# Snell v. State

> Supreme Court of Arkansas · December 15, 1986 · 290 Ark. 503

URL: https://www.frixlaw.com/law-library/cases/9766730

## Case

- **Full name:** Richard Wayne SNELL v. STATE of Arkansas
- **Court:** Supreme Court of Arkansas
- **Decided:** December 15, 1986
- **Citations:** 290 Ark. 503; 721 S.W.2d 628; 1986 Ark. LEXIS 2226
- **Precedential status:** Published
- **Opinion:** Dissent by Purtle
- **Judges:** Hays, Purtle, Glaze
- **Cited by:** 57 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

John I. Purtle, Justice, dissenting. At the outset I will state that this trial is the most one-sided proceeding that I have ever reviewed. Almost without exception each objection by the state was sustained and each objection by the defense was overruled. The appellant was not only tried for the murder of Bill Stumpp, he was also tried a second time for the murder of state trooper Bryant, and, additionally, for plotting a robbery in Missouri that never occurred, and for knowing the activities of the CSA.
At the time of this trial, the atmosphere in southwest Arkansas was charged with hostility. There was a hue and cry for revenge because a loved and respected trooper had been gunned down and four more officers had died in an accident on the way to the funeral. It is no wonder then that the people were vengeful when the murderer of the trooper was about to be tried for the murder of another local citizen. Such is human nature. However, the meanest man on earth is entitled to a fair trial before being convicted. We are, after all, still a nation of laws. That being so, it is my belief that the appellant did not receive a fair trial under the applicable law. The trial resulted in a conviction and a sentence of death. If a jury had been admittedly biased and prejudiced, it could not have inflicted a greater punishment. If given a new trial, free of prejudicial error, the appellant might indeed receive the same sentence. If so, so be it. We will have followed the law.
The motion for change of venue was timely and properly filed. Two affidavits were filed in support of the motion. The state did not file counter-affidavits. Both affiants testified at the hearing on the motion. The first witness was Dennis Chambers, a local attorney. He stated, “I understand for the purpose of the change of venue, Arkansas law requires that I have knowledge throughout the county before the affidavit is made.” He explained in detail why he thought that the appellant could not get a fair trial in Miller County. He further testified that this opinion was based on county-wide information. Judy Doolittle, the second witness, stated, “I have discussed this case with people from all over.” After this hearing the court found that the witnesses were credible individuals and qualified electors, but that their information was too “remote.” I do not understand the meaning of “remote” as used in this context.
The appellant had filed with the motion numerous newspaper stories concerning this trial, himself, the CSA and officer Bryant’s murder. The court also heard the testimony of a local television station representative relating to the amount of publicity surrounding the case. The voir dire itself reflects the bias and prejudice that permeated the community with respect to this case.
Without regard to whether the prospective juror was seated, the early questioning by the court reveals the intensity of the feeling which existed in Miller County on the day this trial commenced:
COURT: Come around and tell us what you know. Tammy Crenshaw.
PANEL MEMBER: I just know too much about it. Louis Bryant was a good friend of mine, and I knew Bill Stumpp too. I have had business dealings with Bill. I am totally prejudiced.
COURT: Anyone further. . . .
J. JOHNSON: [F]rom the papers and all, it leads to a foregone conclusion.
COURT: I am going to reserve a ruling on your statement until we make individual voir dire. We have one coming up.
PANEL MEMBER: I would assume everybody is. [This response was apparently directed toward J. Johnson.]
MEMBER: Officer Bryant’s wife and I were classmates— I am close with her and her family.
COURT: Realizing that that is not their case, but because it’s the same defendant. . . .
MEMBER: [Ejxactly. I couldn’t really be unbiased in my opinion.
The court excused this member (Wade) and the defense requested that the excused member stay and give testimony on the motion for a change of venue. The court ignored the request and summarily announced, “Mr. Wade is excused.” Additional voir dire:
MEMBER; I just feel that people of this caliber is a nuisance to society. I just can’t. . .
COURT: You have formed an opinion and cannot be swayed?
