{ "id": 1910533, "name": "Bennie CLEVELAND v. STATE of Arkansas", "name_abbreviation": "Cleveland v. State", "decision_date": "1993-11-15", "docket_number": "CR 93-188", "first_page": "91", "last_page": "107", "citations": [ { "type": "official", "cite": "315 Ark. 91" }, { "type": "parallel", "cite": "865 S.W.2d 285" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "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": "290 Ark. 503", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1873775 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ark/290/0503-01" ] }, { "cite": "284 Ark. 533", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1878571 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/ark/284/0533-01" ] }, { "cite": "292 Ark. 188", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1871406 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark/292/0188-01" ] }, { "cite": "287 Ark. 271", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1876561 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/ark/287/0271-01" ] }, { "cite": "476 U.S. 79", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12787 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/us/476/0079-01" ] }, { "cite": "289 Ark. 72", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1875315 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ark/289/0072-01" ] }, { "cite": "314 Ark. 628", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1912733 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/314/0628-01" ] }, { "cite": "271 Ark. 33", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1756071 ], "weight": 3, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/271/0033-01" ] }, { "cite": "300 Ark. 25", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1886843 ], "weight": 3, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/300/0025-01" ] }, { "cite": "312 Ark. 89", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1935007 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "93" }, { "page": "40" } ], "opinion_index": 0, "case_paths": [ "/ark/312/0089-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-32-106", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1993, "pin_cites": [ { "page": "(b)(2)" } ], "opinion_index": 0 }, { "cite": "264 Ark. 579", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1668723 ], "weight": 4, "year": 1978, "pin_cites": [ { "page": "581" }, { "page": "841" } ], "opinion_index": 0, "case_paths": [ "/ark/264/0579-01" ] }, { "cite": "262 Ark. 413", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1675820 ], "weight": 5, "year": 1977, "pin_cites": [ { "page": "416" }, { "page": "877" } ], "opinion_index": 0, "case_paths": [ "/ark/262/0413-01" ] }, { "cite": "306 Ark. 385", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1900974 ], "weight": 4, "year": 1991, "pin_cites": [ { "page": "389-90" }, { "page": "380" } ], "opinion_index": 0, "case_paths": [ "/ark/306/0385-01" ] }, { "cite": "310 Ark. 510", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1898941 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/310/0510-01" ] }, { "cite": "313 Ark. 520", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1914606 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/313/0520-01" ] }, { "cite": "260 Ark. 499", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1616777 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "508-09" }, { "page": "280-81" } ], "opinion_index": 0, "case_paths": [ "/ark/260/0499-01" ] }, { "cite": "313 Ark. 478", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1914580 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/313/0478-01" ] }, { "cite": "313 Ark. 253", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1914647 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/313/0253-01" ] }, { "cite": "313 Ark. 504", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1914628 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/313/0504-01" ] }, { "cite": "830 P.2d 357", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1992, "opinion_index": 1 }, { "cite": "501 N.W.2d 739", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10628625 ], "year": 1993, "opinion_index": 1, "case_paths": [ "/nw2d/501/0739-01" ] }, { "cite": "560 N.Y.S. 279", "category": "reporters:state", "reporter": "N.Y.S.", "year": 1990, "opinion_index": 1 }, { "cite": "808 P.2d 40", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 715048 ], "year": 1991, "opinion_index": 1, "case_paths": [ "/nm/111/0590-01" ] }, { "cite": "623 A.2d 648", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 2017541 ], "year": 1993, "opinion_index": 1, "case_paths": [ "/md/330/0261-01" ] }, { "cite": "534 A.2d 867", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 7881896 ], "year": 1987, "opinion_index": 1, "case_paths": [ "/a2d/534/0867-01" ] }, { "cite": "444 N.W.2d 662", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 2855895 ], "year": 1989, "opinion_index": 1, "case_paths": [ "/neb/233/0228-01" ] }, { "cite": "533 So.2d 1060", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7572626 ], "year": 1988, "opinion_index": 1, "case_paths": [ "/so2d/533/1060-01" ] }, { "cite": "774 S.W.2d 462", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9999931 ], "year": 1989, "opinion_index": 1, "case_paths": [ "/sw2d/774/0462-01" ] }, { "cite": "515 N.E.2d 783", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 1 }, { "cite": "376 S.E.2d 851", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 1221544 ], "year": 1989, "opinion_index": 1, "case_paths": [ "/ga/259/0096-01" ] }, { "cite": "596 So.2d 42", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7478740 ], "year": 1991, "opinion_index": 1, "case_paths": [ "/so2d/596/0042-01" ] }, { "cite": "960 F.2d 1433", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10525809 ], "year": 1992, "opinion_index": 1, "case_paths": [ "/f2d/960/1433-01" ] }, { "cite": "913 F.2d 1417", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10539986 ], "year": 1990, "opinion_index": 1, "case_paths": [ "/f2d/913/1417-01" ] }, { "cite": "850 F.2d 1038", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1792569 ], "year": 1988, "opinion_index": 1, "case_paths": [ "/f2d/850/1038-01" ] }, { "cite": "937 F.2d 1257", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10530335 ], "year": 1991, "opinion_index": 1, "case_paths": [ "/f2d/937/1257-01" ] }, { "cite": "987 P.2d 215", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1993, "opinion_index": 1 }, { "cite": "779 S.W.2d 673", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 11361311 ], "weight": 2, "year": 1989, "opinion_index": 1, "case_paths": [ "/sw2d/779/0673-01" ] }, { "cite": "788 S.W.2d 658", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10005288 ], "year": 1990, "opinion_index": 1, "case_paths": [ "/sw2d/788/0658-01" ] }, { "cite": "805 P.2d 769", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10380323 ], "year": 1991, "opinion_index": 1, "case_paths": [ "/p2d/805/0769-01" ] }, { "cite": "313 Ark. 624", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1914681 ], "weight": 2, "year": 1993, "opinion_index": 1, "case_paths": [ "/ark/313/0624-01" ] }, { "cite": "124 L.Ed.2d 242", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1993, "opinion_index": 1 }, { "cite": "113 S.Ct. 2330", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1993, "opinion_index": 1 }, { "cite": "606 So.2d 156", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7476545 ], "year": 1992, "opinion_index": 1, "case_paths": [ "/so2d/606/0156-01" ] }, { "cite": "499 U.S. 400", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11319062 ], "year": 1991, "opinion_index": 1, "case_paths": [ "/us/499/0400-01" ] }, { "cite": "476 U.S. 79", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12787 ], "year": 1986, "opinion_index": 1, "case_paths": [ "/us/476/0079-01" ] } ], "analysis": { "cardinality": 1475, "char_count": 32825, "ocr_confidence": 0.87, "pagerank": { "raw": 1.98428825037532e-07, "percentile": 0.7409733154326757 }, "sha256": "1d6ee84977bf6eb3e3bd46a0455bf214a5b5994bd20e0e56a3a22ec42f100177", "simhash": "1:c9fe816635a5d39b", "word_count": 5459 }, "last_updated": "2023-07-14T19:39:34.144281+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Bennie CLEVELAND v. STATE of Arkansas" ], "opinions": [ { "text": "Jack Holt, Jr., Chief Justice.\nIn this case, the appellant, Bennie Lamar Cleveland, seeks to overturn his conviction on charges of capital murder, attempted capital murder, kidnapping, aggravated robbery, and theft of property. He raises five points on appeal, but none of his arguments merit reversal.\nThe record reveals that Cleveland had been involved in a turbulent relationship with Paula Easter of McGehee, Arkansas, for about two years when it ended in December 1991. At the time, Ms. Easter was employed as a cook by Cash\u2019s Quik Check, a convenience store in McGehee. The appellant persisted in attempting to contact Ms. Easter, phoning her and her aunt repeatedly and going once to her workplace, in violation of orders from his parole officer, Danny Calvert.\nSubsequently, on the evening of December 29, 1991, Cleveland and a companion, Wendell Moton, drove to Cash\u2019s Quik Check. The appellant was armed with a .22-caliber pistol, and Moton carried a shotgun. Moton went inside, purchased some ice cream, and returned to the car to report that Ms. Easter was at work. Then Cleveland and Moton together entered the store with their weapons.\nMs. Easter and a co-worker, Michelle Nagel, were seated in a booth with a customer, Willard Blackmon. The appellant approached the table and fired at Ms. Nagel, killing her where she sat. Mr. Blackmon tried to escape, but Cleveland shot and wounded him. Next, he chased Ms. Easter through the building and ordered her to come out of a cooler where she had attempted to hide. She told Cleveland, in response to his question, that she did not know how to open the cash register.\nThe appellant took Ms. Easter outside and ordered her to get in the car. He then returned to the store, where he was observed by the wounded Mr. Blackmon, and emerged shortly afterward, carrying a handgun and a box containing cash. Cleveland then drove to Little Rock, where he left Moton, and began an odyssey that would eventually take him and Ms. Easter to New Jersey, where they were arrested by a state trooper on January 4, 1992.