Brazel v. State

Steele Hays, Justice. Appellant was charged with the capital felony murder of Steve Alexander. The jury found him guilty of murder in the first degree, recommending a sentence of forty years in the Department of Correction. Appellant alleges a number of errors in the proceedings below but none requires reversal. The first contention is that the defendant was unduly restricted in the voir dire of a prospective juror, necessitating the use of a peremptory challenge by the defense. When counsel said to a member of the panel, “The burden of proof in this case is with the State of Arkansas, to prove him guilty beyond a reasonable doubt,” the state objected on the grounds that the question was “getting into instructions.” The court sustained the objection noting that the jury had not yet been instructed on the burden of proof. The court then refused a defense request to read the instruction to the jury. While the trial court has broad discretion in the management of the voir dire examination, Sanders v. State, 278 Ark. 420, 646 S.W.2d 14 (1983), and Fauna v. State, 265 Ark. 934, 582 S.W.2d 18 (1979), wethink an objection was premature when counsel simply stated preliminarily that the state’s burden of proof was beyond a reasonable doubt. Presumably counsel intended by follow-up questions to ask the juror if she were capable of holding the state to that requirement. The mere fact some inquiry on voir dire may touch on the instructions later to be given does not per se render such questions beyond the scope of voir dire. However, as the state points out, the peremptory challenges were not exhausted by the defense and, hence, the appellant was not required to take a juror he might otherwise have excused. Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988). Second, appellant urges that it was highly prejudicial for the prosecutor to compare the appellant and an accomplice, John Heinzel, to Paul Ruiz and Earl Van Denton. The specific remark, made during opening statement was, “. . . They told everybody in the country about it, but instead of being sorry for what they did, and feeling remorse, all they have done is bragged about it, thinking what big men they are. They are celebrities now. Almost on the plane of Ruiz and Denton.” The trial court promptly and properly admonished the jury to disregard the remarks and we cannot say the occurrence so manifestly undermined the fairness of the trial that it could not continue. Ronning v. State, 295 Ark. 228, 748 S.W.2d 633 (1988). The determination of whether a mistrial is called for is within the sound discretion of the trial court and we cannot say that discretion was clearly abused in this instance. Third, after appellant’s confession was read to the jury by the officer to whom it was given, the statement was introduced in its entirety over the objection of the defense that it was repetitive and cumulative. A.R.E. Rule 403. We readily agree that the court has the power to exclude evidence, even though relevant and material, if it is cumulative or impedes the progress of the trial. However, the trial judge deemed this evidence admissible and that decision was discretionary. Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980). Fourth, appellant maintains that it was error for the trial court to admit, over a hearsay objection, the confession of a co-conspirator, John Heinzel, whose trial had been severed from the appellant. The confession, given some three weeks after the crime, admitted Heinzel’s participation in a plot with appellant to lure the victim into a wooded area, on the pretext of finding marijuana, where he was shot by the appellant. The law permits the introduction of a statement by a co-conspirator made during the course of, and in furtherance of, the conspiracy. Spears v. State, 280 Ark. 577, 660 S.W.2d 913 (1983); A.R.E. Rule 801(d)(2)(V). We agree with the appellant, that this statement did not occur during the course of the conspiracy or in furtherance of it. It was given almost four weeks after the crime and was patently a confession of the declarant’s role in the crime. It should not have been admitted. However, we agree with the state that the statement could not have prejudiced the appellant. The appellant gave a full and detailed account of his actions, including the admission that he shot the victim in the back of the head with a .12 gauge shotgun. We have examined the Heinzel statement carefully and we find few areas, and none material, where the two statements conflict. In fact, the Heinzel statement tends to support the two theories argued most strongly by the defense — i.e. that the victim was shot only once, rather than twice as the state contended, and appellant’s motivation for the killing was at the urging of appellant’s stepfather. The appellant’s own confession and testimony would have fully supported a verdict of guilty to the charge of capital murder, yet the jury found the appellant guilty only of first degree murder and recommended a sentence of forty years. We cannot conclude that the defense was harmed by the admission of this evidence. Finally, we do not believe the trial court was obliged to declare a mistrial when Officer Eisenhower was asked if he had seen or heard the defendant try to “concoct some story” about the crime. The witness answered that he had heard through other people that the defendant had tried to get them to testify to what he wanted them to say. The trial court immediately instructed the jury to disregard the question and the answer. A mistrial is an extreme remedy and we regard the timely admonition as adequate. While we do not suggest the trial was error free, we do conclude that the proof that appellant planned and executed the crime with which he was charged was overwhelming and the jury’s verdict was in no sense disproportionate. Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), cert. denied, 470 U.S. 1085 (1985). Affirmed. Purtle, J., dissents.