAlister v. State, 206 Ark. 998, 178 S.W.2d 67.\nThe requirement of Art. 7, \u00a7 23, of our Constitution, that \u201cjudges shall not charge juries with regard to matters of fact\u201d, applies as well to the credibility of witnesses and the weight to be given their testimony as to the outright truth or falsity of what they say. St. L.S.W. Ry. Co. v. Britton, 107 Ark. 158, 154 S.W. 215. And it applies not only to what judges tell juries in the course of formal instructions but also to what they say in colloquys with lawyers in the jury\u2019s hearing.\nId. at 682-83, 232 S.W.2d at 990.\nThe action by the trial judge in this case might well have prejudiced the jurors against defense counsel, especially in view of a later comment by the trial judge during closing argument.\nAn error in the merits of the trial occurred as follows. State\u2019s witness Dale Danzeisen testified that between 2:20 and 2:26 a.m. he was in the service station where the murder occurred. The police found the victim\u2019s body at about 2:40 a.m., and because there were no eyewitnesses, witness Danzeisen\u2019s testimony was of extreme importance. On direct examination, witness Danziesen testified that the appellant was in the service station during the time he was there. On cross-examination he stated, \u201cI did not stay around after the defendant came out of the door in a rage.\u201d Record at 1000. The fact that the defendant was at the service station and in a fit of rage could well have been a critical fact in the jurors\u2019 minds. This was a case with only circumstantial evidence. Immediately after testifying that the defendant had been in a fit of rage, the witness admitted that shortly after the murder he gave the police a written statement. In cross-examining the witness about this prior written statement, which did not mention the fit of rage, the following occurred.\nMR. DEVINE [Defense Attorney]:\nOkay. Where does it say he flew out the door in a rage on there?\nMS. LaRUE [Deputy Prosecutor]:\nYour Honor, I\u2019m going to object. This is an improper question. First of all, he\u2019s asking Mr. Danzeisen to refer to a police report that\u2019s been written up by an officer. . . and then typed up.\nMR. DEVINE:\nYour Honor, he\u2019s identified it as his statement he gave to the police.\nTHE COURT:\nI think he has. The form of the question may be a little bit troublesome. . . . But go ahead.\nMR. DEVINE:\nIt doesn\u2019t say that on there, does it? In fact, what it says is, \u201cHe was talking to the clerk who I knew as Becky. When I opened the door, he turned around\u201d \u2014\nMS. LaRUE:\nYour Honor, I\u2019m going to object.\nTHE COURT:\nSustained.\nRecord at 1005-06.\nThe ruling was in error. The appellant should have been allowed to impeach the credibility of the State\u2019s witness by showing that he had made a prior inconsistent statement. A.R.E. Rule 613; McDaniel v. State, 291 Ark. 596, 726 S.W.2d 679 (1987). This witness was one of the State\u2019s most important witnesses, if not the most important, and his testimony about the appellant\u2019s appearance at the scene just before the murder was critical.\nWitness Danziesen also testified that about two weeks before the murder he had heard the appellant say to the victim: \u201cI\u2019d like to take you to the back room and fuck you up the ass.\u201d This testimony obviously lead the jurors to think that appellant was a vulgar person. A subsequent State\u2019s witness, Melissa Gabbard, knew the appellant and, on cross-examination, was asked if the appellant would use the kind of language that witness Danziesen had said he used. She said he would \u201cnot say things like that.\u201d The following then occurred:\nMR. DEVINE [Defense Attorney]:\nDid you ever hear him say anything like that?\nMR. FRAISER [Deputy Prosecutor]:\nYour Honor, I\u2019m going to \u2014\nTHE WITNESS:\nNo.\nMR. FRAISER:\n\u2014 object to this. I believe what they\u2019re doing is it goes to character.\nTHE COURT:\nSustained.\nRecord at 1083.\nThere was no motion to strike the \u201cno\u201d answer. There was a later objection by the State to another question on the basis that \u201cit goes to character.