\nA jury trial was held before the Desha County Circuit Court in July 1992. Cleveland was convicted on all charges. The kidnapping and aggravated robbery charges were merged in the capital murder conviction, and the appellant was sentenced consecutively, under an amended judgment, to life without parole for the capital murder of Michelle Nagel, thirty years for the attempted capital murder of Willard Blackmon, and ten years for the theft of property.\nI. Motion for directed verdict on aggravated robbery\nAt the conclusion of the State\u2019s case, the appellant moved for a directed verdict on the issues of aggravated robbery and- kidnapping \u201cas a portion of\u2019 the first and second counts of the amended information, which covered, respectively, the capital murder and attempted capital murder charges. On appeal, Cleveland actually argues only with respect to the underlying aggravated robbery charge.\nOn appeal, before considering other assignments of error, this court determines the sufficiency of the evidence. Gunter v. State, 313 Ark. 504, 857 S.W.2d 156 (1993). An appeal from the denial of a motion for a directed verdict is a challenge to the sufficiency of the evidence, and the test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. Friar v. State, 313 Ark. 253, 854 S.W.2d 318 (1993).\nSubstantial evidence is that evidence which is forceful enough to compel a conclusion, one way or the other, beyond suspicion or conjecture. Gunter v. State, supra. We view the evidence in the light most favorable to the State. Walker v. State, 313 Ark. 478, 855 S.W.2d 932 (1993).\nCleveland contends that there was simply no proof of any prior intent on his part to commit a robbery at Cash\u2019s Quik Check. Instead, he argues, the evidence shows that the murder of Michelle Nagel and the shooting of Willard Blackmon occurred before the act of robbery. The appellant asserts that the proof indicates that he re-entered the convenience store after the shootings and after Ms. Easter had been placed in the automobile. The entire sequence of events, he claims (citing the testimony of his co-defendant, Wendell Moton), revolved around his relationship with Ms. Easter.\nOther testimony, however, suggests a closer relationship between the shootings and the robbery. Jo Ann Owens, the store manager, stated that she was called to the business at about 10:00 p.m., shortly after the crimes were reported, and that she discovered that a pistol and a money box were missing. She also found that the cash register contained no large-denomination bills. Ms. Owens determined that approximately $400 in cash had been taken.\nMs. Easter testified that, after placing her in the car, Cleveland went back inside the store and returned with her purse and the money box which was ordinarily kept under the counter beneath the cash register. Moton corroborated this testimony, adding the detail that the money box was \u201cbeige\u201d in color.\nThe most compelling evidence came from Mr. Blackmon, who had been shot in the back and arm. As he lay upon the floor, pretending to be dead, he heard one of the co-defendants say, \u201cYou got the money sack. Let\u2019s go. Let\u2019s go.\u201d Presently, he saw Cleveland come back inside. \u201cHe had a key' in his hand,\u201d Mr. Blackmon testified, \u201cand put it in the cash register and tried to open it. . . . Then when he couldn\u2019t get it, he went on back out the door.\u201d\nIt appears that Cleveland, on appeal, is urging that the sequence of events is dispositive of the question of his \u201cintent to rob\u201d \u2014 i.e., he suggests that the robbery was an afterthought because it occurred after the murder had been committed. Yet, as this court declared in Grigsby v. State, 260 Ark. 499, 508-09, 542 S.W.2d 275, 280-81 (1976):\nWhere the robbery and the killing are so closely connected in point of time, place and continuity of action as to constitute one continuous transaction it is proper to consider both as a single transaction and the homicide as a part of the res gestae of the robbery. [Citations omitted.] The sequence of events is unimportant and the killing may precede, coincide with or follow the robbery and still be committed in its perpetration. [Citations omitted.]\n. . . Where the circumstances permit an inference that the killing and the robbery were all part of one transaction, the state is not required to prove intent to commit the felony by direct evidence. [Citations omitted.] . . .\n(Emphasis added.) It is the close proximity of events, rather than their particular order, that makes possible an inference of a single continuous transaction.\nThese principles have recently been reaffirmed in Owens v. State, 313 Ark. 520, 856 S.W.2d 288 (1993), where we held, quoting Grigsby, that when the defendant had been placed at the scene of the crime approximately one hour before the body of a murder victim was discovered and when money previously in the vietim\u2019s possession was missing, the jury was justified in deciding that the robbery and murder were one continuous transaction.