Opposition Brief — Norris v. Orndorff
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[IN THE SUPREME COURT OF THE UNITED
STATES
OCTOBER TERM, 1993
LARI NORRIS, Interi Directo!
Arkansas Department of Correcti
PETITIONER
MICHAEL RAY ORNDORFF
RESPONDENT
ON WRIT OF CERTIORARI
NITED STATES COURT OF APPEALS
[TO THE UD
FOR THE EIGHTH CIRCUIT
BRIEF FOR RESPONDENT
IN OPPOSITION TO PETITION FOR
WRIT OF CERTIORARI
MICHAEL RAY ORNDORFF, Responden
BY: Kenneth Breckenridge
534 Ouachita Avenue
Hot Springs, Arkansas 7190
(501) 623-7500
AR BAR NO. 84015
Attorney for Respondent
1
A
1
NO.93-1012
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1993
LARRY NORRIS, Interim Director
Arkansas Department of Correction
PETITIONER
Vv.
MICHAEL RAY ORNDORFF
RESPONDENT
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
BRIEF FOR RESPONDENT
[IN OPPOSITION TO PETITION FOR
WRIT OF CERTIORARI
MICHAEL RAY ORNDORFF, Respondent
BY: Kenneth Breckenridge
534 Ouachita Avenue
Hot Springs, Arkansas 71901
(501) 623-7500
AR BAR NO. 84015
Attorney for Respondent
QUESTIONS PRESENTED FOR REVIEW
WHETHER THE UNITED STATES COURT OF APPEALS' DETERMINATION THAT
AFTER BRECHT, THE CHAPMAN HARMLESS ERROR STANDARD STILL BE APPLIED
IN A HABEAS CASE, IS ERROR?
PARTIES
The parties to this proceeding are Larry Norris, Interim
Director, Arkansas Department of Correction, Petitioner, and
Michael Ray Orndorff, an inmate on death row in the Arkansas
Department of Correction, Respondent. Respondent files this
response to petition for writ of certiorari to the United States
Court of Appeals for the Eighth Circuit.
TABLE OF CONTENTS
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REASONS FOR DENYING THE WRIT
THE COURT OF APPEALS' DETERMINATION THAT
AFTER BRECHT THE CHAPMAN HARMLESS ERROR
STANDARD STILL APPLIED TO THIS HABEAS CASE,
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APPENDIX A: Eighth Circuit Opinion,
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APPENDIX B: Eighth Circuit Order,
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APPENDIX C: United States District Court Opinion,
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APPENDIX D: Arkansas Supreme Court Opinion,
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iii
TABLE OF AUTHORITIES
“ASES PAGE
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Chapman v. California, 386 U.S. 18 BPO Ee pecccvccccce cds oebs bebe?
Kotteakos v. United States, 328 U.S. 750 [eeebedeebeececeeawvacan
Orndorff v. Lockhart, 707 F.Supp. 1062 (E. D. Ark. 1988).......2
Orndorff v. Lockhart, 906 F.2d 1230 Sth Cir
denied, 111 S.Ct. 1338 SPW RN 66 06 66666608660 O bbb bebe CdaRaweennel
7.
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Orndorff v. Lockhart, 998 F.2d 142
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Rock v. Arkansas, 483 pe. a Bee ba 6 8668 8 bed 6 be oe obeeeceecnenu
United States v. Adams, 581 F.2d 193 7uenm Cif. i977
cert. denied, 439 U.S. 1006(1978 TEMVR RTS T Cee eee ee eee Te eee
: Yakes v. Evatt, 5( U.S. Lil -Ct. 1884, 114 L.Ed.2d
OPINIONS BELOW
The opinion of the Arkansas Supreme Court on Direct appeal is
contained in the appendix. The official citation to the opinion is
Clines v. State, 280 Ark. 77, 656 S.W.2d 684 (1993), cert. denied,
465 U.S. 1051 (1993).
The opinion of the Arkansas Supreme Court in the Case for
collateral relief pursuant to Arkansas State law is Clines v.
State, 282 Ark. 541, 669 S.W.2d 883 (1984); it is reproduced as
appendix "B" hereto.
The opinion of the Untied States District Court for the
Eastern District of Arkansas, by the Honorable Henry Woods, is
reproduced as appendix "C" hereto, and is reported as Orndorff v.
Lockhart, 707 F.Supp. 1062.
The opinion from with Certiorari is sought is from the United
States Court of Appeals for the Eighth Circuit, and is reproduced
as appendix "D" hereto, and is reported as Orndorff v. Lockhart,
906 F.2d 1230 (8th Cir. 1990).
The opinion, after remand, of the United States District Court
for the Eastern District of Arkansas, by the Honorable Henry Woods,
(denying petitioner relief), is reproduced as appendix "E" hereto.
The split opinion of the three judge panel of the United
States court of Appeals for the Eight Circuit (denying relief to
three of the four petitioners), is reproduced as appendix "F"
hereto.
The split opinion of the en banc United States Court of
Appeals for the Eight Circuit (affirming the denial of relief t
three of the four petitioners) is reproduced as appendix G
hereto. [t is from this decision that certiorari is s ught
JURISDICTIONAL STATEMENT
Petitioner asserts that this Court has
jurisdiction to review this case pursuant to 28 U.S.C.
CONSTITUTIONAL PROVISIONS
’
The Confrontation Clause of the Sixth Amendment to
states Constitution provides:
In all criminal prosecutions, the accused
shall enjoy the right....to be confronted with
the witnesses against him;...
vii
discretionary
the United
STATEMENT OF THE CASE
Respondent, Michael Ray Orndorff, was convicted of capitol
murder for the killing of Donald Lehman and sentenced to death.
There were three other co-defendants convicted with him, Hoyt F.
Clines, James W. Holmes, and Darryl V. Richley, and they also
received the death penalty. The victim's daughter, Vickie Lehman,
who was an eyewitness to the murder, gave two statements to the
police shortly after the crime describing the events of that night.
The prosecution then had Vickie Lehman undergo hypnosis on two
separate occasions prior to trial to try and help her remember more
details about the crime and the killers. During the second
hypnosis the prosecution staged a reenactment of the crime. The
prosecution failed to tell the defense attorneys about the
hypnosis. This was discovered during the federal habeas
proceedings. The district court found that the prosecutor's
failure to inform the defense about the hypnosis was constitutional
error but found that it was harmless as to the guilt phase of the
bifurcated trial, but held that the error was not harmless as to
the penalty phase of the trial. Orndorff v. Lockhart, 707 F.Supp.
1062 (E.D. Ark. 1988). On appeal, the Eighth Circuit Court of
Appeals agreed that the error was harmless as to the guilt phase,
but remanded that case to reconsider the question regarding the
penalty phase. Orndorff v. Lockhart, 906 F.2d 1230 (8th Cir.
1990), cert. denied, 111 S.Ct. 1338 (1991). On remand, the
district court found the error was harmless beyond a reasonable
viii
doubt under Chapman v. California, 286 U.S. 18 (1967). On appeal,
the Eighth Circuit held that in spite of this Court's recent
decision in Brecht v. Abrahamson, 113 S.Ct. 1710 (1993), the
Standard to be applied was still the Chapman standard in this
habeas case.
The Eighth Circuit Court of Appeals reversed as to Respondent
Orndorff finding that the error was not harmless beyond a
reasoneble doubt. Orndorff v. Lockhart 988 F.2d 1426 (8th Cir.
1993). Petitioner seeks review of certiorari from that decision.
ix
REASCNS FOR DENYING THE WRIT OF CERTIORARI
THE COURT OF APPEALS DETERMINATION
THAT AFTER BRECHT THE CHAPMAN HARMLESS
ERROR STANDARD STILL APPLIED TO
THIS HABEAS CASE, IS CORRECT.
The Separate Respondent, Michael Orndorff, had raised a claim
of Vv
Olation of the Confrontation Clause in his original habeas
petition. The Respondent along with his three co-defendants were
convicted of capitol murder for the murder of Donald Lehman, during
the robbery of Lehman's home in Rogers, Arkansas. Vickie Lehman,
the victims daughter and Virginia Lehaan, the victim's wife, were
eyewitnesses to the incident. Vickie Lehman gave two statements to
the police after the incident. The first statement was given of
the night of the crime and the second statement was given four days
later. Vickie Lehman was then hypnotized on two separate
occasions, in an attempt to enhance her memory and to hopefuliy
discover more details about the crime. The first hypnosis was
conducted in the hypnotist's office in Rogers, Arkansas. The
second hypnosis was conducted immediately prior to the re-enactment
of the crime. The prosecuting attorney was present at the re
enactment of the crime. It is not argued that the defense was not
told about they had hypnosis until after the direct appeal was
filed with the Supreme Court of the State of Arkansas. Therefore,
this issue is not raised in state court.
The District Court found that the prosecutor's failure to
inform the defense about the hypnosis was a constitutional error
but that it was harmless beyond a reasonable doubt as to the guilt
phase of the bifurcated trial. However, it held that the error was
not harmless as to the penalty phase of the trial. Orndorff v.
Lockhart, 707 F.Supp 1062 (E.D. Ark. 1988). On appeal, the Eight
Circuit Court of Appeals agreed that the error was harmless beyond
a reasonable doubt as to the guilt phase, but remanded the case to
the district court to reconsider the question regarding the penalty
phase. Orndorff v. Lockhart, 906 F.2d 1230 (8th Cir. 1990), cert.
denied, 111 S. Ct. 1338 (1991). The Court of Appeals instructed
the District Court to conduct a comparison of Vickie Lehman's trial
testimony with the two statements given before her hypnosis in
order to determine if a confrontation clause violation occurred
and, if so, whether it was harmless beyond a reasonable doubt.
