Wooten v. State

Jimmy Don WOOTEN v. STATE of Arkansas

CR 95-975                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
              Opinion delivered September 16, 1996


1.   Criminal law -- procedures followed when Batson objection
     raised. -- The procedures to be followed when a Batson
     objection is raised are well established: first, the defendant
     must make a prima facie case that racial discrimination is the
     basis of a juror challenge; in the event the defendant makes
     a prima facie case, the State has the burden of showing that
     the challenge was not based upon 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.

2.   Criminal law -- Batson objection -- establishment of prima
     facie case. -- 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 prosecuting attorney during voir dire; 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. 

3.   Jury -- prosecution's use of peremptory challenge to remove
     only black prospective juror may establish prima facie case -
     - when issue of prima facie showing becomes moot. -- The
     prosecution's use of a peremptory challenge to remove the only
     black prospective juror may establish a prima facie case;
     however, once a prosecutor has offered a race-neutral
     explanation for the peremptory challenge and the trial court
     has ruled on the ultimate question of intentional
     discrimination, the preliminary issue of whether the defendant
     had made a prima facie showing becomes moot; here, the
     prosecutor volunteered an explanation for the challenge, and
     the trial court made no specific ruling on whether a prima
     facie case was made.  

4.   Appeal & error -- argument not presented at trial -- argument
     cannot be raised on appeal. -- Where appellant did not present
     the argument to the trial court, it was not preserved for
     appeal; an appellant may not change his grounds for objection
     on appeal; the court does not address arguments made for the
     first time on appeal.  

5.   Statutes -- construction of -- effect given to intent of
     legislature. -- The basic rule of statutory construction is to
     give effect to the intent of the legislature, and when a
     statute is clear, it is given its plain meaning; legislative
     intent is gathered from the plain meaning of the language
     used.  

6.   Criminal law -- admission of victim-impact evidence --
     evidence properly admitted. -- Where Arkansas Code Annotated
      5-4-602(4) (Repl. 1993) clearly provided that evidence may
     be presented as to any matter relevant to punishment,
     including, but not limited to, victim-impact evidence, and
     required that the defendant and the state be accorded an
     opportunity to rebut such evidence, the statute, contrary to
     appellant's argument, did not provide that such evidence be
     limited to rebuttal; if the State chooses to permit the
     admission of victim-impact evidence and prosecutorial argument
     on that subject, the Eighth Amendment erects no per se bar; a
     State may legitimately conclude that evidence about the victim
     and about the impact of the murder on the victim's family is
     relevant to the jury's decision as to whether or not the death
     penalty should be imposed.

7.   Constitutional law -- when trial court's ruling on in-court
     identification procedure will be reversed -- how determination
     is made. -- A trial court's ruling on the admissibility of an
     in-court identification will not be reversed unless the ruling
     is clearly erroneous under the totality of the circumstances;
     in determining whether an in-court identification is
     admissible, the court looks first to whether the pretrial
     identification procedure was unnecessarily suggestive or
     otherwise constitutionally suspect; it is the appellant's
     burden to show that the pretrial identification procedure was
     suspect; a pretrial identification violates the Due Process
     Clause when there are suggestive elements in the
     identification procedure that make it all but inevitable that
     the victim will identify one person as the culprit. 

8.   Constitutional law -- identification may be sufficiently
     reliable under totality of circumstances -- factors considered
     in determining reliability. -- Even when the identification
     process is impermissibly suggestive, the trial court may
     determine that under the totality of the circumstances the
     identification was sufficiently reliable for the matter to be
     submitted to the jury, and then it is for the jury to decide
     the weight the identification testimony should be given; in
     determining reliability, the following factors are considered:
     (1) the prior opportunity of the witness to observe the
     alleged act; (2) the accuracy of the prior description of the
     accused; (3) any identification of another person prior to the
     pretrial identification procedure; (4) the level of certainty
     demonstrated at the confrontation; (5) the failure of the
     witness to identify the defendant on a prior occasion; and (6)
     the lapse of time between the alleged act and the pretrial
     identification procedure. 