\nSo, too, in Sanders v. State, 310 Ark. 510, 838 S.W.2d 359 (1992), we found sufficient circumstantial corroborating evidence to establish robbery as the underlying felony in a capital felony murder case. There, the owner of a'building in which the victim engaged in a bootlegging enterprise testified that he had visited the victim on the night of the murder and that he found him alone, in good health, and well-provisioned with beer and whiskey. On his return the next morning, however, he discovered the victim lying in a pool of blood and about six cases of beer and twenty half-pints of vodka and whiskey missing, along with some money he had given the victim the night before.\nIn Patterson v. State, 306 Ark. 385, 815 S.W.2d 377 (1991), there was no direct evidence of the defendant\u2019s intent to rob his victim before murdering him, though there had been testimony presented regarding the defendant\u2019s financial situation and his belief that the victim made a lot of money. We shifted the focus, however, to the actual criminal episode: \u201cThe circumstantial evidence consisting of the close proximity of time and place of the killing and the taking of the decedent\u2019s property so as to make it all one transaction is sufficient to allow the jury to conclude the killing occurred in the course of a robbery.\u201d 306 Ark. at 389-90, 815 S.W.2d at 380.\nHere, as in the cited cases, the robbery and the murder occurred in close proximity to each other. A victim-witness stated that one of the co-defendants mentioned a money bag before leaving the store. Two other witnesses agreed that, after shooting two people and forcing a third to accompany him, Cleveland went back to the store and returned to the car with a money box. The store manager testified that a pistol, a money box, and $400 in cash were missing when she was called to the scene at about 10:00 p.m. The jury had before it enough evidence to indicate that the robbery and the murder formed a single continuous transaction. The trial court did not err in refusing to grant Cleveland\u2019s motion for a directed verdict.\nII. Supplemental jury panel\nBy the third day of jury selection, the regular panels of both divisions of the circuit court were exhausted. The trial judge directed the circuit clerk to draw a supplemental panel, using variants of two random numbers \u2014 17 and 82 \u2014 selected by the court for pulling the district-wide master jury list. The circuit clerk, in turn, gave the numbers to an employee, who ran them through a computer and generated one hundred fifty-five names. The trial judge then personally instructed the clerk to attempt to find telephone numbers for those listed and ordered him, in the judge\u2019s words, to \u201cstart from the top of the list and work down\u201d in order to avoid a \u201ccourthouse panel\u201d consisting of friends and acquaintances of courthouse personnel.\nBecause voir dire was underway, there was no time to employ the usual method of notification by letter. Forty-one supplemental panel members received telephone notice and reported for duty the next morning. Of the twelve jurors who were finally seated, five were drawn from the supplemental panel.\nCleveland maintains that the trial court erred in denying his motion to quash the supplemental panel. The appellant, who is black, argues that the telephone summons of supplemental panel members resulted in the unlawful exclusion of black prospective jurors. Out of the forty-one additional venirepersons who reported to the circuit court, only three were black. According to the 1990 census, 42.5 percent of Desha County residents are black.\nIn Huckaby v. State, 262 Ark. 413, 557 S.W.2d 875 (1977), this court specifically approved the practice of reaching prospective jurors by telephone, despite the appellant\u2019s contention in that case that the method amounted to a systematic exclusion of the large class of eligible jurors without telephones. The trial judge, in overruling the motion to quash the panel, explained that \u201cWe were in the process of selecting a jury in this case. We ran out. We had to take the most expedient method. One juror is as good as another.\u201d 262 Ark. at 416, 557 S.W.2d at 877. This court upheld the ruling.\nThe scenario in the present case is similar \u2014 the examination of venirepersons was underway, and completion of that phase of the proceedings had become a matter of some urgency. It cannot be overemphasized that the critical factor in Huckaby was the fact that voir dire was in progress at the time the telephone summons was authorized. We noted that \u201cWhatever might have been the proper procedure before the trial, it was certainly within the trial court\u2019s discretion to approve the most expeditious method of bringing in more jurors after the trial was already in progress.\u201d Id. The same rationale applies here.\nIn another case, Kitchen v. State, 264 Ark. 579, 572 S.W.2d 839 (1978), we reversed a conviction where, on the morning of the day that trial was scheduled to begin, it was discovered that the prospective jurors had not been notified to appear, and the circuit judge instructed the sheriff to summon a portion of the panel by phone. We contrasted those circumstances with the situation in Huckaby v. State:\nThere we held that it was permissible to summon additional jurors, during a recess, by telephone since it was within the trial court\u2019s \u201cdiscretion to approve the most expeditious method of bringing in more jurors after the trial was already in progress.