Orndorff v. Lockhart, 906 F.2d at 1232. After the parties had
filed briefs with the case, this court decided the case of Brecht
v. Abrahamson, 507 U.S.-, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993).
The Eighth Circuit Court then requested additional briefs regarding
the impact of Brecht on this case. After oral argument, the Eight
Circuit Court of Appeals held that because this Confrontation
Clause issue was not raised in state court, there had been no
harmless beyond a reasonable doubt analysis under Chapman v.
California, 386 U.S. 18 (1967), and therefore, this Court's
decision in Brecht would not apply. Orndorff v. Lockhart, 998 F.2d
1426, 1430 (8th Cir. 1993). The Eighth Circuit Court of Appeals
-2-
agreed that an analysis under Brecht would normally cover this
issue but not in the present case. The Eighth Circuit Court of
Appeals thus reversed its original denial of relief as to the
respondent Orndorff. Orndorff v. Lockhart, 998 F.2d at 1436.
The sole issue raised on this petition by the state is whether the
alleged constitutional violation, i.e. the State's failure to
disclose that one of its witnesses had been hypnotized, constituted
harmless error and which standard to apply. The Court recently
modified the standard to be applied for reviewing a constitutional
violation. It is correct that the Court has modified the standard
to be applied for reviewing a constitution violation for harmless
error. Brecht v. Abrahamson, 507 U.S. _—_s,- 113 S.Ct. 1710 (1993).
The new standard is "whether the error ‘had substantial and
injurious effect or influence in determining the jury's verdict.
The Eighth Circuit declined to apply the standard and instead to
apply the standard previously established in Chapman v. California,
386 U.S. 18 (1967).
Despite the petitioners contention, the Eighth Circuit Court
of Appeals was correct in its analysis of the facts of this case
when it stated:
The Brecht rule is based on the notion that because the
State courts can properly apply the Chapman harmless
error standard on direct review, the federal habeas
courts need only review those decisions under. the
Kotteakog harmless error standard. However, in the case
before us, thee state courts did not have the opportunity
to review the error at all and the federal habeas court
was the first court to review the constitutional error
under the Chapman harmless errors standard. As a result,
we find the rule announced in Brecht does not apply and
that the Chapman harmless error standard and is the
appropriate test in this case.
-3-
Orndorff, 988 F.2d at 1430.
The Court's finding in Brecht was based upon a number of
factors. First, state courts are qualified to perform the review
of constitutional errors under the harmless error analysis of
Chapman _v. California, 386 U.S. 181 (1967). Second, continued
review of a case by a federal court under the same standard of
review used by the state court is a threat to the state's
sovereignty over criminal matters, and ignores the state's interest
in the finality of their trial decisions. The basic philosophical
undermining of Brecht is that harm results from continued review of
the same issue under the same standard by state courts and then by
federal courts. Therefore, the Supreme Court determined that
different standard of review should be applied to habeas review of
state court decisions on constitutional trial errors.
However, the Court specifically validated Chapman, pointing
out that this review was a necessary component of the protection
against constitutional violations and was necessary to insure
proper review of constitutional errors. The Court stated:
State course are fully qualified to identify
constitutional error and evaluate its prejudicial effect
on the trial process under Chapman, and State courts
often occupy a superior vantage point from which it
evaluate the effect of trial error.
Brecht 61 L.W.at 4340.
Based upon the reasoning, the Court chose not to apply the
Chapman review to habeas cases, although it had specifically done
so previously in Yakes v. Evatt, 500 U.S. (1991), a case with the
Appellants relied upon in their prior brief.
-4-
The instant case involved a Confrontation Clause violation.
(The District Court also found a 14th Amendment Due Process clause
violation.) If these violations had been brought to the attention
of the Arkansas Supreme Court on direct appeal, that court would
have been obliged to perform a Chapman review, determining whether
the State had proven that the violation was harmless beyond a
reasonable doubt. However, the violation in this case was the
hypnosis of the main state witnesses, which violation was not
discovered until the habeas proceeding.
Brecht is distinguishable from the case at bar in that it does
not involve successive (or excessive) reviews under the Chapman
Standard. This is the first review of this issue by any court, and
it should be conducted under the Chapman standard, not under
Brecht.
The thrust of the Brecht decision is that the Chapman standard
of proof of harmless error beyond a reasonable doubt is an
important protection of the rights of defendants against
Constitutional trial errors. The Court merely pointed out that the
scate courts were in a position to properly review Constitutional
errors under Chapman standard. The harm of excessive reviews, a
threat to state sovereignty over criminal matters, and the State's
interest in the finality of its decisions are not present in this
case because the Arkansas Courts have never had the opportunity to
review this error.
In fact, the majority opinion concurrences and the dissents in
Brecht recognize the "notion that Chapman's harmless-error standard
-5-
is required to protect constitutional. rights." (White, J.,
dissenting, 61 L.W. at 434). The only issue, therefore, is whether
the Federal Court should also apply this standard.
Thus, Brecht is completely distinguishable from the case at
bar. Because there has never been a Chapman review by any court in
this case, it is required that one be done by this court, as it is
the only remaining forum available to the Appellants. Every
criminal defendant should be entitled to a Chapman review of
possible constitutional violations, which would have been given had
the issue been presented to the State Court.
Because of the importance of the Chapman review, if this court
finds that the fact that the State court did not perform the review
because the issue was not presented is insufficient to trigger an
exception to Brecht, then the additional fact that the issue was
not presented because of the State's conduct should create an
exception and trigger the Chapman review. This is not an argument
under Footnote 9 of Brecht because it is appellant's contention
that, due to the importance of the Chapman review, all that is
necessary to trigger this exception is that there was a
constitutional error which would have been presented to the State
Court for Chapman review and the State's conduct not precluded that
review.
The State court has not had the opportunity to review this
constitutional violation, solely because of the State's conduct.
To decline to apply the Chapman standard in this case would make
the standard of review applicable to constitutional violations
-6§-
dependant upon when the violation was discovered, and thus become
hostage to the State's actions. To refuse to conduct this review
under the Chapman standard would therefore reward the prosecutor
for his misconduct and would, in effect, encourage other
prosecutors to knowingly hide errors, since they would benefit by
hiding constitutional violations until the post-conviction stage.
The District Court, in its original 1988 Opinion, found that
the prosecutor's action was intentional, in that he know or should
have known that the hypnosis had to be disclosed. The District
Court also found that the prosecutor knowingly failed to disclosed
the hypnosis in response to interrogatories and in violation of
state law.
This court can never know what the State court's conclusion
may have been had the error been reviewed under the Chapman
Standard, since the prosecutor's nondisclosure circumvented this
safe guard in the system. Therefore, the State should not benefit
by having to meet a lessor standard of proof than the Chapman
standard because of its misconduct. To do so would allow the
prosecutors to dictate the standards of review by their disclosure
and benefit from nondisclosure.
This case falls under the exception noted in Footnote 9 of the
Brecht decision. The Supreme Court, in Brecht, stated in Footnote
Our holding does not foreclose the possibility that in an
unusual case, a deliberate and especially egregious error
of the trial type, or one that is combined with a pattern
of prosecutorial misconduct, might so infect the
integrity of the proceeding as to warrant the grant of
habeas relief, even it did not substantially influence
the jury's verdict.
-7-
This is exactly the sort of case that the exception was meant to
remedy.
It is undisputed that the prosecutor's error in this case was
deliberate. The prosecutor did not disclose the hypnosis, in
violation of Arkansas Rule of Criminal Procedure 17.1 and in
violation of a pre-trial court order (July 29, 1988, District Court
Opinion at 14). In addition, the prosecutor testified at the
habeas hearing that he had done legal research and located the case
of United States v. Adams, 581 F.2d 193 (9th Cir. 1977), cert.
denied, 439 U.S. 1006 (1978), which expressly states that the fact
the hypnosis has been undertaken must be disclosed. (July 29, 1998,
District court Opinion at 13).
The Prosecutor, in spite of this knowledge, decided not to
disclose the hypnosis.
The District Court's original Decision pointed out the harm of
hypnosis and the haphazard and the unprofessional manner in which
this hypnosis was conducted. (July 29, 1988, District Court
Opinion at 4-7) The error was the use of hypnosis in such an
unprofessional manner, and the resulting reliance up on the witness
by the prosecuting attorney and his arguments to the jury that they
Should rely on the "amazing recollection" of the hypnotized
witness. (July 29, 1988, District Court Opinion at 11) As the
District Court pointed out in its original decision, the action of
the Prosecutor and his conduct during the trial indicates that he
was intentionally misleading the jury as to the source of Vicki
Lehman's newly discovered memory, and misleading the jury and court
-§gs-
as to whether hypnosis had been conducted. (July 29, 1988, Opinion
at 8-12)
To apply the word "error" to the facts of this instant case is
a misnomer. It is not a constitutional error, but deliberate
violation of the Confrontation Clause.
A review of the Appellant's 1988 original brief, pages 1-1l1l,
sets out the basis for this claim. The scope of the misconduct can
be seen in the later case of Rock v. Arkansas, supra, where this
same prosecutor, who had hypnotised Vicki Lehman, objected to the
introduction of hypnotically enhanced testimony by the defendant,
Rock, during his prosecution. This prosecutor apparently discloses
evidence and applies the rules only when they enure to his benefit.