9.   Constitutional law -- trial court concluded lineup was not
     suggestive -- no error found. -- Where the trial judge
     concluded that he did not see "much disparity at all" between
     the individuals placed in the lineup and "there's nothing to
     the Court that appears to be suggestive," the appellate court
     could not say that the trial court's ruling was clearly
     erroneous; there was nothing in the lineup that would direct
     a witness toward appellant as the assailant; an accused is not
     entitled to have a lineup in which all the participants are
     identical.

10.  Appeal & error -- no ruling made on motion to suppress in-
     court identification -- matter not subject to review. -- 
     Where, on appeal, appellant submitted that the in-court
     identification was not sufficiently reliable because there was
     no evidence presented as to the witnesses' degree of attention
     or their opportunity to view the assailant during the crime;
     however, appellant did not obtain a ruling on his motion to
     suppress the in-court identification; therefore, the point was
     not preserved on appeal; failure to obtain a ruling on an
     issue at the trial court level, including a constitutional
     issue, precludes review of the issue on appeal.  


     Appeal from Pope Circuit Court; John S. Patterson, Judge;
affirmed.
     Gibbons Law Firm, P.A., by:  David L. Gibbons, for appellant.
     Winston Bryant, Att'y Gen., by:  Clint Miller, Deputy Att'y
Gen., Sr. Appellate Advocate for appellee.

     Andree Layton Roaf, Justice.
     Appellant Jimmy Don Wooten was convicted of capital murder,
criminal attempt to commit capital murder, and aggravated assault. 
Wooten was sentenced to death by lethal injection on the capital
murder charge, thirty years' imprisonment on the attempt to commit
capital murder charge, and six years' imprisonment on the
aggravated assault charge.  On appeal, he contends that the trial
court erred in (1) overruling his Batson objection during jury
selection, (2) in allowing victim-impact evidence during the
penalty phase of his trial, and (3) in failing to suppress
identification testimony. We find no error and affirm.
     On August 5, 1994, David LaSalle, Henry Teb Porter, and Molly
Porter were hiking on a forest trail near the Long Pool recreation
area in Pope County when they encountered appellant Jimmy Don
Wooten.  Wooten was riding a six-wheel all-terrain vehicle. At
trial,  Henry Porter testified that the group had three encounters
with Wooten before he attacked them and shot David LaSalle. 
LaSalle died as a result of a single gunshot wound to the head. 
Porter also testified that Wooten shot him in the shoulder,
forearm, and face, and that he was able to remove the key from
Wooten's all-terrain vehicle before Wooten chased him into the
woods.   Molly Porter, Henry Porter's daughter, testified that
Wooten shot LaSalle and shot her father and chased after him.
     On the day of the shooting, Wooten reported that an assailant
who looked just like him had stolen his six-wheel vehicle while he
was fishing near Long Pool and had shot at him using the .22
caliber pistol he had in the vehicle.  Wooten claimed that he later
found the vehicle with the gun abandoned by the side of the road
near his truck.  A .22 caliber bullet was recovered from David
LaSalle's body.  It was determined that Wooten's gun fired a spent
.22 caliber cartridge found at the location where LaSalle and
Porter were shot.  In addition, swimming trunks found at Wooten's
home matched Henry and Molly Porter's description of trunks worn by
the assailant.
     In a bifurcated proceeding, the jury found Wooten guilty of
capital murder.  During the penalty phase of his trial, the jury
found one aggravating circumstance and concluded that it justified
beyond a reasonable doubt a sentence of death.
                       1.  Jury Selection
     Wooten first argues that the trial court erred in allowing the
state to remove the sole African-American from the jury panel by a
peremptory strike when she was otherwise qualified and unbiased and
not challenged for cause.  In Prowell v. State, 324 Ark. 335, 921 S.W.2d 585 (1996), we recently set forth the standard to be applied
in reviewing an objection based upon Batson v. Kentucky, 476 U.S. 79 (1986). We wrote:
     The procedures to be followed when a Batson objection is
     raised are well established:

          First, the defendant must make a prima facie
          case that racial discrimination is the basis
          of a juror challenge.  In the event the
          defendant makes a prima facie case, the State
          has the burden of showing that the challenge
          was not based upon 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.