\u201d Here the initial summoning of prospective jurors for the trial of this case was solely by telephone upon four hours\u2019 notice. We are of the view that our holding in Huckaby should not be extended to approve this procedure.\n264 Ark. at 581, 572 S.W.2d at 841. In the present case, as in Huckaby and unlike Kitchen, additional venirepersons, not the initial panel members, were summoned by telephone.\nPersonal notice by telephone is a statutorily sanctioned means by which prospective jurors may be summoned. Ark. Code Ann. \u00a7 16-32-106(b)(2) (Supp. 1993). See King v. State, 312 Ark. 89, 93, 847 S.W.2d 37, 40 (1993), where this court approved the telephone summons of additional jurors, holding that \u201cThere was no breach of statutory procedure under these circumstances.\u201d\nThe selection of a petit jury from a representative cross-section of the community is an essential component of the Sixth Amendment right to trial by jury. Sanders v. State, 300 Ark. 25, 776 S.W.2d 334 (1989). There is, however, no requirement that the petit jury actually chosen must mirror the community and reflect the various distinctive groups in the population. Id. A defendant in a criminal trial is entitled to require that the state not deliberately or systematically deny to members of his race the right to participate, as jurors, in the administration of justice. Waters v. State, 271 Ark. 33, 607 S.W.2d 336 (1980). It is the state\u2019s purposeful or deliberate denial to blacks, on account of race, of participation in the administration of justice by selection for jury service that violates the equal protection clause. Id.\nAs we pointed out recently in Walker v. State, 314 Ark. 628, 864 S.W.2d 230 (1993), the appellant bears the burden of proving the systematic exclusion of members of his racial group from the venire. In order to establish a prima facie violation of the fair-cross-section requirement, the appellant must show that (1) the group alleged to be excluded is a distinctive group in the community; (2) the representation of this group in venires from which the juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) this underrepresentation is due to systematic exclusion of the group in the jury selection process. Walker v. State, supra; Sanders v. State, supra.\nCleveland attempts to characterize the selection process in the present case as discretionary and thus discriminatory. Yet the numerical method utilized in drawing the supplemental panel was strictly random in operation. A showing that a particular jury panel is not representative of the racial composition of the population will not support a motion to quash the panel, for when the panel is drawn by chance, such a showing does not in itself make a prima facie case of racial discrimination. Thomas v. State, 289 Ark. 72, 709 S.W.2d 83 (1986).\nIt must be emphasized that it is not enough simply to cite statistics \u2014 a policy or procedure entailing the systematic exclusion of a particular group must be shown in order to cross the threshold and shift the burden of proof to the State. Here, Cleveland failed to make a prima facie showing of racial discrimination in the jury selection process. Like the appellant in Walker v. State, supra, he was unable to offer any evidence of systematic exclusion.\nIn the present case, the circuit court was dealing with an emergency situation in which voir dire was underway and seven jurors had been seated. It is clear from a reading of the transcript that the trial judge took pains to ensure fairness by giving specific instructions' to the circuit clerk, who, in turn, passed the court\u2019s directions along to his staff.\nThe circuit judge stated for the record that, when it became necessary to create a fresh pool of prospective jurors, he picked two random numbers between one and one hundred from a list he has used for the purpose during the past several years. He gave those numbers to the circuit clerk, Skippy Leek; and outlined the procedure to be followed:\nThese two numbers were given to Mr. Leek, whom I understand gave them to Jerri Cingolani downstairs, who ran them through the computer, and it generated a hundred and fifty-five names on a list. . . .\nMy instructions, after consulting with Mr. Leek and seeing what resources we had available, were for him to get as wide a distribution within the courthouse as he could of that list so as many people from the various communities and areas of the counties could have a chance to look at it and make notes and respond for people that they knew, because we have no telephone numbers. It is my understanding they took the telephone books from the county, Dumas, McGehee, and I guess the Arkansas City and whatever outlying areas, and they attempted to get phone numbers for as many of these people as they could in addition to identifying them from anyone in the courthouse who might know them.\nNow, I indicated my concern that they start at the top of the list and work down, that it was not a matter of picking out who you know or picking out your friends, that I did not want a, quote, courthouse panel coming in here, not in a derogatory sense ... but not just acquaintances and friends of employees and officials of the courthouse.