MEMBER: No, sir.
COURT: Whatsoever?
MEMBER: No.
COURT: Why, what are you basing that on?
MEMBER: Well, a policeman — well, you might say I am prejudiced —, but for someone to go out and do something — that I have to go out — and work —, I can’t go along with those folks.
COURT: Are you basing this on Bryant?
MEMBER: The connection.
COURT: In other words, you are so biased toward the defendant that you could not listen to the testimony from the witness stand. . .
MEMBER: It wouldn’t make any difference.
DEFENSE: Judge, may I insert at this point I would like the record to reflect that I would like an opportunity to question this man for purposes of pretrial publicity that would be included in our motion for change of venue.
COURT: The Court has dismissed this witness at this point.
COURT: Yes?
STATE: [It] is totally improper he even suggest that a juror can be called and put on the spot like they are attempting to do.
DEFENSE: He said he formed an opinion, and that opinion could only have come about by pretrial publicity. He has heard no evidence in this case and he had already formed an opinion.
DEFENSE: May we be allowed to inquire of those witnesses [jurors] that you are inquiring of, ask them some particular questions?
COU RT: You may ask leave of the court in each particular witness.
DEFENSE: But Judge, say that they have an opinion based on another reason. Can we ask them before they are excused whether or not publicity has had anything to do with that biased opinion? [The record as abstracted shows no response.]
MEMBER: I know trooper Bryant. I just don’t think I can be fair with the man.
DEFENSE: Judge, at this time may I be allowed to inquire of Mr. Story?
COURT: I am satisfied with the answers as far as his reasoning, and you are excused, sir.
It is clear the court refused to allow the defense to question any of the panel members concerning the very heart of the motion to change venue. The above exchange was before the entire panel. Individual voir dire took place later. Obviously their excusal by the court placed the testimony of these panel members concerning pretrial publicity beyond the reach of the defense.
The state continued to court the prospective jurors when responding to the defense request to examine the members of the panel concerning bias. The prosecutor stated, “[t]hese people are here to be selected as members of this jury panel and should not be subjected to harrassment in the form of this type question.” If such a statement appeared only once in the record, I could not say it was done for the purpose of procuring favor for the state. However, during the course of the voir dire, the prosecutor repeated this statement several times.
The court stated that it intended to allow members of the panel to be questioned in individual voir dire concerning pretrial publicity and bias. However, the court failed to do so. I must again resort to verbatim quotation of the voir dire:
COURT: You would then place a burden on the defendant?
MEMBER: Yes.
COURT: Where did you get that idea?
MEMBER: It is because of what I have read in the paper about the situation and the previous case of which he has already been convicted and is on appeal. I just have some strong feelings about it.
COURT: You are excused.
DEFENSE: Your Honor, could we keep her for pretrial publicity?
COURT: She is excused.
Defense counsel once again attempted to question the panel members as to the reason for their prejudice. The court stated that the juror “just dismissed did not in any way cause any prejudice to the defendant inasmuch as she has been excused.” The excused member had just presented her views to the remaining members. Her view was that the appellant was as guilty of murdering Mr. Stumpp as he was of murdering officer Bryant. From the record as abstracted it is my opinion that the defense has shown that the appellant did not receive a fair trial. Had the court allowed counsel to question those members of the panel who were excused, the question of the effect of the pretrial publicity might well have been settled conclusively one way or the other. Considering the newspaper clippings, the affidavits, the testimony, and the voir dire of the entire panel, I think justice and fair play dictate the reversal of this case.
Next, I think it was improper for the trial court to inform the jury, even with consent of defense counsel, of the meaning of a sentence of life without parole. I cannot imagine why the majority opinion states: “There is nothing so corrupting in the jury being told about parole that defense counsel can stipulate to a statement of the law being given to a jury and then use it as a means of reversal.” Even though defense counsel did consent to this information being given to the jury, the error was not cured by this consent.