This violation infected the entire integrity of the
proceeding, as seen by the hypnotically enhanced statements of
Vickie Lehman, and in the sentence of death. Four men are on death
row, only one of whom actually shot the victim and only two (or
maybe three, 9r four, according to Lehman's’ post-hypnotic
testimony) of whom were armed with guns. The severity of the
result, despite the differing culpability and mitigation, shows the
extent to which this proceeding was infected.
Because of the misconduct set out above, and the pattern of
deception with which the prosecutor set out to hide his misdeeds,
the case fulls under the Footnote 9 exception.
CONCLUSION
This case does not present any issues that are worthy of any
review of the decision by the Eighth Circuit Court of Appeals. The
Eighth Circuit Court of Appeals was correct in granting relief to
the Respondent. There are no special or important reasons for this
Court to review on Writ of Certiorari.
Respectfully submitted,
Michael Orndorff, Resondent
BY: KENENTH BRECKENRIDGE
Attorney for Respondent
534 Ouachita Avenue
Suite II
Hot Springs, AR 71901
(50,1) 623-7500
JO > —
VE: - }
(Kenneth Breckénridge /
AR BAR NO. 84015
-10-
CERTI
ICATE OF SERVICE
I, Kenneth Breckenridge, do hereby certify that I have served
a copy of the above and foregoing pleading upon all attorneys of
record for all other parties in this action, by placing a copy of
same in U.S. mail, postage prepaid, on this 7€- day of March,
1994.
Mr. Marshall Carlisle Mr. Olan Reeves
16 East Spring 200 Tower Bldg.
Fayetteville, AR 72701 323 Center Street
Little Rock, AR 72201
Mr. Gerald A. Coleman Mr. Mark Cambiano
P.O. Box 1667 108 South Moose Street
West Memphis, AR 72301 Morrilton, AR 72110
LZ
J ra — . —
a
ie
” -
Kenneth Breckenridge
.
684 Ark.
280 Ark. 77
Hoyt Franklin CLINES, James William
Holmes, Darryl V. Richley and Michael
Ray Orndorff, Appellants,
v.
STATE of Arkansas, Appellee.
No. CR 82-4.
Supreme Court of Arkansas
July 5, 1983
tehearing Denied Oct. 3, 1983
Defendants were convicted in the Ben
ton County Circuit Court, William H. En
field, J., of capital murder, and were sen-
tenced to death, and they appealed. The
Supreme Court, Hays, J., held that: (1) the
capital murder statute did not violate de-
fendants’ constitutional rights on basis that
the statutory scheme did not require the
jury to consider the culpability of each indi-
vidual defendant; (2) the trial court did not
abuse its discretion in refusing to grant
separate trials; (3) the trial court did not
abuse its discretion in limiting the four
defendants to a total of 12 peremptory chal-
lenges; (4) it was not an abuse of discretion
for the trial court to order a five-day re-
cess; (5) reversible error did not occur due
to introduction of evidence of other crimes
and acts against two defendants; and (6)
the uncorroborated testimony of aa accom-
plice that he and two defendants had previ-
ously committed another felony by the use
or threat of violence was properly admitted
to prove the aggravating circumstance that
a crime of violence was previously commit-
ted.
Affirmed.
Dudley, J., concurred in part, dissented
in part, and filed opinion
Purtle, J., dissented and filed opinion.
lL. Homicide #351
Capital murder statute did not violate
defendants’ constitutional rights on basis
that the statutory scheme did not require
jury to consider culpability of each individu-
656 SOUTH WESTERN REPORTER, 2d SERIES
al defendant, since blame for the murder
rested with near equality on all defendants,
and safeguards existed in the system
against arbitrary imposition of the death
penalty. Ark.Stats. § 41-1501(1(a)
2. Criminal Law @=622(2)
In prosecution of four defendants for
capital murder, trial court did not abuse its
discretion in refusing to grant a separate
trial for each defendant, since defenses
were not antagonistic, and joint trial of
defendants did not result in substantial in-
justice. Rules Crim.Proc., Rule 22.3
3. Jury © 108
In prosecution of four defendants for
capital murder, trial court did not abuse its
discretion in its exclusion of two veniremen
for cause and acceptance of one venireman
based on their attitude toward the death
penalty.
4. Jury @136(6)
In prosecution of four defendants for
capital murder, trial court did not err in
limiting defendants to a total of 12 peremp-
tory challenges where no argument was
offered that for a specific reason one pro-
spective juror was objectionable to one of
the defendants, though not to the others
5. Criminal Law ¢=649(1)
In prosecution of four defendants for
capital murder, trial court did not abuse its
discretion in ordering a five-day recess be-
tween taking of testimony and the instruc-
tions and argument.
6. Criminal Law ¢=1038.1(3)
Supreme Court would decline to con-
sider defendants’ objection that it was error
for jury to find aggravating circumstance
that in commission of the capital murder,
each of the defendants knowingly created a
great risk of death to a person other than
the victim, where such point was not pre-
served by an objection to the instructions or
to the verdict forms.
7. Criminal Law ¢=1169.11
In prosecution of four defendants for
capital murder, reversible error did not oc-
cur due to introduction of evidence of other
_ ces
oD os Oo
~> *- *> -
—
~
om
an ee
CLINES v. STATE
? Cite as 656 S.W.2d 684 (Ark. 1983)
crimes and acts against two of the defend-
ants. Rules of Evid., Rule 404(b)
8. Criminal Law #=—986.6(3)
In sentencing phase of prosecution of
four defendants for capital murder, trial
court properly allowed uncorroborated testi-
mony of accomplice that he and two of the
defendants had previously committed an-
other felony by the use or threat of violence
in order to prove the aggravating circum
stance that a crime of violence was prev)
ously committed. Ark.Stats. § 41-1303
9. Criminal Law 867
for
In prosecution of four defendants
capital murder, trial court did not err in
refusing to grant a mistrial after testimony
concerning out-of-court statements of one
defendant which allegedly implicated an
other defendant
10. Criminai Law ¢=867
Objections must be timely, and mistnal
should be declared only when trial court ts
certain the trial cannot, in fairnes
5, contin-
ue
11. Searches and Seizures 3.9
Evidence was sufficient to sustain find-
ing that affidavit for search warrant of
defendant's car and apartment was proper,
and that defendant gave a lawful consent
to the search. Rules Crim.Proc., Rule 36.24;
Sup.Ct.Rules, Rule 11(f)
Marshall N. Carlisle, Fayetteville, Donald
R. Huffman, Bentonville, Priscilla Karen
Pope, Fayetteville, and Thomas J. Tucker,
Siloam Springs, for appellants.
Steve Clark, Atty. Gen. by Dennis R
Molock, Deputy Atty. Gen., Little Rock, for
appellee.
HAYS, Justice.
-These four appellants were jointly tned
and convicted of the January 8, 1981 capital
murder of Don Lehman, a Rogers house-
holder, and of the aggravated robbery of
his wife and daughter. They were sen-
tenced to death by electrocution on the
capital murder charge and to life sentences
Ata. 00vU
on the two aggravated robbery charges.
On appeal they allege a number of errors of
law and procedure as grounds for reversal
Finding no error, we affirm the convictions
and the sentences imposed
[
THE TRIAL COURT ERRED IN FIND.-
ING THE ARKANSAS CAPITAL
MURDER STATUTE CONSTITU-
TIONAL.
Appellants make a four-fold attack on
the constitutionality of the Arkansas felony
murder statute, Ark.Stat.Ann § 41
1501(1a) (Repl.1977), which provides that
capital murder occurs if a person, acting
alone or with others, commits one of several
felonies, including robbery, in the course of
which either he or an accomplice causes the
death of any person under circumstances
manifesting extreme indifference to the
value of human life. Appellants argue that
the statute is vague and overbroad; that it
denies equal protection of the law inasmuch
as there are currently twenty-three men,
but no women, on death row, that the
imposition of the death penalty is arbitrary
and capricious because the prosecuting at
torney Is given
waive the death penalty and because the
jury must return a death verdict if they
find aggravating circumstances outweigh
mitigating circumstances; and finally that
our statutory scheme does not require the
jury to consider the culpability of each indi-
vidual defendant.
discretionary power
The vagueness argument has been raised
and answered more than once. In Crom-
well v. State, 269 Ark. 104, 598 S.W.2d 733
(1980), we pointed out that in the definition
of criminal offenses some generalization is
both unavoidable and desirable so that pros-
ecutors and juries may have leeway to
lighten the punishments that might be im-
posed for conduct that falls within overlap-
ping offenses. (See Cromwell at p. 107, 598
S.W.2d 733).
The claim that the equal protection clause
of the constitution is offended because men
are given the death penalty disproportion-
686 Ark.
ately to women is raised initially on appeal
, 2 ' " Ar 4
and, beyond that, upported b
alan
Wi ¢ ipTe ‘
tatulory
rf f
ath the 4 iva ng
f jtweignh milif f
: ‘ (x ts } ;
'
| r a ,
'
f
va
, f ;
; u
Vi
f W 1 A
4) '
|
‘
4 f
i stuts .
