{ "id": 9159645, "name": "Albert BELL v. STATE of Arkansas", "name_abbreviation": "Bell v. State", "decision_date": "1996-04-29", "docket_number": "CR 95-417", "first_page": "258", "last_page": "266", "citations": [ { "type": "official", "cite": "324 Ark. 258" }, { "type": "parallel", "cite": "920 S.W.2d 821" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "289 Ark. 91", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1875433 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ark/289/0091-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-91-113", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "323 Ark. 116", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1445718 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/323/0116-01" ] }, { "cite": "320 Ark. 528", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1451132 ], "weight": 5, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/320/0528-01" ] }, { "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": "300 Ark. 174", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1886800 ], "weight": 4, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/300/0174-01" ] }, { "cite": "296 Ark. 41", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1892765 ], "weight": 6, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/296/0041-01" ] }, { "cite": "271 Ark. 568", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1756222 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/271/0568-01" ] }, { "cite": "309 Ark. 166", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1906008 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/309/0166-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-89-107", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "year": 1987, "pin_cites": [ { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "278 Ark. 9", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1748382 ], "weight": 4, "year": 1982, "pin_cites": [ { "page": "14" }, { "page": "890" } ], "opinion_index": 0, "case_paths": [ "/ark/278/0009-01" ] }, { "cite": "321 Ark. 167", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1449530 ], "weight": 3, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/321/0167-01" ] }, { "cite": "317 Ark. 289", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1443720 ], "weight": 2, "year": 1994, "pin_cites": [ { "parenthetical": "court upheld trial court's denial of Bell's pretrial motion to transfer case to juvenile court" }, { "parenthetical": "court upheld trial court's denial of Bell's pretrial motion to transfer case to juvenile court" } ], "opinion_index": 0, "case_paths": [ "/ark/317/0289-01" ] } ], "analysis": { "cardinality": 793, "char_count": 14773, "ocr_confidence": 0.8, "pagerank": { "raw": 2.6706751644088876e-07, "percentile": 0.8257689927096136 }, "sha256": "16b1efab94e22d46e5824046cd4aca1307e514be5b4c2f6854a9729b69c44a7b", "simhash": "1:07e201d614245d36", "word_count": 2472 }, "last_updated": "2023-07-14T16:22:54.921906+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Albert BELL v. STATE of Arkansas" ], "opinions": [ { "text": "Tom Glaze, Justice.\nAppellant Albert Bell was charged with two counts of capital felony murder and was convicted of two counts of first-degree murder. He was sentenced to two consecutive life sentences. According to the state\u2019s evidence, Bell and Terry Sims went to Cloud\u2019s Grocery Store in Casscoe, Arkansas County, where Sims shot store employees Julian Russell and Mary Lou Jones while Bell took money from the cash register. Bell was sixteen years old when these crimes were committed. See Bell v. State, 317 Ark. 289, 877 S.W.2d 579 (1994) (court upheld trial court\u2019s denial of Bell\u2019s pretrial motion to transfer case to juvenile court). Bell brings this appeal, raising three points for reversal. However, we do not reach all three because we must reverse for prejudicial error found as a result of this court\u2019s examination of the record required under Ark. Sup. Ct. R. 4-3(h). We consider that issue first.\nPrior to trial, Bell moved to suppress any statements he gave as a result of an interrogation by law enforcement authorities on January 8, 1992. He alleged any statements attributed to him were involuntary and inadmissible. The record reveals that Sergeant Gary Allen and Officer John McCord interrogated Bell, but only McCord was present to testify at the suppression hearing. Bell\u2019s counsel objected to Allen\u2019s absence and counsel\u2019s inability to cross examine Allen. The prosecutor responded that he was not required to produce all of the state\u2019s witnesses, and anything Allen had to testify to at the hearing would already have been testified to by McCord. The trial court overruled defense counsel\u2019s objection, and after hearing the testimony of McCord, Bell, and Bell\u2019s father, the trial court denied Bell\u2019s motion to suppress.