Not only did the trial court mishandle the statement of John Thomas Holmer, the statement was, to some extent, exculpatory. The statement was in the possession of the prosecuting attorney or the local department from the date it was taken, July 15,1984, to the date of the trial. It was not disclosed by the state in discovery and it was in fact never seen by the defense. The majority opinion alludes to the fact that the appellant and Holmer were in contact with each other up through the trial. I find nothing in the record to support this statement.
I am not at all satisfied with the majority’s treatment of the statement of John Thomas Holmer. The opinion implies that the state may take an exculpatory statement from a person and then decide not to call the person as a witness in order to keep the defense from knowing the contents of the statement. My greatest dissatisfaction, however, is the manner in which this matter was handled by the trial court. The defense tried to obtain the statement prior to trial but the state refused to furnish it. During the trial the defense again sought to secure a copy of the statement, which was alleged to be exculpatory. During an in camera hearing the state allowed the trial judge to review the statement. The court refused to allow the defense to look at the statement, instead stating that there was nothing exculpatory in the statement. The court also overruled appellant’s request to place the statement in a sealed envelope and attach it to the record. I think it was improper for the court to read the statement and inform the appellant that he would just have to take the court’s word that the statement was not exculpatory.
Some of the examples of questions and answers in the Holmer statement are:
Q: He never did specifically mention robbing?
A: No.
Q: Has Wayne Snell ever mentioned to you the possibility of robbing Bill Stumpp?
A: No . . . well, he might have, I don’t know, he always talked about wild things, he might have.
Q: Okay John at this time I would like to show you a watch fob that came from the Pawn Shop on the day of the murder, can you identify it?
A: I don’t know... he dealt in pocket watches, most of the stuff he dealt in was gold . . . that appears to be silver but he did deal in gold and silver. I don’t know.
Q: But you can’t say that you’ve ever seen it in his or Mary Jo’s possession?
A: I can’t say that positively that I have.
Q: Has he ever mentioned the Pawn Shop Murder to you?
Q: Would he mention the pawn shop murder to you?
A: No, he thought I was a federal agent when he first met me.
Q: If Wayne Snell did in fact commit the Murder at Joe’s Pawn Shop, why do you think he couldn’t have gotten rid or sold or destroyed the murder weapon?
A: That goes against everything I have ever seen ... he always said you steal something or take something like that, never take anything that is serial that can be tied back to you . . . that’s why it didn’t make a lick of sense to me when I was told that was that weapon.
Q: John at this time I would like to show you two 22 weapons that were found in the van with Wayne Snell, see if you can identify either one of them.
A: I’ve never seen one rigged that way but I have seen a similar weapon.
Q: There is no major criminal ring that they are involved in?
A: No, not that I am aware of. . . I don’t think so, I really don’t. When I first met them I used to smoke pot. I used to do a lot of things but I talked to Jim Ellison about that one time and he said he thought that he was being a servant of the devil.
Q: You’ve never heard them advocate killing?
A: No.
Portions of the statement were certainly not favorable to the appellant. However, the defendant should have been allowed to examine the statement made by Holmer.
It is quite clear that the trial court relied on Ark. Stat. Ann. § 43-2011.3, which requires the state to furnish statements to the defense when it calls that individual as a witness. Holmer was not called as a witness. However, the court should have also considered A.R.Cr.P. Rule 17.1(d), which requires the prosecution to disclose to defense counsel any material or information within its knowledge which tends to negate the guilt of the defendant. Rule 19.4 requires that such information be disclosed in time to permit counsel to make beneficial use of it. By approving this tactic on the part of the state, this Court might as well abolish Rule 17 because the state will henceforth decide not to use such witnesses. We will then revert to “hiding behind a log” and “bushwhacking”, like we did in the good old days.
In my opinion the most conspicuous prejudicial error occurred when witness Stephen Scott took the stand. The following exchange occurred:
COURT: Mr. Scott, are you familiar with Miranda. . . ?
DEFENSE: (at the bench) Your Honor, can I approach the bench? I object to this man being read his constitutional rights in front of the jury. . . .
COURT: Because he is not represented by an attorney?
DEFENSE: Well, Judge, every witness here is not . . .
