Appeal from Greene Circuit Court, Charles W. Light, Judge; reversed.
1. JURY - COMPETENCY OF JUROR - PRESUMPTION OF INNOCENCE. - When a venireman in a criminal trial states he can lay aside preconceived opinions and give accused the benefit of all doubts defined by law, the venireman qualifies as "impartial" under constitutional requirements.
The opinion of the court was delivered by: Conley Byrd, Justice.
Appellant Clyde Ray Glover was found guilty of murder in the first degree and sentenced to death for the alleged killing of Judy Evans. The gruesome facts, as related by an accomplice and as told by appellant to his own Sixteen year old son, will not be reiterated because the evidence is clearly sufficient to sustain the verdict. In fact the sufficiency of the evidence is recognized in appellant's brief as follows:
"The evidence of the state, if believed by the trier of fact, was abundantly ample to support his conviction [248 Ark Page 1262]
and sentence to death by electrocution. In the prosecution of this appeal, it will not be our purpose to persuade the court that the evidence was not sufficient to sustain a conviction. As a matter of fact, the evidence of the State, if believed, reveals one of the more gruesome murders and subsequent attempt to conceal murder recorded in the annals of this State. There was and is a serious question about the credibility of each and every material witness for the State. The defendant's defense was predicated upon an alibi and upon the lack of credibility of all material witnesses called against him."
For reversal appellant relies upon the following points:
I. "The court erred in refusing to quash the search warrant issued on March 5, 1969, and in refusing to exclude evidence obtained pursuant to such search warrant.
II. The court erred in overruling appellant's challenges for cause to talesmen Ralph Shoe, Glenn T. Boyd, Wayne L. Britewell and Alvin Jackson White.
III. The court erred in refusing to allow the defendant to prove on cross-examination of the state witness Peggy Pitcher that said witness had been told that the defendant and her husband had been double-dating.
IV. The court erred in commenting on the weight of the evidence by stating in effect in the presence of the jury that there was no testimony justifying the inference that witness Leorn Pitcher had assaulted the decedent with an intent to kill her.
V. The court erred in allowing the accomplice Latham to testify that after the crime he [248 Ark Page 1263]
showed the officers the place where a ring, allegedly taken from the finger of the decedent, was buried and that the officers recovered the ring at the place pointed out by the witness.
VI. The court erred in allowing Deputy Prosecuting Attorney Howard Mayes to comment on defendant's failure to take the witness stand. VII. The court erred in refusing to give defendant's requested instruction No. 1."
Because we are reversing the judgment for failure of the trial court to excuse from the jury talesmen Ralph Shoe, Glenn T. Boyd, Wayne L. Britewell and Alvin Jackson White we do not discuss Points IV and VI. They are not likely to arise on a new trial.
The record, with respect to talesmen Shoe, Boyd, Britewell and Jackson, is as follows:
Juror Ralph Shoe when interrogated by the court stated:
"I just formed my own opinion. A witness could come on the stand and change everything. I formed an opinion from what I read about it and heard talked about it. As I say, a witness could change it all around. I would disregard whatever opinions I have formed in the past and base my verdict simply and strictly on the evidence given and the law given without regard to any opinions which I may have previously held. I did not talk to any body who purported to be a witness."
When interrogated by defendant's counsel the juror stated:
"My present mental state is that I would attempt to follow what the court says about the evidence and the law and consider only the evidence heard from the witness stand and the law given me by [248 Ark Page 1264]
the court. But, in that connection, until I hear evidence from the witness stand that gives me grounds to believe something which would cause me to change my ideas, I would still have those ideas.
Juror Glenn T. Boyd when questioned by the court said that he had formed an opinion and that he realized whatever he read in the paper was hearsay and if selected as a juror he would disregard it and try the appellant on the evidence he heard in court. But when interrogated by defendant's counsel, he said:
"I formed some tentative opinions about the matter which I presently entertain. While I indicated to His Honor that I would be willing to set this opinion aside and try the case on the law and the evidence, until some evidence is introduced to remove that opinion, I will still have it."