; 7 f aif
‘ ; rm t i f
j
’ ret
: . ;
é
¥ ta i t f
1921
(1351 I that of
wT} ; ; ‘
l f
' in seek +} ant °
trary al u Ox dé
the § re Cr t f the Ur
,
(Bordenkirct v. Mayes, 434 |
f :
8 (it 6 f { ] A 1 &
Af
i i} M \ ? I A
Ul ‘ '
o.W.2d 4 (1 it 1 i
review
{1] T} ‘ ‘ t ¢ tatut
/ sat ytyir
dor not require tne jury t
wich sh deaf lant's
weigh each delendants role in
werveng ¢ apital murder, so as to
individual culpabilit
on procedural grounds, as the
was not clearly raised
ly
objection to the capital
the appellants
murder ir
tender ti
court an instruction
y of the law pgs
Ark. 388, 602 S.W.2,
consistent
Ev
we ch
hose to consider the mer
argument
Appellants cite Enmund v. Fl
US 102 5.Ct 68, 73 L.I
.
(1982). There, the Supreme Court
y
be] WwW, Le. We
)
Mw
pument
656 SOUTH WESTERN REPORTER, 2d SERIES
for one who had participated in a robbery
Goring which murders were committ ted, but
was | . preseite at the Kcllings an
tend that the victims be killed
that
the record supported no mo
no moré
than an inference that Enmund, the peti
ner, was the person waiting in a car ur
t} ene of a robbery. Two other x
gone to the rear of a nearby farmhous
: etext of having car trouble. coax.
victim outside to rob him When tr
tim called for help his wife came out and
ne of the robbers The two victin
were killed in a gun battle and the r ‘
+} 21 sAneay
with their money to a waitir
ig on the Eighth Amendment. th:
that
that a robbery
irt held
one who does not inter
victim be killed, is n
present when the killing occurs, and doe
not contemplate that lethal force wili b
sed in carrying out the robbery, is r
subject to the death
ry had found Enmund and a co-de
penalty. A Florida
guilty and recommended the death t
for both defendants, which the trial court
d. Acknowledging
ny direct evidence that Enmund wa
present at the killings
of Florida affirmed,
the Supreme Court
explaining that the
interaction of the felony murder rule and
the law of principals combine to make
felon generally responsible for the lethal
acts of his co-felons. As it did with death
as a penalty for rape (see Coker v. Georgia,
3 U.S. 584, 97 S.Ct 2861, §3 L.Ed.2d 982
peo the court reasoned that an over
whelming number of states and of Ameri
would repudiate the death penal
ty for crimes such as Enmund’s
can juries
Significant comments arc in the opinion,
first, that there was no evidence that En
mund had any intention of participating in,
or facilitating, a murder and, second, the
court emphasized that “[i]t would be very
different if the likelihood of a killing in the
course of a robbery were so substantial that
one should share the blame for the killing if
he somehow participated in the felony.”
a number of distinguishing factors
immediately appear. At about 9:45
Here,
p.m.,
after he and his family had retired for the
CLINES v. STATE
Cite as 656 S.W.2d 684 (Ark 1983)
evening, Don Lehman answered a knock at
his front door. He asked who was there
and someone “David.” His
daughter, Vickie, also responding to the
knocking, said as her father unlocked the
door the four appellants, masked and arm
ed, burst into the room with such force that
her father was knocked backward off his
answered
feet and the doorknob of the front door was
jammed through a cioset door behind
or three of the appellants struggled with
her father toward the bedroom, where Mr
Lehman was wrestled onto the bed and a
fatal shot to the head and one to the abdo
men were delivered
Two
There was direct evidence from more
than one source that appellants had dis
cussed among themselves the necessity of
murder if they met resistance; at least two
of the appellants were armed with pistols,
perhaps three of them, and the fourth with
a lethal weapon fashioned
chain. All four wore ski masks and all fou
burst into the Lehman home when the latch
was opened. The proceeds, some $1,200,
were presumably divided to the appellants’
liking. It must be noted, too, that Lehman
was given no opportunity to yield, he was
immediately attacked by appellants, sus-
taining blows to his head and face from the
metal chain and a mortal wound to the
chest before reaching the bedroom.
from a metal
Although perhaps only two of the appel-
lants were in the bedroom when Mr. Leh-
raan was killed, it cannot be ignored that
when a group of individuals agree to exe-
cute a criminal enterprise involving the
forced, nighttime entry of a private dwell-
ing, known to be occupied, wearing masks
and armed with pistols, intent on robbery, it
follows that murder is a most probable con-
sequence. We think the likelihood of a
homicide under the circumstances is so sub-
stantial as to bring this case clearly within
the quoted exception of the Enmund deci-
sion, on those circumstances alone. Added
to that is the evidence that murder was
plainly contemplated by the appellants.
We conclude the blame for Don Lehman's
murder rests with near equality on all of
the appellants
656 S$. W2Id6—16
ae
Ark. 687
As a final response to this phase of the
argument, we point out that there are add-
ed safeguards in our system against the
arbitrary imposition of the death penalty.
In Collins v. State, 261 Ark. 195, 548 S.W.2d
106 (1977), we noted the power of the trial
court to reduce a death sentence to life
imprisonment and in that opinion we com-
m’ ‘ed this court to a policy of comparative
review, by examining the death penalty in
every case on a comparable basis. We have
demonstrated our readiness to modify the
death sentence where it is imposed capri-
ciously (see Sumlin v. State, 273 Ark. 185,
617 S.W.2d 372 (1981)), or where the culpa-
bility of co-felons is disproportionate (see
Henry v. State, 278 Ark. 478, 647 S.W.2d
419 (1983) ], or where death is unduly harsh
under the circumstances [Neal v. State, 274
Ark. 217, 623 S.W.2d 191 (1981) and Giles v
State, 261 Ark. 413, 549 S.W.2d 479 (1977) }
not overlooking the suggestion
that Michael Orndorff's participation in the
crime was half-hearted; that he may have
asked to be taken home as the appellants
were leaving the Baker residence; and that
after the shooting he disclaimed any wish to
be involved in a murder. But the jury
unanimously rejected as a mitigating factor
that any appellant played a minor role.
Too, Orndorff's request to be taken home
may have been due to Steve Baker’s having
declined to go along, rather than because of
any compunctions over the undertaking.
And his belated comment that he didn’t
want to be a part of a murder must be
judged from the standpoint that it came
after the fact and against the uncontradict-
ed proof that he burst into the Lehman
home along with the others, masked and
intent on robbing, killing, if need be, any-
one who resisted. We need not repeat what
we have already said about the shared cul-
pability for Don Lehman's death under the
circumstances of this case. To selectively
exclude this appellant from the penalty im-
posed by the jury for conduct readily as-
sumed by all of them would be to arbitrari-
ly excuse him from the predictable conse-
quences of his own actions, consequences
which the proof showed he expressly recog-
nized
We ar
688 Ark.
IT.
THE TRIAL COURT ERRED IN RE-
FUSING TQ GRANT A SEPARATE
TRIAL FOR EACH DEFENDANT.
(2] Prior to the adoption of the Arkan-
sas Rules of Criminal Procedure in 1976,
defendants in capital cases were entitled to
severance as a matter of right pursuant to
Ark.Stat.Ann. § 43-1802 (Repl.1977)
However, A.R.Cr.P. Rule 22.3 superseded
§ 43-1802 and gives discretion to the trial
court to try the defendants jointly in capital
cases. Hallman and Martin v. State, 264
Ark. 900, 575 S.W.2d 688 (1979).
Appellants submit that our recent deci-
sion in McDaniel and Gookin v. State, 278
Ark. 631, 648 S.W.2d 57 (1983), req tires a
reversal of this case, but the argument can-
not be sustained. There are fundamental
differences between the two cases and in
McDaniel we did not disturb the rule that
severance of defendants rests within the
sound discretion of the trial court. We
pointed out that such discretion is broad,
though to be exercised judiciously in capital
cases, with careful scrutiny to be given to a
number of elements which could affect the
fairness of the trial. (See McDaniel and
Gookin v. State, page 638, 648 S.W.2d 57).
In McDaniel, the defenses of the defendants
were utterly antagonistic, each defendant
claiming the murder was committed unex-
pectedly by the other. No such similarity
exists here. It is argued that the defenses
in this case are antagonistic, but that claim
cannet be supported. We find no effort
among the defendants to point to another
defendant as the murderer; the proof on
behalf of each defendant (only one of whom
testified) was aimed for the most part at
proving he was not in the bedroom, where
the murder occurred. These defenses are
not in the least antagonistic in the same
sense as in McDaniel.
The final and essential difference is that
the McDaniel case had the added element
that where culpability was distinctly dispro-
portionate, the jury was admittedly unable
to decide which of the two defendants com-
mitted a heinous act, resulting in two de-
fendants being convicted of a capital crime
656 SOUTH WESTERN REPORTER, 2d SERIES
for which only one may have been guilty.
Whereas here, there is substantia] evidence,
indeed overwhelming evidence, that all four
appellants planned and executed a robbery,
expressly deliberating on murder as a possi-
ble consequence. Nothing in this record
suggests that for these appellants to be
tried jointly resulted in substantial injustice
and we find no abuse of discretion in the
trial court’s refusal to grant separate trials.