\nRecently, in Foreman v. State, 321 Ark. 167, 901 S.W.2d 802 (1995), we cited the rule that, whenever an accused offers testimony that his confession was induced by violence, threats, coercion or offers of reward, the state has a burden to produce all material witnesses who were connected with the controverted confession or give an explanation for their absence. In determining whether a witness is \u201cmaterial,\u201d this court has stated that there must be some connection between the witness and the alleged acts of coercion or an opportunity to observe the alleged coercion. Id.\nHere, Allen was undoubtedly a material witness because he took part in interrogating Bell and in obtaining statements from him. Bell testified that Allen acted as a \u201cbad cop,\u201d and McCord as the \u201cgood cop\u201d during Bell\u2019s interrogation. Bell further claimed Allen did most of the questioning, and it was during Allen\u2019s questioning when Bell asked for an attorney, and Allen said, \u201cNo.\u201d Additionally, Bell asserted Allen would get upset, hit the desk and wall, and when Bell asked for an attorney, Allen asked, \u201c[W]hy did [you] need a lawyer, because [you\u2019re] guilty?\u201d\nIn sum, Bell\u2019s suppression motion raised the issue of the involuntariness of his statements to the police, and because Detective Allen was a material witness connected with those controverted statements, it became the state\u2019s burden to produce Alien as a witness at the suppression hearing or to explain his absence. The state did neither. The prosecutor suggested McCord\u2019s and Allen\u2019s testimonies would be the same, but such a suggestion is purely self-serving. Bell should have been afforded the opportunity to cross examine both witnesses concerning their respective roles when questioning Bell. See Williams v. State, 278 Ark. 9, 642 S.W.2d 887 (1982). We would add that it is immaterial that Allen later testified at the trial because Ark. Code Ann. \u00a7 16-89-107(b) (1987) requires the trial judge to determine voluntariness by hearing evidence out of the presence of the jury. Id. We point out that the deficiency in the trial court\u2019s ruling does not in itself entitle Bell to a new trial. Instead, the cause is remanded for a new hearing on Bell\u2019s suppression motion. A new trial should be ordered only if the trial judge finds Bell\u2019s confession to have been involuntary. Williams, 278 Ark. 9, 14, 642 S.W.2d 887, 890 (supplemental opinion denying rehearing); see also Moore v. State, 309 Ark. 166, 828 S.W.2d 599 (1992); Harris v. State, 271 Ark. 568, 609 S.W.2d 48 (1980).\nBecause this case is remanded for a suppression hearing, we do not reach Bell\u2019s argument that the trial court erred in finding his custodial statements should have been suppressed, since the trial judge will be called upon to rule on that argument after he conducts the new hearing. We only emphasize that the error we find in this appeal relates only to the state\u2019s failure to meet its burden in producing Allen as a witness.\nBell raises two other points we still must address. The first asserts the trial court erred in denying his motion to change venue, and, second, he contends that the state unconstitutionally excluded African-Americans from the jury.\nThe thrust of Bell\u2019s venue argument is that he cannot obtain a fair trial or impartial jury in Arkansas County. He sets forth a number of reasons. First, he refers to another pair of murders that took place at Cloud\u2019s Grocery Store in Casscoe in 1975. Those murders were committed by Charles Pickens, who was eventually executed for the crimes on May 12, 1994 \u2014 five months prior to Bell\u2019s trial. Third, Bell introduced news articles and testimony describing all the above events, as well as the recent crimes with which Bell was charged. Plus, Bell offered articles relating a prison escape involving him and Sims, and an article reflecting the prosecutor\u2019s remark that the state expected problems in selecting a jury for Bell\u2019s trial.\nIt is settled law that a change of venue should be granted only when it is clearly shown that a fair trial is not likely to be had in the county. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). The burden is on the defendant, and the decision of the trial judge will be upheld unless it is shown that there was an abuse of discretion in denying the motion. Id.\nInitially, we mention Bell\u2019s eight uniform affidavits wherein eight county residents averred his or her respective belief that the minds of inhabitants of the county are so prejudiced against the defendant that a fair and impartial trial cannot be obtained. This court has held that those witnesses who state the appellant cannot receive a fair trial must be able to show that they either have a general knowledge as to the state of mind of the inhabitants of the whole county, or they are cognizant of prejudice existing throughout the whole county. Id. Further, affidavits that cite little or nothing beyond an affiant\u2019s own convictions that a fair trial is not possible are insufficient. Bussard v. State, 300 Ark. 174, 778 S.W.2d 213 (1989). Here, the affidavits submitted by Bell fail to meet the well-known case law principals set out above. Additionally, we note that only one of the eight affiants testified in court, and when doing so, countered her earlier averments. For example, as a witness, she said that she had not heard anyone express an opinion that Bell was guilty, and in fact she heard some people express the opinion they thought Bell was not guilty.\nBell presented three news media witnesses who related the numerous stories that were published or aired in the county, concerning the crimes committed not only by Bell and Sims, but also concerning Pickens\u2019s murders and execution. However, one news editor testified that his paper is published five days a week with a daily circulation of 3,900 out of a household count of 12,500, and, while his Tuesday paper is free to all households, only four articles regarding Bell, Sims, or Pickens had appeared in the Tuesday editions. An editor of another newspaper said that her paper is published only once a week with a circulation of 1,800. She also stated her paper produced only five articles concerning Bell, Sims or Pickens during the period from December 1992 through March 1994.\nFinally, Bell submits the fact that a number of the veniremen were excused because they could not be impartial is reason to conclude a fair trial could not be obtained. The trial court, however, emphasized that the chief reason why the remaining veniremen were excused from duty was because of their beliefs regarding the death penalty, not pretrial publicity. The court has held that voir dire of the jury provides adequate safeguards against pretrial publicity, Bussard, 300 Ark. 174, 778 S.W.2d 213, and there can be no error in the denial of a change of venue if an examination of the jury selection shows that an impartial jury was selected and that each juror stated he or she could give the defendant a fair trial and follow the instructions of the court. Gardner, 296 Ark. 41, 754 S.W.2d 518. Here, twelve jurors were seated who indicated they could make an impartial decision based solely on the evidence. After carefully considering each of Bell\u2019s factors and the related evidence, we hold the trial court did not abuse its discretion in denying Bell\u2019s request for a change of venue.\nIn his next argument, Bell argues that because only one juror was African-American, the state unconstitutionally excluded African-Americans from the jury. Bell contends because the state used three of its five preemptory strikes against African-Americans and attempted to strike the only African-American who did serve on the jury, the state demonstrated a deliberate and systematic attempt to keep African-Americans off of the jury. Additionally, Bell claims the state was overeager in its efforts to obtain for-cause strikes against five African-Americans, and this is further evidence of an unconstitutional exclusion. Finally, Bell notes that not a single African-American venireman went unchallenged by the state. On the other hand, the state contends Bell has failed to establish a prima facie case, and it gave race-neutral reasons for its strikes.\nBatson v. Kentucky, 476 U.S. 79 (1986), provides that the Equal Protection Clause forbids prosecutors from challenging potential jurors solely on the basis of race. In order to prevail under Batson, the defendant must first make a prima facie case that racial discrimination is the basis of a juror challenge. Sims v. State, 320 Ark. 528, 900 S.W.2d 508 (1995). A prima facie case may be established by: (1) showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose, (2) demonstrating total or seriously disproportionate exclusion of blacks from the jury, or (3) showing a pattern of strikes, questions, or statements by a prosecutor during voir dire. Mitchell v. State, 323 Ark. 116, 913 S.W.2d 264 (1996).