Juror Wayne L. Britewell testified as follows:
"I recall reading about the death of the decedent. It is a little hard not to form an opinion. Regardless of the opinions I have formed and regardless of whether what I may have read or heard is true, I would try it on the evidence I hear in court to the best of my ability." I would set these opinions aside.
Interrogation by appellant's counsel:
"In answering Judge Light, I stated that what I had read and heard was the only evidence I had, that I believe that I was supposed to go by the evidence. Until such time as I did hear evidence in this case, I would entertain my present opinion.
"The opinions I have formed were arrived at either [248 Ark Page 1265]
from hearing about it from other people who did not purport to be witnesses or from what I read in the paper. This is an opinion which I could readily disregard. I would readily disregard such an opinion and base my verdict wholly and solely on the evidence in the case. Interrogation by counsel:
"It would take some evidence to remove my present opinion."
Juror Alvin Jackson White after interrogation by the court finally stated to appellant's counsel: "Although I have indicated an answer to his Honor's questions that I am perfectly willing to set aside my present opinions to the best of my ability and try the case on the law and the evidence, it would take evidence to remove that opinion and I would keep that opinion until I heard evidence to the contrary."
Both the U.S. Constitution, Amendment No. 6, and the Arkansas Constitution, Art. 2, 10, guarantee the accused in all criminal prosecutions trial "by impartial jury". In a case involving a sensational killing and newspaper publicity it is almost impossible to find an informed citizen to serve on the jury who has not heard about the case and who has not formed some opinion based upon the newspaper accounts. In such cases it is the duty of the trial court to determine whether an opinion has been formed and whether the jurors can lay aside such opinion and give to the accused the benefit of all doubts that the law requires while trying him on the law and the evidence given to them during the trial. When a venireman states that he can lay aside such preconceived opinions and give to the accused the benefit of the doubts to which he is entitled under law, it is generally conceded that the venireman qualifies as "impartial" under the constitutional requirements. See Rowe v. State, 224 Ark. 671, 275 S.W.2d 887 (1955), where we said: [248 Ark Page 1266]
"While it is true that some of the veniremen said that they had formed tentative opinions based upon newspaper reports or what some one had told them, all who were accepted stated that they could and would be guided solely by the testimony, giving to the defendant the benefit of all doubts that the law defines. There was no error in accepting these men. It is no longer practicable in an intelligent society to select jurors from a psychological vacuum or from a stratum where information common to the community as a whole is lacking."
In Irvin v. Dowd, 366 U.S. 717, 6 L.Ed.2d 751, 81 S.Ct. 1939 (1961), the U.S. Supreme Court, speaking through Mr. Justice Tom Clark, discussed the "impartial" juror requirement in this language:
". . . In essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, `indifferent' jurors. The failure to accord an accused a fair hearing violates even the minimal standards of due process. Re Oliver, 333 U.S. 257, 92 L. Ed 682, 68 S.Ct. 499; Tumey v. Ohio, 273 U.S. 510, 71 L.Ed. 749, 47 S.Ct. 437, 50 ALR 1243 `A fair trial in a fair tribunal is a basic requirement of due process.' Re Murchison, 349 U.S. 133, 136, 99 L.Ed. 942, 946, 75 S.Ct. 623. In the ultimate analysis, only the jury can strip a man of his liberty or his life. In the language of Lord Coke, a juror must be as `indifferent as he stands unsworne.' Co. Litt. 155b. His verdict must be based upon the evidence developed at the trial. Cf. Thompson v. Louisville, 362 U.S. 199, 4 L. Ed 2d 654, 80 S.Ct. 624. This is true, regardless of the heinousness of the crime charged, the apparent guilt of the offender or the station in life which he occupies. It was so written into our law as early as 1807 by Chief Justice Marshall in 1 Burr's Trial 416 (1807). `The theory of the law is that a juror who has formed an opinion cannot be impartial.' Reynolds v. United States, 98 U.S. 145, 155, 25 L.Ed. 244, 246. [248 Ark Page 1267]
It is not required, however, that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. Spies v. Illinois, 123 U.S. 131, 31 L.Ed. 80, 8 S.Ct. 21, 22; Holt v. United States, 218 U.S. 245, 54 L.Ed. 1021, 31 S.Ct. 2, 20 Ann. Cas. 1138; Reynolds v. United States (U.S.) supra.