IT]
‘
THE USE OF A DEATH QUALIFIED
JURY IN THE INSTANT CASE DE-
NIED THE APPELLANTS AN IM-
PARTIAL JURY. ON THE ISSUES
OF GUILT AND PUNISHMENT AS
REQUIRED BY THE SIXTH AND
FOURTEENTH AMENDMENTS TO
THE CONSTITUTION
The gist of this argument is that when
those members of a jury panel holding reli-
gious or conscientious scruples against capi-
tal punishment are eliminated, the cross-
section of the population which remains is
not impartial and unbiased on the issues of
guilt and punishment. They are, it is
urged, favorable to the prosecution and,
hence, guilt prone. The argument is not
new and needs no reiteration. It has been
considered and rejected here as well as in
the Supreme Court of the United States.
Witherspoon v. Illinois, 391 U.S. 510, 88
S.Ct. 1770, 20 L.Ed.2d 776 (1968); Miller v.
State, 269 Ark. 341, 605 S.W.2d 430 (1980).
IV.
THE JURY SELECTED IN THE IN-
STANT CASE WAS NOT SELECTED
IN ACCORDANCE WITH THE
STANDARD PRESCRIBED IN
WITHERSPOON AND HOBBS.
(3] The Witherspoon rule, as interpreted
in Hobhs v. State, 273 Ark. 125, 617 S.W.2d
347 (1981) permits the exclusion of persons
as prospective jurors only if they irrevoca-
bly oppose or favor the death penalty re-
gardless of the evidence. Appellants insist
that two of the veniremen, Mrs. Kaiser and
Mrs. Dick should not have been excused for
cause because of their uncertainty as to
capital punishment and Mr. Harley Wood,
k3
th
a
Ramenremers 500:
- ———- —_———— a
; CLINES v. STATE
Ark. 689
Cite as 656 S.W.2d 684 (Ark. 1983)
* who showed some preference for it, should
have been excused for cause.
We have examined the questions asked in
voir dire and the responses given typi
cally, no clear conclusion can be drawn
The answers are tentative or equivocal, and
the trial court is in a better position
we are to gauge the attitude of the venire-
and,
than
men and decide whether each will weigh
the evidence and, if appropmate, will con
sider all the penalties provided by law. W
cannot say his discretion was used wrongly
¢
in any instance complained of. Hulsey \
State, 268 Ark. 312, 595 $.W.2d 934 (1980)
McCree v. State, 266 Ark. 465, 585 S.W.2d
938 (1979)
V
THE TRIAL COURT ER
ING THE APPE LLANTS TO A
TAL OF TWE LVE PERE!
CHALLENGES.
(4] The trial court limited the four de
fendants to a total of twelve peremptory
challenges, which they claim is error. We
have held in three cases that where defend-
ants are tried jointly each defendant is not
entitled to the full allotment of peremptory
challenges, but a challenge by one is a chal
lenge by all. Williams v. State, 267 Ark
527, 593 S.W.2d 8 (1979); Lewis v. State,
220 Ark. 914, 251 S.W.2d 490 (1952);
Hearne v. State, 121 Ark. 460, 181 S.W.2d
291 (1915).
No absolute right to peremptory chal-
lenges exists under the oe a see
Stilson v. United States, 250 U.S , 40
S.Ct. 28, 63 L.Ed. 1154 (1919) Pore we see no
prejudice resulting from the position we
have taken in the earlier decisions. The
right to challenge a prospective juror on
peremptory grounds may be exercised sim-
ply because counsel has reservations that
certain groups might be skeptical of its
theory of the case; it is a very general
response and such criteria as occupation,
education, age, residence, social back-
ground, sex, and even facial expression,
may influence its use, depending on the
nature of the case. But ordinarily these
considerations are applicable to the defend-
ants as a whole and not individually.
Here,
Alo
it appears the peremptory challenges were
exercised collectively by the defense, as
might be expected, and no aga is
offered that for a specific
tive juror was objectionable to one
reason one f y
the defendants, though not to the othe
We adhere to our holding in Willian
State, supra
CALLING A FIVE DAY RE A
CLOSE OF TESTIMO? N fp
ABUSE OF THE COURT'S |
TION
(5) Appellants allege that ,
abuse of discretion for the tria t
order a five Gay rece as the tral wv
nearing a closé The recess oc é
dently, between the taking of test
and the instructions and arguments, &
cause of the trial judge's scheduled part
pation in a meeting of the Arkansa Jud
cial Council. The trial seems to have
menced well in advance of the meeting,
moved at a slower pace ree expected
Such matters as recesses and sequestrat
of the jury are not amenable to inflexible
rules and must be governed to a
extent by the exigencies of the day and the
calendar. We see no reason why it «
work to the appellants’ greater prejudice to
from Wednesday to Monday
recess
from Friday to Monday, as often occurs 11
trials. We find no abuse of discreti
Vil
IT WAS ERROR FOR THE JURY TO
FIND THE AGGRAVATING CIR
CUMSTANCE THAT, “IN THE COM
MISSION OF THE CAPITAL MI JR-
DER, EACH OF THE APPELLANTS
KNOWINGLY CREATED A GREAT
RISK OF DEATH TO A PERS(
OTHER THAN THE VICTIM.”
(6] Citing Williams v 274 Ark. 9,
621 S.W.2d 686 (1981), ellants contend
that because Vickie and V
State,
rginia
Lehman were victims of the underlying fe!
&
ony of aggravated robbery to the capital
murder Don Lehman, the evidence w
not warrant a finding as an aggravating
circumstance that appellants knowingly cre
vvy aes tee On, ee
ated a great risk of death to a person other
than the victim. Appellants assert that
Williams v. State, supports the argument,
but fail to explain how. The holding there
has no particular relevance to this case.
Williams’ death sentence was reduced be
f the ‘
cause one aggravating circumstances
found by the jury, commission of a prior
felony, did not involve violence as required
by Ark.Stat.Anr § 41-1303 (Repl.1977)
The deci that where a jury
finds no mitigating rcumstances and three
agpravating circumstance ne of which is
erroneno “A 2 the error a
narmiess simply because two agpravating
circumstance re is we are not in a
position t peculats i u what a jury
would do on a finding of two aggravating
factors instead
The app t this point wa
not pre ? r '
structior t r [orr Without
implying that t t therwise mento
rious, we ¢ for tl ack
of pro eT
IT WAS ERI] FOR THE TRIAL
COURT 17 PERMIT THE INTRO
DUCTION OF EVIDENCE OF OTH
ER CRIMI AND ACTS AGAINST
APPELLANT LINES AND ORN-
DORF!
(7] Mrs. Tammy Baker was called by
the state to prove that the appellants had
been at her home the evening of the Leh
man murder, drinking beer and playing
cards with her husband, Steve Baker. She
said when she answered the door the four
appellants were there, that one was wear-
ing a ski mask and stuck a gun in her face
She was ordered to “stick ‘em up’,” before
realizing that a joke was being played. The
four stayed until about 9:30 p.m. and she
overheard discussions involving the robbery
of someone who lived nearby
On cross-examination she was asked by
counsel for one of the defendants, Clines,
whether her husband was then facing
charges of roblx any committed the night be
fore the Lehman crime. She said he was
and was then asked 1 if any of the appellants
were involved and she said Orndorff and
Clines were. Orndorff's objections to this
i Sah Ry oN Ree
line of questioning were overruled and
when Steve Baker followed his wife to the
stand the state was permitted to go into the
incident in greater detail.
Appellants Clines and Orndorff
that the admission of this evidence. a
as a statement by Billy Weaver that Darre
Richley told him he was the one wh
Don Lehman, that he had bx
stealing and robbing te
t admitting evider r
Ling Allor t; A
of W | 804 1904)
if Rule 404(b), Uniform R
and the Baker testimony t 4
ined light of the fact that
awyer who pointedly asked th
that broughf€ the evidence into t
U ‘ }
Winether the objec’ was
and Steve Baker's te
that Baker was charged
duct is speculation, but we are not per
suaded that reversible error occurred. It
entirely possible that the evidence
have been received by the trial court
Rule 404(b) had it be é f {
[ ir px e of proving ider Lit y. pp rt
intent, preparation, or absenc«
Certainly the evidence of a robbery
ng similar methods committed in c
wit} the offense on ty
th + tr, l acre
Value ine prejuciciai asp
ous that we can say th
IX
IT WAS ERROR FOR THE COURT
ALLOW THE JURY, IN THE SE
TENCING PHASE, TO FIND APPEL
LANTS CLINES AND ORNDOR FF
HAD “PREVIOUSLY COMMITTEI
ANOTHER FELONY, AN ELEMENT
OF WHICH WAS THE USE OR
THREAT OF VIOLENCE TO AN
OTHER PERSON OR CREATING A
SUBSTANTIAL RISK OF DEATH OR
SERIOUS PHYSICAL INJURY TO
NOTHER PERSON” ON THE UN
CORROBORATED TESTIMONY Of]
AN ACCOMPLICE.