STATE: It doesn’t matter about what you object to . . .
At this time the jury was removed from the courtroom. How much of the above conversation the panel heard is unknown. The statement of the prosecutor is quoted because it is indicative of the manner in which the trial was prosecuted. As a direct result of the court’s sua sponte action, the witness did not testify. Very likely most members of the jury caught the implications of the Miranda warning.
An additional error occurred when a witness for the defendant was extensively cross-examined by the prosecutor about the CSA and its purpose, beliefs and training. The obviously irrelevant questions concerned the activities and beliefs of his grandfather:
STATE: Your grandfather is involved or sympathetic toward the movement, is he not?
WITNESS: What movement?
STATE: CSA, Posse Comitatus, tax protest?
DEFENSE: Judge, what does this have to do. . .1 object, first of all to relevancy.
COURT: I am overruling at this point in time. This is proper impeachment.
DEFENSE: Anything concerning his grandfather is?
COURT: It goes to credibility . . . overruled the objection. . . . The state has assured the court it has relevancy, and I am relying on that.
The prosecution was allowed to prove that the CSA was a group of armed rebellious people who were in constant violation of the law. This same witness was forced to admit that he had been charged with conspiracy to possess automatic weapons and explosives. Such admission was not enough for the state:
STATE: Would that be hand grenades?
DEFENSE: Your Honor, . . . I . . . object.
COURT: Overruled. . . .
DEFENSE: But not on possessing hand grenades. . . .
STATE: He just testified to conspiracy.
COURT: Overruled the objection.
STATE: Part of that military training was to learn how to fire automatic weapons, was it not?
All of this testimony was admitted over the objection of defense counsel. No doubt defense counsel incurred disfavor with the jury as a result of being forced to object so often. The same question was asked many times. There is no materiality or relavance in any of these questions. The only purpose of such testimony was to inflame the minds of the jury against the defendant. The panel undoubtedly by this time had decided the CSA was quite a bad apple. Another problem with this testimony is that the appellant was not even a member of the CSA. Whether the grandfather of this witness was a shining light in his church or hanged as a horse thief is not relevant to this case.
Another witness, under pending sentence as a racketeer, testified about a lot of criminal and dishonest activities by members of the CSA. A sample is as follows:
STATE: What was the first indication that you recognized that this organization might be something other than a Christian organization?
WITNESS: It took my getting arrested and put into prison . . . Cary Noble would take and add logs to the scale.
DEFENSE: ... I object.
COURT: I am going to sustain the objection.
STATE: Your Honor, I think that we can show that this entire organization lends itself to the motive and intent of the murder of the pawn shop operator here in Texarkana.
DEFENSE: — Mr. Snell — wasn’t a member of CSA. . .
STATE: That will become apparent, Your Honor, throughout the testimony.
COURT: — I will sustain the objection.
STATE: Your Honor, — the point — was changing from a Christian organization —
DEFENSE: Judge, he is not testifying.
COURT: There is a way to ask him that question without so specifically stating. Mr. Thomas what — when first of all did you notice this change and what caused you to believe this?
WITNESS: To accept what they were doing?
COURT: Yes.
WITNESS: As I stated Cary Noble, who was an elder there, would cheat on the scale books.
DEFENSE: Your Honor, I am going to object to this. The court has already ruled on it and he is getting right back into it.
COURT: I would overrule the objection. That was my point, the specific point of getting to cheating on logs. . . .
The court thus made the point that the CSA was a criminal organization clearer to the jury than did the prosecution. The court sustained the defense objection to this line of questioning and then itself proceeded to elicit this information from the witness anyway. If it was proper to sustain the objection, why should the result be different if this information is introduced by the court?
In response to the court’s questions, the same witness stated:
As we become more aggressive we began to collect weapons. We constantly lived under the pressure that we were going to be raided from the government because of the illegal weapons we had.
We had a lot of mini 14’s, 2.3 caliber, H&K 308’s, 45 handguns, .22’s, 9 millimeter handguns — this was basically what we had at first. We eventually got into automatic weapons, converting the weapons we had.