The adoption of such a rule, however, `cannot foreclose inquiry as to whether, in a given case, the application of that rule works a deprivation of the prisoner's life or liberty without due process of law.' Lisenba v. California, 314 U.S. 219, 236, 86 L.Ed. 166, 180, 62 S.Ct. 280. As stated in Reynolds, the test is `whether the nature and strength of the opinion formed are such as in law necessarily . . . raise the presumption of partiality. The question thus presented is one of mixed law and fact. . . .' At p. 156. `The affirmative of the issue is upon the challenger. Unless he shows the actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality, the juror need not necessarily be set aside . . . . If a positive and decided opinion had been formed, he would have been incompetent even though it had not been expressed.' At p. 157. As was stated in Brown v. Allen, 344 U.S. 443, 507, 97 L.Ed. 469, 515, 73 S.Ct. 397, the so-called mixed questions or the application of constitutional [248 Ark Page 1268]
principles to the facts as found leave the duty of adjudication with the federal judge.' It was, therefore, the duty of the Court of Appeals to independently evaluate the voir dire testimony of the impaneled jurors."
Thus it appears to us that talesmen Shoe, Boyd, Britewell and White, in stating that they would keep their opinion formed from reading the newspaper until they heard evidence to the contrary, did not qualify as "impartial" jurors within the meaning of either the U.S. Constitution or the Constitution of Arkansas. It follows that the trial court erred in not discharging the four talesmen for cause.
The error is clearly before us because the appellant used four of his peremptory challenges on the four talesmen involved and after all of his peremptory challenges were exhausted, he caused the record to show that if he had not been required to so exhaust his challenges on these four talesmen, he would have peremptorily challenged talesman Burns who sat on the jury.
In examining the points raised by the appellant, we find no error in the trial court's refusal to quash the search warrant and exclude the evidence obtained thereby. Both the appellant and the state rely on our decision in Walton v. State, 245 Ark. 84, 431 S.W.2d 462 (1968), for their respective positions on this point. In Walton we said:
". . . While an affidavit for a search warrant may be based upon personal observations of the affiant, it may also be based, in whole or in part, on hearsay information. When it is based upon hearsay, the magistrate must be informed of some of the underlying circumstances from which an informant concluded that the object of a proposed search was where he said it was. He must also be advised [248 Ark Page 1269]
of some of the circumstances from which the officer concludes that the informer (whose identity need not be then disclosed) is credible or his information reliable. An affidavit, which does not contain any affirmative allegation that affiant speaks with personal knowledge of the matters contained therein and also fails to show that information given by an unidentified source was not merely his suspicion, belief or conclusion, has been held not to show probable cause."
It will be noted that while an affidavit for a search warrant may be based upon personal observation of the affiant, it may also be based on hearsay information. When the affidavit is based upon hearsay, the magistrate must be informed of some of the underlying circumstances from which an informant concluded that the object of the proposed search was where he said it was. The rule, as we announced it in Walton, is simply designed to eliminate issuance of search warrants on mere suspicion expressed to the issuing magistrate by affiants based on hearsay. The affiants must give the magistrate the benefit of their personal observation when the warrant is sought on that basis, and the affiant must pass on to the magistrate the facts and circumstances the affiant obtained on hearsay information, when the warrant is sought on that basis. The rule, as set out in Walton, goes no further than good common sense directs in the interest of justice and fair play. Neither this court nor any other court, insofar as we have been able to determine, has held that an affiant must prove beyond a reasonable doubt the truth of the contents of his affidavit for a search warrant before a valid search warrant may be issued by the magistrate.