{8] After the appellants’ guilt had been
established and the penalty phase of the
TY
irr
A
A7
ULINES Vv. SIALEC
Cite as 656 S.W.2d 684 (Ark 1983)
trial was in progress the state was permit-
ted to prove one of the seven aggravating
circumstances listed in Ark.Stat.Ann. § 41-
1303 (Repl.1977) by the testimony of Steve
Baker that ne, Clines and Orndorff had
. . tad 5 har o 1 t
previously committed another felony by the
use or tnreat f violence Bake said «tne
the f them rahhad |} rey }} » T
tnree ol em rooved barry UAl 1
+ , n Te 2
re a f [ Jar | ;
A 4 art tha
, ,
wa ¢ the a f Y
t — os t até
A ’ A
r : n |
’ > . ) n ’ tr >
r nm tr f r 2
4)" ‘ ¥ a
+> ¢ at f ‘
A té + té ’ rT ny Na
tex ) 4 t Air tnat ¢
T . ; } .
if ars a é
A ’
P
eai ; i
g 4 : th nr ,
: ' } ;
f was previ vy comn
Vy 1 tha M le r State . ? er
that the ; e l\POTE of prool r
1€f i pro
1 + « ‘ rn finding hat 7
] re Ai 2 LINdail tha Pt i
ting r tis at gy cir tar ‘
w i be required to susta a ‘
that cir tance wa ; ) ts
A
MM , Ark af f > YY 4
t
WV ¢ ea af there Ww é j
. af
ipprava ga
4
now ( il t
> » + ’
at f
rik, i I
mT)
ALiN\y 3 \ i
U7 . . dnl , desley nth «
We ne not delay unduly with the issue
raised by this argument, as the admission of
the evidence itself was of little or no conse
quence. An investigating officer testified
that he took an impression of a foot print
from a flower bed of the Lehman
that there was a high degree of probability
home;
that it matched Hoyt Clines’ tennis shoe,
however, he said it was impossible to be
absolutely certain. But Clines’ presence at
the scene in company with the other appel
lants was amply evidenced by other proof
and no objection to this evidence was of-
fered until the tral, as required by AR
Cr.P. Rule 16.2 P
XI.
THE TRIAL COURT ERRED IN NOT
GRANTING A MISTRIAL FOR TES-
TIMONY CONCERNING IMPLICAT-
ING OUT-OF-COURT STATE
MENTS OF A CO-DEFENDANT
APPELLANT CLINE
9 LQ} Freddi Barker wa a iC tne
ate pr e tha yi f ame t
é a da tw ai Le ur me
ge the Let ar far ask } he f
g¢ the guns taken from the Lehma
. t} murdé and told him four «
t went to the do wilh SKi MasKS and
ted on i that » of the four started
ng Le! an with a motor chain Delt
ade a break |! the bedroom “and
guy f k off and kept hitting
He uid he ¢ tr bed and that
vy) shot | and said the guy kept
for a gun above the bed and he sai
put the gun up to his head and shot
him - The aquectionin contin ed 2a ienot
ne yuesvIONni ) inved at ienegrn,
"ead
th no other reference to the removal of a
k. and not until the state fully complet
é t te pr: t wa a ( ject
i At that point insel { Hoyt
1 f ; | » th ‘
move a | al on the ground
e E
+} ‘ the re wa prev testimony th at t
4 e
was Clines who had re ved | ask and
— j f .
hence Clines was deprived of his right t
, ane
confront opposing vitnesses inis argu
lacks merit, as objections must be
timely, Earl v. State, 272 Ark. 5, 612 S.W.2d
98 (1981), and mistrials should be declared
ment
»!
;
only when the trial court is certain the trial
cannot, in fairne continue Floyd vv
‘tate, 278 Ark. 85, 643 S.W.2d 555 (1982)
THE EVIDENCE OBTAINED FROM THE
SEARCH OF APPELLANT RICH
LEY’'S CAR AND APARTMEN
SHOULD HAVE BEEN _ SUP-
PRESSED, BECAUSE THE SEARCH
WARRANT WAS NOT BASED ON
PROBABLE CAUSE AND THE CON-
SENT TO SEARCH GIVEN BY RICH-
LEY WAS NOT GIVEN VOLUNTAR
ILY
(11] Appellant Richley urges that the
affidavit for the search warrant was defi-
692 Ark.
cient in that no underlying circumstances
for the affiant’s conclusions were stated.
He also argues that his consent was not
voluntary. However, the search warrant
and affidavit are not abstracted, as re-
quired by our rules, and the trial court
found the appellant did give a lawful con-
sent to the search. An independent deter-
mination of that issue has been made on
review and we are satisfied the trial court's
finding was entirely consistent with the evi
dence, particularly in view of Richley’s tes
timony
Finally, under A.R.Cr.P. Rule 36.24, and
our rule 11(f), we find the treatment of
other objections of appellants which were
overruled, as well as rulings adverse to ap-
pellants, do not constitute reversible error
On a comparative basis we are not disposed
to say the death penalty in this case is so
wantonly, arbitrarily or freakishly imposed,
or so excessive in relation to the crime, that
we are compelled to modify the verdicts
There was sufficient evidence to support
the findings of aggravating circumstances
which were not outweighed by mitigating
circumstances. We are satisfied the jury's
verdict was relatively free of passion or
prejudice. Accordingly, the judgments and
sentences are affirmed
DUDLEY, J., concurs in part and dissents
in part.
PURTLE, J
| nf
, aGissen
DUDLEY, Justice, concurring in part,
dissenting in part
The State adduced overwhelming evi-
dence that the four appellants were guilty
of jointly committing a capital murder and
two robberies. Their individual defenses
were not mutually antagonistic. Although
‘the charges were joined and the appellants
were jointly tried, the appellants as well as
the State were afforded a just and fair
proceeding through the accusatorial phase
of the bifurcated capital murder trial.
However, that holding does not mandate
the conclusion that the due process protec-
tions were sufficiently afforded at the joint
Ao
656 SOUTH WESTERN REPORTER, 2d SERIES
sentencing phase of the capital murder tri-
al. The two phases of the bifurcated trial!
serve vastly differing purposes. The es-
sence of the accusatorial phase is the formal
adversary presentation of evidence relative
to guilt. The adversary concept places the
State and the accused on an equal footing
and so, in fairness to the State, joint trials
are oftentimes required through this stage
Markedly different, the essence of the sen-
tencing phase is the search for relevant
information to choose which of the two
penalties, life without parole or death, is
appropriate for the person already found
guilty. This second phase search for infor-
mation is not based upon the same adver-
sary concept. Our applicable statute pro
vides that mitigating circumstances may be
presented regardless of their admissibility
under the rules of evidence while aggravat-
ing circumstances may be presented only
when they are admissible under the rules of
Ark.StatAnn. § 41-1301(4)
(Repl.1977). The underlying reason for this
is that the penalty ef death is qualitatively
different fror ‘ther punishments.
When the de enalty is sought, justice
demands individual, not joint, sentencing.
[t is for this sarne reason that mandatory
death sentences for particular crimes have
been declared unconstitutional. Gregg v.
Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49
L.Ed.2d 859 (1976). It is only after a struc-
tured exercise of discretion which guaran-
tees individualized sentencing that the
death sentence may be imposed. Proffitt v.
Florida, 428 U.S. 242, 96 S.Ct. 2960, 49
L.Ed.2d 913 (1976); Woodson v. North Car-
olina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d
944 (1976). Accordingly, after a finding of
guilty of capital murder, juries in this State
may impose a sentence of death only after
considering aggravating and mitigating cir-
cumstances. Ark.StatAnn. §§ 41-1301 &
1302 (Repl.1977). Aggravating circum-
stances are principally related to the per-
sonal history of the individual defendant
and not to the nature of the crime commit-
ted. Ark.Stat.Ann. § 41-1303 (Repl.1977).
Mitigating circumstances are totally related
to the personal background of the defend-
evidence
te
1
— a ae
Oo porno .
ed
es
oO
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eke CN
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.
ant. Id. Individualized sentencing re-
quires structured detailed consideration of
the personal history of the guilty person
before the death
4
sentence may be impose
Any impediment to that individualized ex
| ae of discretion is violative of the pr
tection of due proce
The clear issue whether the joint
PJecrsing proc jure used in th ase all
each appellant the structured and deta
consideratior f hi ndaividual dackegr
which is required before the sentence
| ie may be impose re e ca
doubt that when the jury was sent out f
the courtroor to fix the pul hment f
equally guilty persons at one sitting
that after fixing the penalty for the first
three at death, there wa
to give the fourth a lesser sentence
reluctance al
a fourth death penalty for the part
crime regardless of the guilty
sonal history. This impediment to the ir
vidual exercise of discretion violate
' reece sa the rohinit r =
process and (tne proniodi I aga a
trary death sentences
Such a scenario fr Ly well have y irre
in the case at bar. In the sentencing phase
ppellant Clines was shown to have plead
Be'o in 1978 to burglary, a non-violent
crime. No other convictions or feloni
actions were shown to have been c
by him during this stage of the trial. The
only other proof of a prior bad action, for
which there was no conviction, came during
the accusatorial phase of the trial when ar
accomplice gave uncorroborated testim pny
Yet, he,
on a collateral matter.