     Mitchell v. State, 323 Ark. 116, 913 S.W.2d 264 (1996);
     Heard v. State, 322 Ark. 553, 910 S.W.2d 663 (1995). 
     Further, this Court has stated that 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 prosecuting attorney during voir dire. 
     Id.  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 instant case, the State exercised a peremptory
challenge to excuse Ms. Shirley Hatley.  The prosecuting attorney
stated that Ms. Hatley could not say that she would be able to sign
the death penalty form if the State proved its burden.  Counsel for
Wooten objected based upon Batson and stated for the record that
Ms. Hatley was the sole African-American on the panel.   Wooten's
counsel asserted that Ms. Hatley in fact stated that she could
consider the death penalty.  In response, the prosecuting attorney
asserted that Ms. Hatley was the only juror who stated that she did
not know whether she could sign the death penalty form.  The
prosecuting attorney also noted for the record that Wooten and the
officers involved in the case were all white, but he conceded that
Wooten was not precluded from raising a Batson objection. See
Powers v. Ohio, 449 U.S. 400 (1991) (defendant's race is irrelevant
to his standing to object to the discriminatory  use of peremptory
challenges).
     In overruling Wooten's Batson objection, the trial court
concluded that Ms. Hatley was very hesitant in her responses to the
state and that she never said that under the proper circumstances
she could actually vote for the death penalty.  The trial judge
stated, "I don't think there is a proper Batson situation here and
I'll allow them to use a peremptory challenge on Ms. Hatley."
     On appeal, Wooten contends that a prima facie case was
established because the sole African-American was excused from the
panel.  See Mitchell v. State, 295 Ark. 341, 750 S.W.2d 936 (1988). 
Granted, we have stated that the prosecution's use of a peremptory
challenge to remove the only black prospective juror may establish
a prima facie case.  Cooper v. State, 324 Ark. 135, 919 S.W.2d 205
(1996); Mitchell v. State, 295 Ark. 341, 750 S.W.2d 936 (1988). 
However, as in Prowell v. State, supra, here the prosecutor
volunteered an explanation for the challenge, and the trial court
made no specific ruling on whether a prima facie case was made.  In
Prowell, this court recognized that once a prosecutor has offered
a race-neutral explanation for the peremptory challenge and the
trial court has ruled on the ultimate question of intentional
discrimination, the preliminary issue of whether the defendant had
made a prima facie showing becomes moot.  See Hernandez v. New
York, 500 U.S. 352 (1991).
     Wooten also asserts that the State failed to provide a
racially neutral reason for the challenge, and he contends that a
white venireperson examined at the same time as Ms. Hatley  and two
others who were questioned after Ms. Hatley was excused gave
answers similar to Hatley's, but were not challenged.  In support
of his argument, Wooten cites Ford v. Norris, 67 F.3d 162 (8th.
Cir. 1995), where the court stated that "a prosecutor's failure to
apply a stated reason for striking black jurors to similarly
situated white jurors may evince a pretext for excluding jurors
solely on the basis of race."
     However, Wooten did not present this argument to the trial
court.  In fact, Wooten did not mention other similarly situated
jurors when the prosecuting attorney stated that Ms. Hatley was the
only juror to that point who had said she did not know if she could
sign the form or when the trial court  noted that Ms. Hatley was
very hesitant in her responses to the State. Because an appellant
may not change his grounds for objection on appeal, this point is
not preserved on appeal.  Gilland v. State, 318 Ark. 72, 883 S.W.2d 474 (1994).  We do not address arguments made for the first time on
appeal.  Allen v. State, 324 Ark. 1, 918 S.W.2d 699 (1996).  
                   2.  Victim-Impact Evidence
     Wooten next argues that the trial court erred in allowing the
state to use victim-impact evidence in the State's initial
presentation during the penalty phase rather than as rebuttal to
any mitigating evidence offered by Wooten.
     During its initial presentation of evidence in the sentencing
phase of the trial, the State introduced victim-impact testimony
from David LaSalle's wife.  Prior to the beginning of the
sentencing phase, Wooten asserted that under Payne v. Tennessee,
501 U.S. 808 (1991), victim-impact evidence could only be admitted
to counteract or rebut mitigating evidence offered by the
defendant.  Wooten contended that the State could not present the
evidence during its initial presentation in the sentencing phase. 
The trial court concluded that the General Assembly had authorized
the use of victim-impact testimony and that Payne did not clearly
provide that victim-impact testimony was limited to rebut
mitigating evidence.  On appeal, Wooten again argues that victim-
impact evidence may be offered only to rebut certain evidence in
mitigation offered by the defendant.
     The basic rule of statutory construction is to give effect to
the intent of the legislature, and when a statute is clear, it is
given its plain meaning.  Hercules Inc. v. Pledger, 319 Ark. 702,
894 S.W.2d 576 (1995); see also State v. McLeod, 318 Ark. 781, 888 S.W.2d 639 (1994).  The legislative intent is gathered from the
plain meaning of the language used.  Id.  Arkansas Code Annotated
 5-4-602(4) (Repl. 1993), Capital murder charge - Trial procedure,
provides in part:
     (4) In determining sentence, evidence may be presented to the
     jury as to any matters relating to aggravating circumstances
     enumerated in  5-4-604, any mitigating circumstances, or any
     other matter relevant to punishment, including, but not
     limited to, victim impact evidence, provided that the
     defendant and the state are accorded an opportunity to rebut
     such evidence.