The object of the search in the case at bar was a revolving red light and the affidavit states that the officers had reasonable ground for believing that "a revolving red light, DC current, was owned by Ray Glover and that said revolving red light is now located upon the property and premises of the said Ray [248 Ark Page 1270]
Glover on Highway 1 North of Paragould, in Greene County, Arkansas; and that said revolving red light was used upon the highway in this county on or about March 1, 1969, to stop a vehicle driven by one Judy Evans; and the affiants have reasonable grounds for believing said Judy Evans was killed and murdered on that date by Ray Glover together with other person or persons." Now, concerning the information furnished by the officers in their affidavit as to the underlying circumstances from which their informant concluded that the red light was where he said it was; and as to the advice of some of the circumstances from which the officers concluded that the informer was credible or his information reliable, the officers state in their affidavit as follows:
"That affiants have been so informed by an informant known to these affiants, the informant stating that he was present with Ray Glover at the time the revolving red light was placed in a building upon the aforementioned property of Ray Glover.
That the informant is known to the affiants and that previous information supplied by said informant has proven reliable and accurate and that the affiants have reason to believe that the information herein is also reliable and dependable.
That on another occasion informant gave information that a certain ring was worn upon the person of the said Judy Evans at the time of her death; that the ring was removed by Ray Glover and in the presence of the informant buried at a certain location supplied to affiants and other investigating officers; that upon a search of the location given by the informant said ring was in fact found.
That on other occasions this informant has supplied information concerning theft of automobiles by person or persons when in fact said automobiles had been reported stolen. [248 Ark Page 1271]
That affiants further state that the said Ray Glover was at all times mentioned herein wearing a leather jacket, shirt, trousers, shoes, at the time of the killing of the said Judy Evans and upon informant's information said clothing is believed to be located upon the premises herein described; that said clothing is believed to contain evidence of the killing."
We simply hold that the affidavit in the case at bar furnished the magistrate all that it was necessary for him to know, and the court did not err in refusing to quash the search warrant or exclude the evidence obtained thereunder.
As to appellant's third point, the State's witness, Peggy Pitcher, admitted that she was involved in civil litigation with the appellant and she readily admitted that she disliked him. Mrs. Pitcher and her husband had purchased a house trailer from appellant which he repossessed with its contents, which Mrs. Pitcher says was purchased from other parties and belonged to her. Mrs. Pitcher's dislike for the appellant and not the reason for her dislike, might have been such cause that would affect her credibility as a witness. Perkins v. State, 168 Ark. 710, 271 S.W. 326 (1925). Mrs. Pitcher had already admitted her dislike for appellant and we find no error in the court's refusal to permit appellant to cross-examine Peggy Pitcher concerning what she had been told about double-dating by her husband and appellant. The offer of proof on this point indicates an obvious effort to prove Peggy Pitcher's bias against appellant. Under offer of proof, Mrs. Pitcher denied that she knew anything about her husband and appellant double-dating with one Alice Cannon and the decedent Judy Evans. We hold that the trial court was in the proper exercise of its discretion in limiting the scope of cross-examination of Peggy Pitcher as to what had been told her about double-dating. [248 Ark Page 1272]
We find no merit in appellant's fifth point. There was no objection to Latham's testimony that he was present when the appellant drew a ring off decedent's finger and when appellant subsequently wrapped the ring in masking tape and buried it at the end of a bridge near Corning. Appellant concedes that a picture of Latham, offered in evidence and depicting him showing C. I. D. men where the ring was buried, was not objectionable because its reception would have been harmless, absent the testimony to which the appellant does object. Latham's testimony to which appellant objects appears as follows:
"Q. Where did Ray Glover wrap the ring ...