\nThe trial court thus emphasized the importance of proceeding in alphabetical order rather than singling out persons known to the clerk\u2019s staff.\nCalled as a witness by the appellant, the circuit clerk, Skippy Leek, testified that registered voters in the judicial district are listed alphabetically in the courthouse computer. The computer selected persons whose order on the alphabetical listing ended in the pair of double-digits randomly picked by the judge \u2014e.g., 17, 82, 117, 182 \u2014 and produced a list containing one hundred fifty-five names.\nMr. Leek stated that, following the directions of the trial court, he instructed courthouse personnel to proceed with the list alphabetically. Deputy Sheriff Roy Fryar, who assisted in telephoning potential jurors, testified that the calls were made in alphabetical order.\nPersonal acquaintance played a limited but expedient part in the clerk\u2019s instructions to his deputies. Ms. Irvin and June Robnolt, another deputy clerk who made telephone calls, were told to come up with numbers for as many people on the list as practicable. If, for instance, they knew an individual, they were to attempt to locate that person at work; if they knew a woman whose married name might be different than that shown on the list, they were to locate her by using her married name.\nOne person listed, Warren Radar of Arkansas City, had no telephone but was known to staff members and personally contacted by a law enforcement officer. (The record does not indicate Mr. Radar\u2019s race.) Another person listed, Rose Daniels, a black woman who was eventually seated as a juror, was reached by telephone after a friend of hers, who happened to be in the circuit clerk\u2019s office on other business, supplied her number.\nThe randomly derived supplemental list did not identify prospective jurors by race; that list, of course, was based on voter registration lists, which do not reveal the voters\u2019 race. See Thomas v. State, supra. Consequently, the trial court had no evidence before it regarding how many blacks may have been listed among the one hundred fifty-five \u00e1dditional names or how many may actually have been contacted. According to deputy clerk Sandra Irvin, \u201cWe tried to contact every name that was on the supplemental list. I don\u2019t know how many names are on that list.. . . When we got through, I did not count. I do not know how many were contacted or how many showed up.\u201d\nThe record merely reflects that three black venirepersons reported to duty after having been notified by telephone, two of whom were impaneled for trial. However, nothing in the evidence presented by the appellant suggests that these figures resulted from the systematic exclusion of blacks from the jury selection process, which was random, not selective, in its inception and execution.\nIn short, the appellant has failed to establish a prima facie case of racial discrimination. Hence, the trial court did not err in refusing to quash the supplemental panel.\nIII. Batson and gender\nCleveland made an objection, based on the principle set forth in Batson v. Kentucky, 476 U.S. 79 (1986), forbidding the state\u2019s exercise of race-based peremptory challenges, to the alleged gender-biased nature of the prosecution\u2019s strikes in the present case. Nine of the State\u2019s ten peremptory challenges were used to remove women from the jury pool.\nOf particular significance in the present case is the appellant\u2019s own gender. That inescapable fact affords him no standing to assert a claim that he suffered prejudice as a result of the State\u2019s peremptory challenges. Moreover, the jury that was ultimately impaneled consisted of five females and seven males.\nIV. Venireperson\u2019s remark\nDuring the general voir dire, a prospective juror, Pam Ferguson, responding to a question addressed to the group concerning contact with trial participants, said, \u201cWell, my husband, Ronnie Ferguson, works for the Dumas Police Department. He has arrested Bennie several times.\u201d The trial court initially granted Cleveland\u2019s motion for a mistrial based on the remark but subsequently withdrew the ruling, pending the completion of individual voir dire and an assessment of the potential tainting of the panel. Following the conclusion of individual voir dire, the trial court denied the defense motion.\nThe case law in this area speaks clearly. In Novak v. State, 287 Ark. 271, 698 S.W.2d 499 (1985), this court upheld a trial court\u2019s refusal to declare a mistrial when a police officer on the jury panel, in response to the court\u2019s general query as to acquaintance with the defendant, volunteered, \u201cI have arrested him several times in the past.\u201d We found no abuse of the trial court\u2019s discretion in denying a mistrial, observing that the chance remark was inadvertent and the arrests were not specified. See also Cobbs v. State, 292 Ark. 188, 728 S.W.2d 957 (1987); McFarland v. State, 284 Ark. 533, 684 S.W.2d 233 (1985).