\u201d The court sustained the objection. Whether the court was correct, see A.R.E. Rule 406 with regard to custom and habit, is not of consequence in view of the way the trial court later prejudiced the defense attorneys\u2019 credibility on the issue. That occurred during closing argument as follows:\nMR. DEVINE [Defense Attorney]:\nMr. Danzeisen may have been by there that day. I think Mr. Danzeisen could have even done this. And it\u2019s really easy at that time to try to push it off on somebody else, especially if somebody else had been arrested that you can try to help put another load of dirt on that grave that we\u2019re burying Bruce Ward in. Because that\u2019s what we have. And it\u2019s very easy for Mr. Danziesen to say those things. But Melissa Gabbard gets up here and she says that Bruce Ward doesn\u2019t talk like that.\nMR. PIAZZA [Prosecuting Attorney]:\nObjection, your Honor. That was an objection and it was sustained by the Court.\nTHE COURT:\nLadies and gentlemen, disregard that. It\u2019s not in evidence. You\u2019ll remember the instruction at the time. This is argument of counsel. It\u2019s not evidence.\nRecord at 1127-28.\nIn summary, my Rule 11 (f) review of the rulings by the trial court leads me to the conclusion that the whole case, not just the sentencing part, should be reversed for a fair retrial. Accordingly, I concur in part and dissent in part.\nHolt, C.J., and Newbern, J. join in this opinion concurring in part and dissenting in part.", "type": "concurrence", "author": "Robert H. Dudley, Justice," }, { "text": "Steele Hays, Justice,\nconcurring in part, dissenting in part. The majority concludes that prejudicial error occurred in the penalty phase of the trial because State\u2019s Exhibit 18 contained references to murder, rape and robbery, whereas appellant was convicted of voluntary manslaughter. As to the charge of murder, no error can be assigned to this point. Page five of the exhibit (the verdict) was admitted without objection. It reads in part: \u201cWe the jury find the defendant, Bruce Earl Ward, on the charge of:\nMurder:_\nVoluntary Manslaughter:_GUILTY\nInvoluntary Manslaughter:_\nThus the jury\u2019s awareness of the charge of murder was not preserved for review for the lack of an objection. Moreover, Officer Dominic DiPaolo of the Erie Police Department testified, without objection, that Janet Needham was strangled with the strap of her own purse. In fact, it was undisputed that appellant was charged with murder but the jury convicted on voluntary manslaughter. Thus no claim of error can be grounded on the fact that the appellant was charged with murder.\nAs to the rape and robbery, those were never issues in this case. They were never argued to the jury at any point, indeed, were never mentioned. The only reference to either throughout this record is buried in the fine print within a five page photocopy which is for all practical purposes illegible. (See attached). There is nothing to indicate the jury was even aware of them and, as counsel for the appellant noted (referring to this segment of Exhibit 18), \u201cIt takes a legal scholar to decipher all that.\u201d The state was not attempting to show that appellant was charged with rape or robbery. The state was attempting to show, as an aggravating circumstance, that appellant had committed a previous felony involving violence, and did so simply by offering a certified copy of his conviction papers from Pennsylvania where that conviction occurred.\nWhen the exhibit was offered, the appellant readily agreed that pages four and five were admissible and made only a general objection to the relevancy of the remainder of the exhibit, although the trial court pointedly invited specific objection:\nTHE COURT: Any objections?\n[Counsel for Defense] Your Honor, I\u2019d like to look at them.\n(Thereupon, there was a pause in the proceedings; then the following proceedings occurred:)\nTHE COURT: Any objections?\nCOUNSEL: Your Honor, I do have some.\nTHE COURT: On what grounds?\nCOUNSEL: Y our Honor, I think part of the State\u2019s exhibits would be inadmissible as to relevancy. They\u2019ve clearly got a conviction and I think that, of course, would come in.\nTHE COURT: Well, let\u2019s take them one at a time and be specific.\nThe first one apparently is a certified copy of the judgment that you have admitted that he got convicted of. Right?\nCOUNSEL: It\u2019s more than that, your Honor. It\u2019s the other material that we would object to.\nTHE COURT: Let me see the judgment.\nSpecifically what is your objection to this?