Bell v. State

 
Albert BELL v. STATE of Arkansas

CR 95-417                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered April 29, 1996


1.   Criminal law -- controverted confession -- all material
     witnesses must be produced. -- Whenever an accused offers
     testimony that his confession was induced by violence,
     threats, coercion or offers of reward, the State has the
     burden to produce all material witnesses who were connected
     with the controverted confession or to give an explanation for
     their absence; in determining whether a witness is "material,"
     there must be some connection between the witness and the
     alleged acts of coercion or an opportunity to observe the
     alleged coercion.  

2.   Criminal law -- state failed to meet its burden to produce
     material witness or provide adequate explanation for his
     absence -- cause remanded for new hearing on appellant's
     suppression motion. -- Appellant's suppression motion raised
     the issue of the involuntariness of his statements to the
     police, and because the detective was a material witness
     connected with those controverted statements, and the State
     failed to meet its burden to produce him as a witness at the
     suppression hearing or to explain his absence, appellant
     should have been afforded the opportunity to cross-examine
     both witnesses concerning their respective roles when
     questioning appellant; the cause was remanded for a new
     hearing on appellant's suppression motion. 

3.   New trial -- when ordered. -- A new trial should be ordered
     only if the trial judge finds appellant's confession to have
     been involuntary.  

4.   Venue -- when change of venue should be granted -- burden and
     standard on review. -- 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; 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. 

5.   Venue -- witnesses who state appellant could not receive fair
     trial in that particular venue -- proof required to be shown.
     --  In seeking a change of venue, those witnesses who state
     that 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 that they
     are cognizant of prejudice existing throughout the whole
     county; further, affidavits that cite little or nothing beyond
     an affiant's own convictions that a fair trial is not possible
     are insufficient. 

6.   Venue -- voir dire safeguards against pretrial publicity --
     denial of change of venue not error where impartial jury is
     selected. -- Voir dire of the jury provides adequate
     safeguards against pretrial publicity; 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.  

7.   Venue -- affidavits and other proof submitted by appellant
     insufficient -- denial of motion to change venue not error. -- 
     Where the affidavits of county residents submitted by
     appellant were insufficient to show the state of mind of the
     county concerning appellant's trial; where only one of the
     eight affiants testified in court, and when doing so,
     countered her earlier averments; where appellant presented
     three news-media witnesses who related the numerous stories
     that were published or aired in the county concerning the
     crimes committed; where, however, testimony established the
     limited nature of the various paper's circulations and the
     relatively small number of articles actually published
     pertaining to appellant; where it was established that a
     number of veniremen were excused because of their beliefs
     regarding the death penalty, not pretrial publicity; and where
     twelve jurors were seated who indicated they could make an
     impartial decision based solely on the evidence, the supreme
     court found that the trial court did not abuse its discretion
     in denying appellant's request for a change of venue.

8.   Jury -- potential jurors may not be challenged solely on basis
     of race -- requirements for establishing prima facie case of
     racial discrimination. -- Batson 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; 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. 

9.   Jury -- when burden shifts to state -- standard of review for
     Batson rulings. -- In the event that the defendant is able
     make a prima facie case, 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; the standard of
     review for reversal of a trial court's Batson ruling is
     whether the court's findings are clearly against the
     preponderance of the evidence. 

10.  Jury -- jury exclusions not based on race -- no Batson error
     shown. -- Where the record reflected 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, African-American or otherwise, were based on the
     fact many of the veniremen could not impose the death penalty,
     even if a prima facie case had been shown to exist, the
     reasons given for excluding African-Americans were clearly
     race neutral; no Batson error was shown. 


     Appeal from Arkansas Circuit Court; Russell Rogers, Judge;
reversed and remanded.
     J. Bradley Green, for appellant.
     Winston Bryant, Att'y Gen., by:  Kent G. Holt, Asst. Att'y
Gen., for appellee.

     Tom Glaze, Justice.
*ADVREP5*






ALBERT BELL,
                    APPELLANT,

V.

STATE OF ARKANSAS,
                    APPELLEE.



CR95-417

Opinion Delivered:  4-29-96

APPEAL FROM THE CIRCUIT COURT
OF ARKANSAS COUNTY, ARKANSAS,
NO. CR-93-4; HONORABLE RUSSELL
ROGERS, CIRCUIT JUDGE 


REVERSED AND REMANDED





                  TOM GLAZE, Associate Justice

     Appellant 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's evidence, Bell and Terry Sims went to
Cloud's 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's denial of Bell's
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's examination of the record required
under Ark. Sup. Ct. R. 4-3(h).  We consider that issue first.
     Prior 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's
counsel objected to Allen's absence and counsel's inability to
cross examine Allen.  The prosecutor responded that he was not
required to produce all of the state's 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's objection, and after hearing the testimony of McCord,
Bell, and Bell's father, the trial court denied Bell's motion to
suppress.
     Recently, 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 "material," 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.
     Here, 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 "bad cop," and McCord as the
"good cop" during Bell's interrogation.  Bell further claimed Allen
did most of the questioning, and it was during Allen's questioning
when Bell asked for an attorney, and Allen said, "No." 
Additionally, Bell asserted Allen would get upset, hit the desk and
wall, and when Bell asked for an attorney, Allen asked, "[W]hy did
[you] need a lawyer, because [you're] guilty?"
     In sum, Bell's 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's burden to produce
Allen as a witness at the suppression hearing or to explain his
absence.  The state did neither.  The prosecutor suggested McCord's
and Allen's 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. 
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's ruling
does not in itself entitle Bell to a new trial.  Instead, the cause
is remanded for a new hearing on Bell's suppression motion.  A new
trial should be ordered only if the trial judge finds Bell's
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).
     Because this case is remanded for a suppression hearing, we do
not reach Bell's 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's failure to meet its
burden in producing Allen as a witness.
     Bell 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.  
     The thrust of Bell's 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's Grocery Store in Casscoe in 1975.  Those
murders were committed by Charles Pickens, who was eventually
executed for the crimes on May 12, 1994 -- five months prior to
Bell's 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's remark that the state expected problems in selecting
a jury for Bell's trial.
     It 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.
     Initially, we mention Bell's 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's 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.
     Bell 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's 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.
     Finally, 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's
factors and the related evidence, we hold the trial court did not
abuse its discretion in denying Bell's request for a change of
venue.
     In 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.
     Batson 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).
     In 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's
Batson ruling is whether the court's findings are clearly against
the preponderance of the evidence.  Id.
     In 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's 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's request, Reeves was excused
for cause over Bell's objection.  (3)  Flora Wills stated her
daughter had been represented by one of Bell's attorneys, and she
knew Bell's 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's 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's request and over Bell's
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's request and over Bell's 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's objection, the state used a preemptory 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.
     The 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.
     For the reasons above, we uphold the trial court's rulings
pertaining to Bell's venue and Batson issues, but reverse and
remand for a suppression hearing.