We initially note that the statute clearly provides that evidence
may be presented as to any matter relevant to punishment,
including, but not limited to, victim-impact evidence.  The statute
does require that the defendant and the State be accorded an
opportunity to rebut such evidence; however, the statute does not
provide that such evidence be limited to rebuttal.
     In further support of his argument, Wooten relies on Section
2 of Act 1089 of 1993.  Act 1089 enacted  5-4-602(4), and section
2 provided:
     It is the express intention of this act to permit the
     prosecution to introduce victim impact evidence as
     permitted by the United States Supreme Court in Payne v.
     Tennessee, 111 S. Ct. 2597, 115 L. Ed. 2d 720 (1991).
Wooten argues in essence that the General Assembly intended to
restrict the use of victim-impact evidence to those limits imposed
by Payne and that Payne only permits victim-impact evidence to
rebut evidence of mitigation offered by the defendant.
     We do not agree with Wooten's reading of the statute or of
Payne.  Wooten's interpretation of Payne is too narrow; he
concludes that the Supreme Court's reference to "counteracting"
mandates that victim-impact evidence be limited to the rebuttal
phase of sentencing.  Granted, the Court in Payne stated that "the
State has a legitimate interest in counteracting the mitigating
evidence which the defendant is entitled to put in." (Emphasis
supplied.)  However, the Court in the same paragraph stated that
"[w]e are now of the view that a State may properly conclude that
for the jury to assess meaningfully the defendant's moral
culpability and blameworthiness, it should have before it at the
sentencing phase evidence of the specific harm caused by the      
defendant." Payne, 501 U.S.  at 825. The Court went on to hold as
follows:
      We thus hold that if the State chooses to permit the
     admission of victim impact evidence and prosecutorial argument
     on that subject, the Eighth Amendment erects no per se bar. A
     State may legitimately conclude that evidence about the victim
     and about the impact of the murder on the victim's family is
     relevant to the jury's decision as to whether or not the death
     penalty should be imposed."

Payne, 501 U.S.  at 827.