\nA mistrial should be avoided except where the fundamental fairness of the trial itself is at stake. Snell v. State, 290 Ark. 503, 721 S.W.2d 628 (1986). Here, as in Novak, the remark was inadvertent, and the number of arrests and the reasons for arresting the appellant remained indefinite. Within the context of an entire week of voir dire, Ms. Ferguson\u2019s chance remark, which was made on the first day of the jury selection process, cannot be said to have tainted the jury panel. The trial court did not err in refusing to order a mistrial.\nV. Parole officer\u2019s testimony\nAt the time Cleveland committed the offenses for which he was convicted in the present case, he was a parolee under the supervision of parole officer Danny Calvert. In the weeks prior to December 29, 1991, two of the victims, Michelle Nagel and Paula Easter, and several of Ms. Easter\u2019s relatives notified Mr. Calvert about the appellant\u2019s efforts to contact Ms. Easter. Mr. Calvert then ordered Cleveland to stop phoning or otherwise attempting to reach Ms. Easter. The appellant, as events proved, failed to heed Mr. Calvert\u2019s admonition.\nBy a motion in limine, Cleveland endeavored to prevent Mr. Calvert from testifying, asserting that the prejudice resulting from the revelation that the appellant was on parole at the time the crimes were committed would outweigh the probative value of the testimony. The State contended that Calvert\u2019s testimony was necessary to support the testimony of Ms. Easter and her relatives regarding the nature of the relationship between Ms. Easter and Cleveland and to counter a statement that the appellant had made following his arrest that he and Ms. Easter had together planned the robbery of the convenience store.\nThe trial judge denied the motion in limine, declaring that Mr. Calvert was an \u201coccurrence witness\u201d who would offer substantive testimony. He ordered the prohibition of references to Cleveland\u2019s prior convictions or incarcerations by other witnesses and pointed out that it was the appellant who had put the allegation of Ms. Easter\u2019s participation in the crimes in issue. Further, he stated that he would caution the jury to give no consideration to Mr. Calvert\u2019s status as Cleveland\u2019s parole officer. The judge then specifically found that the probative value of Mr. Calvert\u2019s testimony, when coupled with the admonition, would outweigh any prejudicial effect.\nBefore Mr. Calvert was brought to the witness stand, the State had called Ms. Easter\u2019s aunt, Hattie Mae Brown, who described the numerous telephone calls she had received from the appellant and stated that, on December 20, 1991, she \u201cwent to his [Cleveland\u2019s] parole man,\u201d whom she identified by name as Danny Calvert. The appellant offered no objection to this reference to the identity and status of Mr. Calvert.\nAfter Mr. Calvert took the stand and testified that he was Cleveland\u2019s parole officer, the trial court admonished the jury \u201cnot to infer or speculate or to consider anything else that may have to do or you think may have to do with his position.\u201d At the conclusion of the parole officer\u2019s testimony, Cleveland moved for a mistrial, contending that Mr. Calvert\u2019s testimony served merely to divulge the appellant\u2019s criminal past.\nOn the stand, Mr. Calvert made no reference to the appellant\u2019s previous convictions. Although some of his testimony duplicated that of Ms. Brown and other family members, he made substantive additions, as the appellant concedes, with reference to his warnings to Cleveland about trying to contact Ms. Easter and Cleveland\u2019s stated confusion about his relationship with Ms. Easter. The mere fact that some of the evidence offered by Mr. Calvert was cumulative is not a basis for holding that its admission, otherwise proper, constitutes an abuse of the trial court\u2019s discretion. Harris v. State, 295 Ark. 456, 748 S.W.2d 666 (1988). Such a consideration does not warrant invocation of the drastic remedy of mistrial. See King v. State, supra.\nVI. Rule 4-3(h) review\nBecause the appellant was sentenced to life imprisonment without parole, the record in this case has been examined in compliance with Rule 4-3(h), formerly Rule 11(f), of the Rules of the Supreme Court. Although the appellant failed to abstract all adverse rulings as required by our rule, the State has appropriately cured this deficiency in its supplemental abstract. We have determined that there were no rulings adverse to the appellant that constituted prejudicial error.\nAffirmed.\nThomas D. Deen, for appellant.\nWinston Bryant, Att\u2019y Gen., by: Brad Newman, Asst. Att\u2019y Gen., for appellee.", "type": "majority", "author": "Jack Holt, Jr., Chief Justice." }, { "text": "SUPPLEMENTAL OPINION ON DENIAL OF REHEARING DECEMBER 13, 1993\nPetition for Rehearing denied.\nJack Holt, Jr., Chief Justice.\nIn his petition for rehearing, Bennie Cleveland challenges this court\u2019s holding in Cleveland v. State, 315 Ark. 91, 865 S.W.2d 285 (1993), on the issues of the supplemental jury panel, the application of the Batson principle to gender, and the sufficiency of the abstract. We deny the petition but address the Batson-gender question in order to correct our original opinion.