The irrelevant testimony reached its most prejudicial point in a series of questions relating to CSA plans to rob a pawnshop in Springfield, Missouri, and to murder the owner because he was Jewish. The robbery never took place. I cannot refrain from quoting at length:
STATE: What was the plan prior to arriving in Springfield?
A: The plan how we would do it was to, Wayne would go into the pawnshop with his briefcase, and he would get the store keeper talking about gold and buying gold and what have you, and jewelry, and Wayne would bring out some interesting pieces of jewelry, watches, — shortly thereafter, Y ates and Scott were to come in behind them and they were going to be carrying a time device that would blow up after they robbed the store.
STATE: What did you plan to do with the occupants of the store?
WITNESS: They were going to kill her.
STATE: What was the bomb device to do?
WITNESS: To burn it down.
STATE: To cover the evidence?
WITNESS: Yes, sir.
STATE: What type religious affiliation did these people have?
WITNESS: Jewish.
STATE: Was there something about the doctrine of the CSA involving Jewish people?
WITNESS: Yes, sir.
DEFENSE: Your Honor, ;— object. . .
STATE: I think Your Honor, we can show the relevance that they were intending to go rob and murder the pawnshop operator because they were of the Jewish persuasion.
COURT: Overrule your objection. You may proceed.
The record is replete with similar testimony. The proof of the impact of this evidence is in the sentence received by the appellant — death by lethal injection. This sentence could easily have been predicted. The appellant was already under a sentence of life without parole for the murder of a state policeman. The jury was admittedly aware of the appellant’s conviction for this crime. The only additional sentence that could have dispensed any retribution for this crime was that which was pronounced in this case.
723 S.W.2d 1 Guilt by association should not be condoned by the courts. Even if such evidence had relevance the prejudicial effect greatly outweighed the probative value. A.R.E. Rule 403. An accused is entitled to a fair and impartial trial, before a qualified jury, on the specific offense with which he is charged. This trial should have been tried in another county, even if outside the judicial district. See Perry v. State, 277 Ark. 357 , 642 S.W.2d 865 (1982). The constitutional right to a fair and impartial trial is so fundamental that the place of the trial becomes secondary.
I would reverse and remand this case because of the specific errors discussed above. However, this is a case where the totality of the circumstances or cumulative effect of the errors requires reversal.
Supplemental Opinion on Denial of Rehearing Delivered February 9, 1987
Per Curiam. By petition for rehearing Richard Wayne Snell offers three reasons for a reversal of his conviction for capital felony murder. Two of the asserted grounds (the admission of evidence concerning the Covenant, Arm and Sword of the Lord and the fact the jury was told the meaning of life without parole) were argued previously and will not be discussed anew. See Rule 20(g) of the Rules of the Supreme Court and Court of Appeals.
The remaining point, which was not raised in the trial court nor in this court prior to the petition for rehearing, concerns the issue of double counting. In Collins v. Lockhart, 754 F.2d 258 (8th Cir. 1985) the Eighth Circuit Court of Appeals vacated the death penalty of Carl Albert Collins because one of the aggravating circumstances, murder for pecuniary gain, duplicated one of the elements of the crime itself, murder committed in the course of a robbery. The duplication was held to be a violation of the 8th and 14th Amendments to the United States Constitution. See also Woodard v. State, 806 F.2d 153 (8th Cir. 1986) and Ruiz v. Lockhart, 806 F.2d 158 (8th Cir. 1986).
However, we have never decided the issue and do not do so here because there was no objection on that ground to the jury instructions at trial and no argument to that effect in the initial appeal. New rules are as settled as the fundamental rule that we will not consider an argument for reversal in the absence of an appropriate objection in the trial court. Fretwell v. State, 289 Ark. 91, 98 , 718 S.W.2d 109 (1986). We find no basis for an exception in this case. Wicks v. State, 270 Ark. 781 , 606 S.W.2d 366 (1980).
Petition for rehearing denied.
Glaze, J., not participating.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9766730. Public record. Not legal advice.