                  3.  Identification Testimony

     For his final argument, Wooten contends that the trial court
erred in denying his motion to exclude evidence of his
identification in a lineup because the lineup was unduly suggestive
in violation of the Fifth and Fourteenth Amendments to the United
States Constitution.  Prior to trial, Wooten moved to suppress
testimony regarding both his pretrial and in-court identification
because the pretrial physical lineup procedures were unduly
suggestive, and any subsequent in-court identification would be
tainted by the pretrial procedures.  On appeal, Wooten submits that
the trial court erred in failing to suppress the evidence of the
lineup and the identification testimony of Henry Porter and Molly
Porter.
     We will not reverse a trial court's ruling on the
admissibility of an in-court identification unless the ruling is
clearly erroneous under the totality of the circumstances.  Prowell
v. State, 324 Ark. 335, 921 S.W.2d 585 (1996).  In determining
whether an in-court identification is admissible, we look first at
whether the pretrial-identification procedure was unnecessarily
suggestive or otherwise constitutionally suspect; it is the
appellant's burden to show that the pretrial-identification
procedure was suspect.  Id.  A pretrial identification violates the
Due Process Clause when there are suggestive elements in the
identification procedure that make it all but inevitable that the
victim will identify one person as the culprit.  Id.
     However, even when the process is impermissibly suggestive,
the trial court may determine that under the totality of the
circumstances the identification was sufficiently reliable for the
matter to be submitted to the jury, and then it is for the jury to
decide the weight the identification testimony should be given. 
Id.  In determining reliability, the following factors are
considered: (1) the prior opportunity of the witness to observe the
alleged act; (2) the accuracy of the prior description of the
accused; (3) any identification of another person prior to the
pretrial identification procedure; (4) the level of certainty
demonstrated at the confrontation; (5) the failure of the witness
to identify the defendant on a prior occasion; and (6) the lapse of
time between the alleged act and the pretrial identification
procedure.  Id.
     Both Henry Porter and Molly Porter selected Wooten from a
lineup conducted on the day of the incident and identified him as
the assailant at trial.  At the suppression hearing, Johnny Casto
of the Pope County Sheriff's Department testified that Henry Porter
initially described the assailant as being in his late twenties,
five feet, seven inches tall, approximately 135 to 140 pounds, with
sandy blond hair.  Mr. Porter did not state that the assailant had
either a mustache or beard.  Pope County Sheriff Jay Winters
testified that Molly Porter described the assailant as being in his
late twenties with light brown hair, 5'6" tall, and approximately
140 to 150 pounds.  She also did not mention a beard or mustache. 
Appellant Wooten contends that the lineup conducted was overly
suggestive because, based upon the description provided by the two
witnesses, it was inevitable that he would be picked.  
     Wooten submits that he was the shortest person in the lineup
by three to four inches. He asserts that the person closest to his
height had gray hair and a mustache, that two other persons
depicted in the lineup had facial hair, and that two persons
appeared to be in their late teens or early twenties.  The trial
court concluded that he did not see "much disparity at all" between
the individuals placed in the lineup and "there's nothing to the
Court that appears to be suggestive."  We cannot say that the trial
court's ruling was clearly erroneous;  there is simply nothing in
the lineup that would direct a witness toward Wooten as the
assailant.  See King v. State, 323 Ark. 558, 916 S.W.2d 725 (1996). 
Further, an accused is not entitled to have a lineup in which all
the participants are identical.  Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982).
     Moreover, even when the pretrial process is impermissibly
suggestive, the trial court may determine that under the totality
of the circumstances the identification was sufficiently reliable
for the matter to be submitted to the jury.  See Prowell v. State,
supra.  On appeal, Wooten submits that the in-court identification
was not sufficiently reliable because there was no evidence
presented as to the witnesses' degree of attention or their
opportunity to view the assailant during the crime.
     However,  Wooten did not obtain a ruling on his motion to
suppress the in-court identification; therefore, this point is not
preserved on appeal.  At the conclusion of the suppression hearing,
the trial court stated that "with respect to your motion to
suppress evidence of in-court identification, it's a little
premature."  Counsel for Wooten stated that, given the court's
ruling on his motion to suppress the lineup identification, he
agreed with the trial court.  Wooten did not object at trial when
Henry Porter and Molly Porter identified him as the assailant.  We
have repeatedly stated that failure to obtain a ruling on an issue
at the trial court level, including a constitutional issue,
precludes review of the issue on appeal.  Laudan v. State, 322 Ark.
58, 907 S.W.2d 131 (1995); Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995).
                     Ark. Sup. Ct. R. 4-3(h)
    The record has been examined in accordance with Arkansas
Supreme Court Rule 4-3(h), and there were no rulings adverse to
Wooten which constituted prejudicial error.
     Affirmed.