\nAddressing Cleveland\u2019s third point for reversal, we gave unduly short shrift to his argument that the principle set forth in Batson v. Kentucky, 476 U.S. 79 (1986), forbidding the state\u2019s exercise of race-based peremptory challenges, should be extended to embrace his claim that the prosecution\u2019s strikes exhibited gender bias. Of the State\u2019s ten peremptory challenges, nine were used to remove women from the jury pool. The jury\u2019s final composition numbered seven males and five females.\nIn our opinion, we stated that Cleveland, as a male, lacked standing to assert a Batson-gender argument. In doing so, we failed to acknowledge the appellant\u2019s citation of Powers v. Ohio, 499 U.S. 400 (1991), in which the United States Supreme Court held that, under the equal protection clause, a white male defendant in a criminal proceeding had standing to object to the State of Ohio\u2019s use of peremptory challenges to remove seven black venirepersons from the jury. Notwithstanding the erroneous statement in our opinion, we conclude that a rehearing is not required because the trial court did not err in refusing to extend the Bat-son doctrine to encompass gender.\nA division of authority exists at both the federal and state levels concerning the appropriateness of advancing the Batson standard within the realm of gender. As the State has pointed out, the majority of courts that have ruled on the question have declined to do so. Three of the four federal circuits that have considered the matter have held that Batson should not be expanded so far. Eight of the thirteen state courts that have dealt with the issue have also rejected arguments that Batson should apply to sex as well as race.\nThe United States Supreme Court will have the opportunity to resolve the question during the present term when it entertains the case of J.E.B. v. Alabama, 92-1239. See J.E.B. v. T.B., 606 So.2d 156 (Ala. Civ. App. 1992), cert. granted, _U.S._, 113 S.Ct. 2330, 124 L.Ed.2d 242 (1993). In Tucker v. State, 313 Ark. 624, 855 S.W.2d 948 (1993), we declined the opportunity to extend Batson to \u201cgender challenges within a racially cognizable group\u201d on the basis that \u201cno reason or authority\u201d had been provided to support the innovation. 313 Ark. at 630, 855 S.W.2d at 951. With regard to Cleveland\u2019s argument, we believe that the weight of reason and authority rests with the State\u2019s position.\nOf particular significance in the present case is the fact that the gender composition of the jury that was ultimately impaneled here was five females and seven males. Other jurisdictions that have treated the gender issue under similar circumstances offer instructive guidance. In State v. Harrison, 805 P.2d 769 (Utah App. 1991), the appellate court found it unnecessary even to reach the Batson-gender question because the presence of five women on the jury demonstrated that the use of strikes to keep additional women from being seated was not obvious error. The same approach prevailed in Mowbray v. State, 788 S.W.2d 658 (Tex. App. 1990), where eight of twelve seated jurors were women. In State v. Clay, 779 S.W.2d 673 (Mo. App. 1989), the appellate court, in rebuffing the Batson-gender argument, noted that five women served on the jury that convicted the appellant. The parallels that may be drawn with the present situation are obvious.\nAt this point in the development of the Batson doctrine, we consider it unsound to extend the principle to peremptory challenges based on gender, and we so hold.\nThe petition for rehearing is denied.\nSee United States v. Broussard, 987 P.2d 215 (5th Cir. 1993); United States v. Nichols, 937 F.2d 1257 (7th Cir. 1991); United States v. Hamilton, 850 F.2d 1038 (4th Cir. 1988). Only the Ninth Circuit has held that Batson should be extended to gender-based strikes. See United States v. DeGross, 913 F.2d 1417 (9th Cir. 1990), aff\u2019d en banc, 960 F.2d 1433 (9th Cir. 1992).\nSee Murphy v. State, 596 So.2d 42 (Ala. Cr. App. 1991); Potts v. State, 376 S.E.2d 851 (Ga. 1989); People v. Crowder, 515 N.E.2d 783 (Ill. App. 1987); Hannan v. Commonwealth, 774 S.W.2d 462 (Ky. App. 1989); State v. Adams, 533 So.2d 1060 (La. App. 1988); State v. Clay, 779 S.W.2d 673 (Mo. App. 1989); State v. Culver, 444 N.W.2d 662 (Neb. 1989); State v. Oliviera, 534 A.2d 867 (R.I. 1987). Batson has been extended to encompass gender in Tyler v. State, 623 A.2d 648 (Md. 1993); State v. Gonzales, 808 P.2d 40 (1991); People v. Irizarry, 560 N.Y.S. 279 (A.D. 1 Dept. 1990); City of Mandan v. Fern, 501 N.W.2d 739 (N.D. 1993); State v. Burch, 830 P.2d 357 (Wash. App. 1992). The decisions in Tyler and Gonzales were based, respectively, on the Maryland and New Mexico state constitutions.", "type": "rehearing", "author": "Jack Holt, Jr., Chief Justice." } ], "attorneys": [ "Thomas D. Deen, for appellant.", "Winston Bryant, Att\u2019y Gen., by: Brad Newman, Asst. Att\u2019y Gen., for appellee.", "Thomas D. Deen, for appellant.", "Winston Bryant, Att\u2019y Gen., by: Brad Newman, Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Bennie CLEVELAND v. STATE of Arkansas\nCR 93-188\n865 S.W.2d 285\nSupreme Court of Arkansas\nOpinion delivered November 15, 1993\n[Supplemental Opinion on Denial of Rehearing December 13, 1993]\nThomas D. Deen, for appellant.\nWinston Bryant, Att\u2019y Gen., by: Brad Newman, Asst. Att\u2019y Gen., for appellee." }, "file_name": "0091-01", "first_page_order": 117, "last_page_order": 135 }