given the death sentence
For this reason I dissent from that
of the well written majority opini
affirms the joint proceeding to fix the pun
ishments at death. I concur in
part of the opinion affirming the life sen
tences for the aggravated robberie
PURTLE, Justice, dissenting
I believe at least one of the appellants,
Michael Orndorff, was prejudiced by the
trial court's refusal to give him a separate
CLINES v. STATE
Cite as 656 S.W.2d 684 (Ark 1983)
Ark. 693
trial. To grant him a separate trial would
have in no way selectively excluded him
from culpability in regard to the crime for
which he was convicted. In fact it seem:
me that holding him to trial
murderers practically insured his convict
Guilt by association is a common |
error and in this case have j
[ ayed a big part in the {
who meted out ident
form penalties to all four appe
cart '
When each of the appellants atter
place himself outside the bedr
decedent was shot the result was that «
defendant put before the san
fense inconsistent with the other defer
ants’ defenses
The majority opinion seems t
type of guilt from some of the app
failure to testify. If the tra rt did t
we would vote unanimously to rever
The trial court should have pr
ed a severance
remand
f _ 1
A total of twelve peremptory aller
were allowed the four defendant {
them did not get to exercise a sing
emptory challenge Had the be tr
separately each would have bee 4
twelve challenge Therefore, these ay
lants were denied rights which are exter
ed to others tried separately on ident
charges. There is nothing to prevent a tr
judge from allowing more than twelve p<
emptory challenges if fairness and
tiality demand it
Furthermore, it
allow evidence of
pellants had not
this
phase of the
|
was clearly prejudicial
crimes for which the ap
been convicted eve
though was during the sentencing
What hap
pened to the old law that held every ind
bifurcated trial
vidual is presumed innocent? Soon it wil
be legal for the state to charge an accused
of spurious crimes in order to help secure 2
For
appellants were
conviction all we know none of the
or will ever be found t
have committed the alleged crime wi
was used during the sentencing phase
I am still of the opinion that a death
4
qualified jury is not comprised of a cro:
J
:
694 Ark.
section of ihe population as required by the
Constitutions of Arkansas and the United
States. It appears to me that there is a
misunderstanding of the Witherspoon doc-
trine when prospective jurors are excluded
because of religious or moral scruples
against the death penalty. Perhaps some
member or members of this very court have
religious or moral scruples against the
death sentence, yet we affirm such sen
tences if we find no reversible error. One
who does not believe in the death sentence
may honestly and conscientiously vote for
such a sentence in upholding the law. For
In re ARKANSAS SUPREME COURT
BOARD OF CERTIFIED COURT
REPORTER EXAMINERS.
No. 82-283.
As Amended Dec. 19, 1983
Voluntary nonprofit association of
court reporters filed petition for adoption of
rule providing for certification of court re-
porters and the establishment of an exam
iners’ board. The Supreme Court held that
board governing certification of court re
porters would be established and rule
adopted providing for such certification
Ordered accordingly.
Regulations adopted, Ark., 658 S.W2d
366.
lL. Courts ¢=57
Board governing certification of court
reporters would be established and rule
adopted providing for such certification.
Const. Art. 7, § 4.
656 SOUTH WESTERN REPORTER, 2d SERIES
2. Courts #78
Supreme Court has inherent rule-mak-
ing authority under provision of State Con-
stitution conferring upon Supreme Court
superintending control over all inferior
courts of law or equity. Const. Art 7, § 4
Henry C. Morris, Judge of the Municipal
Court of DeQueen, Sevier County, De
Queen. Joan Morgan Porter, President of
e Arkansas Court Reporters ss'n by
James B. Blair, Atty., Springdale, David
Burnett, Circuit Judge, Osceola, Donn Mix-
Jonesboro, Gill, Skokos, Simpson, Bu-
ford & Owen, P.A. by Theodore C. Skokos,
Little Rock and Sigrid J. Cox, Court Re
porter, DeQueen, amici curnae
PER CURIAM
On December 13, 1982, the Arkansas
court Reporters Association, a voluntary
and non-profit association of court reporters
in Arkansas, filed a petition asking the Su-
preme Court to adopt a rule providing for
the certification of court reporters and the
establishment of an Examiners’ Board
The petition stated that standards were
needed to protect the quality, accuracy, and
professionalism of court reporting, that is,
r
persons who take depositions and other
matters within the purview of court report-
ing which may be admitted into evidence
under the laws of Arkansas.
{1] On January 10, 1983, the Court ac-
cepted the petition and requested all inter-
ested parties to file briefs by May 1, 1983.
After fully considering the various respons-
es we conclude that a board governing the
certification of court reporters should be
established.
(2) Article 7, section 4 of the Arkansas
Constitution confers upon this Court super-
intending control over all inferior courts of
law or equity. This Court has inherent rule
making authority under this provision of
the Constitution. In Re Arkansas Criminal
Code Revision Commission, ex parte, 259
Ark. 863, 530 S.W.2d 672 (1975). . Therefore,
the following Rule is adopted providing for
. Add
SPREE PRE
the certi
State of
Section ji
A. Th
er
as
Section
ings.
At wu
Boar:
mem
tary.
year
The
treas
Rock
“a7 BS
te
Spb t 7
. RQ * By .e,
7 m
<
4% Fer e-uep
Lee, "4% Nese Vuh
>.
* sem
* me Peetediiotes Loednee ts
. : \ %*
co
-
~
-
CLINES y. STATE
Cite as 669 S.W.2d 843 (Ark. 1984)
The pioneers of this state no
doubt Survived in less comfortable circum-
Stances than they desired
this father would
we are to believe it is in the best interest of
a child to transplant him into what we
Perceive to be a
we open the Fate to the highest bidder.
Children should
It is MY Opinion that the
should have done more to
Social Services
was two years old
the court had taken him from his Parents
entitled to the love and
4 normal home. |
es determine the child Was not loved or that
the parents were unfit? By allowing the
Parents to visit with their child under close
Scrutiny and apparently Spasmodically. [¢
is obvious from the record that the foster
mother was as Unpredictable as the natural
under close supervi-
I agree with appellant
to reunite this child and Parents as
required by Ark. Stat Ann § 56-128(F)
(Supp 1983) were not Provided in this case
A.B. v, Arkansas Social Services, 273 Ark.
261, 620 S.W.2d 27] (1981).
I would not grant the PeQtion without
Proof of attempts by
the Social Services. A my opinion the
the father, is not
ex-
appeal, Petitioners
ignorant is not by itself rounds for perma-
their natura] relation.
It seems to me there must be more
than this record reveals before a child and
his parents are separated forever
9
CCT mumace sYSlim)>
~ums)
282 Ark $4]
Hoyt Franklin CLINES, James William
Holmes, Darryl v. Richley and Mi-
chael Ray Orndorff, Petitioners,
Vv
STATE of Arkansas,
No. CR 82-54.
Respondent.
Supreme Court of Arkansas
May 29, 1984
Petitioners Were
cuit Court, Benton
der and aggravated
sel.
Petition denied.
Dudley and Hollingsworth, JJ., would
grant.
Be Criminal Law =998(3)
By not raising issue at trial and on
Seeking post conviction
Penn ae &
Pon. e een
——— ee
884 Ark.
relief waived claim that rule which gave
discretion to trial court to try defendants
jointly in capital case unconstitutionally re
pealed initiated act which entitled codefend
ants in capital cases to separate trials as
matter of right. Rules Crim.Proc., Rule
22.1 et seq.; Const.Amend. No. 7
2. Criminal Law <998(3)
No issue, even if it presents question
of constitutional dimension, 1s preserved
beyond direct appeal unless it is of such
fundamental nature that judgment would
be rendered void.
3. Criminal Law €998(6)
Lack of jurisdiction is sufficient to void
judgment.
4. Criminal Law 161
Conviction obtained in violation of pr
visions against double jeopardy is void
U.S.C.A. Const.Amend. 5
5. Criminal Law €998(13)
Trial court's denial of petitioners’ mo
tion for severance on grounds advanced at
trial and considered on appeal was unavail
able to petitioners as basis for postconvic
tion relief. Rules Crim.Proc., Rule 37.1 et
seq.
6. Criminal Law <998(3)
Challenges which are not made at trial
or on appeal in a court with controlling
rules of procedure are waived for purposes
of postconviction proceeding
7. Criminal Law <=998(5)
Postconviction relief is limited to
grounds sufficient to void judgment or
open it to collateral attack.
8. Criminal Law @641.13(1)
To establish ineffective assistance of
counsel, petitioner must first show that he
was prejudiced by conduct of counsel.
9. Criminal Law <—998(13)
Petitioners failed to establish ineffec-
tive assistance of counsel for failure to
raise severance issue on grounds that rule
unconstitutionally repealed initiated act
which entitled codefendants in capital cases
to separate trials as a matter of right,
G2.
669 SOUTH WESTERN REPORTER, 2d SERIES
where petitioners failed to demonstrate on
appeal that jury was unable to fairly distin
guish between them in guilt and penalty
phase of trial and death penalty was not
capriciously or arbitrarily imposed
10. Criminal Law €998(3)
Allegations that prosecutor failed to
comply with discovery provisions and that
capital murder statute was unconstitutional
in that individual culpability was not taken
into account, and that it was improper to
place burden on codefendant to prove that
he did not himself commit murder could
have been raised at trial and on appeal on
grounds stated in postconviction petition,
and were not sufficient to render judgment
void, and therefore, were waived
Marshall N
Holmes
Matthew Horan, Fayetteville, for Rich
ley
Priscilla Karen Pope,
Orndorff
Charles E
Clines
Carlisle, Fayetteville, for
Fayetteville, for
Hanks, Fayetteville, for
Steve Clark, Atty. Gen. by Alice Ann
Burns, Deputy Atty. Gen., Little Rock, for
appellee
PER CURIAM
The four petitioners were jointly tried
and found guilty of the capital murder of
Don Lehman and the aggravated robbery
of his wife and daughter. We affirmed.
Clines, Holmes, Richley and Orndorff v.
State, 280 Ark. 77, 656 S.W.2d 684 (1983),
cert. denied, — US. ——, 104 S.Ct. 1328,
19 LEd.2d 723 (1984). The petitioners
have now filed a petition for relief pursu-
ant to our postconviction rule, Rule 37.