\nIn the event the defendant is able to do so, the state has the burden of showing that the challenge was not based on race. Only if the defendant makes a prima facie case and the state fails to give a racially neutral reason for the challenge is the court required to conduct a sensitive inquiry. Sims, 320 Ark. 528, 900 S.W.2d 508. The standard of review for reversal of a trial court\u2019s Batson ruling is whether the court\u2019s findings are clearly against the preponderance of the evidence. Id.\nIn the present case, out of approximately seventy-to-eighty potential jurors, twelve veniremen who appeared were African-American. Those twelve veniremen were struck or accepted as follows: (1) Helen Hall raised her hand when the judge inquired whether any of the jury pool had a close relationship with Bell or either of the two victims. Hall stated she knew Bell\u2019s parents, and it would create a problem for her; she was excused for cause. (2) Linda Reeves stated she could not consider the death penalty as a punishment; based on the state\u2019s request, Reeves was excused for cause over Bell\u2019s objection. (3) Flora Wills stated her daughter had been represented by one of Bell\u2019s attorneys, and she knew Bell\u2019s parents. She also was equivocal on whether she could impose the death penalty on one who was not the triggerman. The court refused to strike Wills for cause, and the state used its first preemptory strike. (4) Floid Lavine stated he had known the Bells for years, had coached Bell in peewee ball, and had been in the Bells\u2019s home, and that he would hold the prosecutor to a higher standard in proving Bell guilty than proving a stranger guilty. Lavine was excused for cause on the state\u2019s request and over Bell\u2019s objection. (5) Betty Chambers stated she did not think she could live with imposing the death penalty on someone, and was excused for cause upon the state\u2019s request and over Bell\u2019s objection. (6) Carnetta Holloway was selected as juror no. 6. (7) Charles Higgins was excused for cause because he had experienced two strokes which prevented him from thinking fast; Bell did not object. (8) Amanda Taylor stated she could not consider imposing the death penalty, and was excused for cause; Bell did not object. (9) James Copprell stated he was close friends of the Bells and did not think he should serve on the jury. Copprell was excused for cause, and Bell did not object. (10) Darlene McNeil stated she did not know whether she could consider the death penalty as punishment, but the court refused to excuse her for cause. Over Bell\u2019s objection, the state used a preemp-tory challenge to exclude McNeil. (11) Felicia Geans stated she could not impose the death penalty, and was excused for cause; Bell did not object. (12) Wilma Bradford stated she could not impose the death penalty, and was excused for cause; Bell did not make a specific objection to her exclusion.\nThe record reflects that the state initiated or joined in motions to excuse at least twenty-three potential jurors, and as determined by the trial judge, most of the exclusions, albeit African-American or otherwise, were based on the fact many of the veniremen could not impose the death penalty. In sum, even if a prima facie case had been shown to exist, we hold the foregoing reasons given for excluding African-Americans in this case were clearly race neutral. Consequently, we hold no Batson error was shown.\nFor the reasons above, we uphold the trial court\u2019s rulings pertaining to Bell\u2019s venue and Batson issues, but reverse and remand for a suppression hearing.\nWhen the sentence is death or life imprisonment, the court must review all errors prejudicial to the appellant in accordance with Ark. Code Ann. \u00a7 16-91-113(a). See also Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986).", "type": "majority", "author": "Tom Glaze, Justice." } ], "attorneys": [ "J. Bradley Green, for appellant.", "Winston Bryant, Att\u2019y Gen., by: Kent G. Holt, Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Albert BELL v. STATE of Arkansas\nCR 95-417\n920 S.W.2d 821\nSupreme Court of Arkansas\nOpinion delivered April 29, 1996\n[Petition for rehearing denied June 3, 1996.]\nJ. Bradley Green, for appellant.\nWinston Bryant, Att\u2019y Gen., by: Kent G. Holt, Asst. Att\u2019y Gen., for appellee.\nDudley, J., not participating." }, "file_name": "0258-01", "first_page_order": 282, "last_page_order": 290 }