\nCOUNSEL: The first few pages, your Honor. I don\u2019t see that they\u2019re relevant. I mean clearly they have the judgment and commitment order and conviction of voluntary manslaughter. It takes a legal scholar to decipher all that. I think they\u2019ve got it in the last two pages. And I have no problem with the last two pages.\nTHE COURT: Well, without going through this, is this the information, charging \u2014\nMRS. LaRUE: That\u2019s the information that was\nfiled.\nTHE COURT: That\u2019s already before the jury. You asked about it. You asked on redirect that he was disappointed that he didn\u2019t get more.\nI don\u2019t know what the prejudice is. They know this. So, if your only objection is relevancy \u2014\nCOUNSEL: Your Honor, I think it\u2019s confusing to the issue.\nTHE COURT: Well, they probably couldn\u2019t understand this. And, if your objection is relevancy, I\u2019ll overrule it.\nCOUNSEL: That\u2019s my objection, your Honor.\nTHE COURT: Okay. I\u2019ll let it in for whatever weight they want to give it. His conviction for voluntary manslaughter is admitted. And that\u2019s what this purports to prove by the rules of evidence. So, we\u2019ll let that in. [My emphasis.]\nHad counsel objected because the state had not offered evidence of rape or robbery and it would be prejudicial to the appellant for that part of the exhibit to be admitted, the alleged error might well have been averted. The incident illustrates why our cases recognize the need for specific objection so that trial errors will not occur by inadvertence. The case of Moore v. State, 304 Ark. 257, 801 S.W.2d 638 (1990), is instructive. The court had granted a motion to suppress the statement of a co-defendant implicating the appellant in various crimes, and appellant argued on appeal that the trial court erred in then admitting the statement. We said that there was no showing that appellant had requested that specific or implied references to her be expunged before introduction of the statement. \u201cIt cannot be said the entire statement [of the co-defendant] was inadmissible; therefore, the appellant had the burden of pointing out any alleged inadmissible portions at or prior to the admission of the statement.\u201d\nAs to the robbery, there is an additional reason why no error occurred. There was evidence of robbery properly before the jury from sources independent of Exhibit 18. Officer DiPaolo testified that Ms. Needham\u2019s purse was opened and its contents were scattered near her body. Other contents, including the appellant\u2019s photograph, had been thrown down a window well near where the body was discovered. State\u2019s Exhibit 16 depicts a scene consistent with that testimony. That evidence would, I suggest, support a conviction of robbery, it will certainly support the lesser standard of evidence applicable to the penalty phase.\nThe state is not required to prove the appellant was convicted of robbery in order to submit the aggravating circumstance to the jury \u2014 only that he committed the felony. Arkansas Code Ann. \u00a7 5-4-604 (Supp. 1990). Moreover, we have held that any evidence, even slight, of an aggravating circumstance justified submitting that issue to the jury. Wainwright v. State, 302 Ark. 371, 790 S.W.2d 420 (1990); Miller v. State, 269 Ark. 341, 605 S.W.2d 430 (1980). The state was entitled to prove the circumstances of the previous crime relevant to the issue of violence for such probative force as the jury might have given it. The crime of rape, having no evidentiary support, was admittedly not germane, but it\u2019s miniscule role in this trial could have been avoided by a proper objection and as it was neither argued nor even mentioned to the jury any error can be treated as harmless. Ford v. State, 276 Ark. 98, 633 S.W.2d 3 (1982). We have often said the law cannot guarantee a perfect trial, only a fair one.", "type": "concurring-in-part-and-dissenting-in-part", "author": "Steele Hays, Justice," } ], "attorneys": [ "William R. Simpson, Jr., Public Defender, by: Didi Sailings, Asst. Public Defender, for appellant.", "Winston Bryant, Att\u2019y Gen., by: Kent G. Holt, Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Bruce Earl WARD v. STATE of Arkansas\nCR 91-36\n827 S.W.2d 110\nSupreme Court of Arkansas\nOpinion delivered February 24, 1992\nWilliam R. Simpson, Jr., Public Defender, by: Didi Sailings, Asst. Public Defender, for appellant.\nWinston Bryant, Att\u2019y Gen., by: Kent G. Holt, Asst. Att\u2019y Gen., for appellee." }, "file_name": "0415-01", "first_page_order": 443, "last_page_order": 466 }