Petitioners first allege that A.R.Cr.P.
Rule 22 which gives discretion to the trial
court to try defendants jointly in a capital
case unconstitutionally repealed Initiated
Act I of 1937. Act I entitled co-defendants
in capital cases to separate trials as a mat-
ter of right. Rule 22 was promulgated
pursuant to Act 470 of 1971, which was
~a-
yr fm sffa> -
™—
TK
Pee
¥
LP MOA eens *
ee So ee a
on
5 5 & =|-b ee &
em ma ES aS a = = oe ‘-— os @
_
L
os
~
ay
os
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~
"FTF @
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Yt a
ne
a
CLINES v. STATE Ark. 885
Cite as 669 S.W2d 883 (Ark. 1984)
adopted unanimously by the General As-
sembly and “in harmony with the Court's
constitutional superintending control over
all trial courts.” Jn Re Arkansas Crimi-
nal Code Revision Commission, 259 Ark.
863, 530 S.W.2d 672 (1975). Petitioners
contend that counsel was ineffective in fail-
ing to raise the severance issue on this
ground even though counsel did ask for a
severance and further raised the issue of
denial of severance on appeal. Petitioners
base their allegation on Amendment 7 to
the Arkansas Constitution which provides
No measure approved by a vote of the
people shall be amended or repealed by
the General Assembly or by any City
Council, except upon a yea and nay vote
on roll call, of two-thirds of all the mem
bers elected to each house of the General
Assembly, or of the City council, as the
case may be.
(1-7) It is true that Act 470 of 197]
(Ark.StatAnn. § 22-242) which allowed
adoption of rules of criminal procedure had
the effect of repealing some provisions
which had been enacted by initiated acts.
It is also true that when Act 470 was
passed, the legislators could not know
which initiated acts would eventually be
replaced. We further agree that Act 470 in
conjunction with this court's power to
promulgate rules of procedure had the ef-
fect of denying petitioners separate trials.
Nevertheless, while there is a serious ques-
tion as to whether Initiated Act I was con-
stitutionally repealed by Rule 22, we need
not reach that question here because peti-
tioners waived the issue by not raising it at
trial and on appeal. No issue, even if it
presents a question of constitutional dimen-
sion, is preserved beyond direct appeal un-
less it is of such fundamental nature that
the judgment would be rendered void.
Neal v. State, 270 Ark. 442, 605 S.W.2d 421
(1980). Such fundamental questions are
few. Lack of jurisdiction is sufficient to
void a judgment; as is a conviction ob-
tained in violation of the provisions against
double jeopardy. See Martin v. State, 277
Ark. 175, 639 S.W.2d 738 (1982); Rowe v.
State, 215 Ark. 37, 627 S.W.2d 16 (1982).
The repeal of an initiated act by means of a
83
vote of the legislature allowing the adop-
tion of non-specific rules of criminal proce-
dure, however, does not void judgments in
cases tried under the adopted rules of pro-
cedure. Moreover, the trial court's denial
of the petitioner's motion for severance on
the grounds advanced at trial and con
sidered on appeal is also unavailable to
petitioners as a basis for postconviction
relief. Grounds raised on appeal are ex-
hausted and cannot be reargued under
Rule 37. Hill v. State, 278 Ark. 194, 644
S.W.2d 282 (1983). If criminal cases are to
have finality, it must be recognized that a
fair trial and a full consideration of assert-
ed error on appeal are the means by which
the majority of issues are finally settled
Challenges which are not made at trial or
on appeal in accordance with the control
ling rules of procedure are waived. Col
lins v. State, 271 Ark. 825, 611 S.W.2d 182.
cert. denied, 452 U.S. 973, 101 S.Ct. 3127,
69 L.Ed.2d 984 (1981). Postconviction re
lief is limited to grounds sufficient to void
the judgment or open it to collateral attack
(8,9] Petitioners have attempted to col-
laterally attack their judgments on the ba-
sis of ineffective assistance of counsel,
alleging that counsel was ineffective for
failing to raise the severance issue on the
grounds that Rule 22 unconstitutionally re-
pealed Act I of 1937; but to establish inef-
fective assistance counsel, a petitioner
must first show that he was prejudiced by
the conduct of counsel. Strickland v.
Washington, — US. ——, 104 S.Ct. 2052,
80 LEd.2d 674 (1984). On appeal, the
issue of whether petitioners were preju-
diced by the denial of the motion for sever-
ance was considered and decided adversely
to them. Petitioners failed to demonstrate
on appeal that the jury was unable to fairly
distinguish between them in the guilt and
penalty phases of the trial. As we said on
appeal, the facts before the jury indicated
that the blame for Mr. Lehman's murder
rested with near equality on all four peti-
tioners. The safeguards in our law where-
by capital defendants are tried and sen-
tenced are intended to prevent the arbi-
trary and capricious imposition of the death
—_—:.
——— ee ee ee
a
886 Ark
penalty The de
wa not capr
" netit ers }
. '
ra t Va
‘ ‘ f
} a :
) Pe
‘ f
" ‘
.
1.4 lant ¢
‘ ia
4 illegati
il and <«
tl petit
the widome f
Ah
Waived Wi?
‘ VY
t . '
‘ ‘ Lliegat
were ra ed
f rie { ra
re I r
tr I
; , "
appeal v
Petiti j
ryTINT
| Ass
Vy |
:
w
(o !
Virgil DAUGH
Ruby SHIPLEY.
arroll, Jo Shir
teve
669 SOUTH WESTERN REPORTER, 2d SERIES
} '
at enalty in this case dies His
‘ Y lied. His heirs brought suit against «
y ior $1,666, estimated cost of re;
fa ‘ | , ‘ tat , if . | ; . : ; .
' f é ‘ Low owner filed motion
rote ‘ Aa :
| ~~ iwsuit contending heir had
1é1 cd
aay’ ¢ f
. f bring it on truck w ne
} OW owner al f ed } é ied
eserving pround lor ad }
‘ ‘ f tributor rolio
itory negligence, and f
y ‘ i SceKking $300 45 Vaiue of a
ut Court, Randolpt County, A
ew | Ponder, J.. dismi sed mot
a nt ] j
ea counterciair nd
, , | and fo
fa heirs for $1.66 ind N OWI!
LT Supreme C .
r r } : th if j ) } ‘ } : tar
’ ) nee ra ‘ } '
law { ind {
na tat
J alu . j j
e¢ , '
ttor
hye
Ark {
- : Automobil. {
id ( for dar pre iga t A
ad
} ? were f t re [
Appeal and Error 1036(1)
t harmke err whe
e al wed ti titute | {
Damages 113
Ma ure 9
— Me ire for damages for damage
nal property is difference in fair ma
k value of property immediately befor
ediately after occurrs AM
A x
i\ETEE, Appellant
4. Damages 113
vy
T? 7
. | e costs of repai n t
Yancy Jone brenda } let
rea in determining diff nce e
y, Aller hiple and , - Ss Cupwenee |
| ‘ ‘ . | }
f market vaiue of property in
ey, Appelle ,
[ tely hefare and fmmediatela afi
{ LO! and immediate! aiver o
R4 na
1using damage to propert
Damages @=188(1)
4 |
- ,
Where there was no test ‘
f ft kK either before or after «
ind no direct testi: I :
P
P , done to cow. trial «
}
Ky
en ae a
' gies
UNITED STATES DISTRICT COURT JUL 29 1933
H ONETERN DISTRICT OF ARKANSAS capt R. BRENTS, CLERK
PINE BLUFF DIVISION
By: DEP. CLERK
3 L RAY ORNDORFF, PB-C-84-300 (consolidate with)
4 WILLIAM HOLMES, PB-C-84-301 ,
yT FRANKLIN CLINES, PB-C-84-302
4 Vv. RICHLEY PB-C-84-303 PETITIONERS
LOS DEPAS DIRECTOR,
KMRSAS DEPARTMENT OF
IRRECTIONS RESPONDENT
MEMORANDUM AND ORDER
Bo the 20th day of April, 1987, a hearing was held on the
ynsolidated petitions for habeas corpus filed by the
Hoyt Franklin Clines and
petitioners,
jd@mael Ray Orndorff, James William Holmes,
aml V. Richley-s pursuant to 28 U.S.C. § 2254. FOr the reasons stated
n this opinion the relief sought is granted in part and denied in
| af.
\AGK GROUND
sifted in part in narrative form,
The facts giving rise to the instant petitions for habeas relief,
are as follows. At approximately
9:45 p.m. on the night of January 8, 1981, the front doorbell rang at
D Lehman's home in Rogers, Arkansas. Lehman opened the door just a
f inches .to see who was there but was {immediately shoved back.as four
masked men forced their way into his home. At least two of the men
fre armed with handguns and one was carrying 4 chain. Following 4
i
T C4
i
i . | ave
Apo “O° «-<co cee
brief struggle with the intruders Lehman was thrown into his bedroom.
He was probably shot once as he was thrown into the room, and was shot
twice more while held down on his own bed. He died of the gunshot
wounds within minutes. Approximately fifteen to thirty minutes later
Bf the four intruders fled the scene, taking with them over $1,200.00 in
cash and Don Lehman's collection of guns. Lehman's wife and daughter
aS present during the entire incident.
Six days later an information was filed by the Benton County,
Arkansas prosecuting attorney charging Orndorff, Holmes, Clines and
Bf Richiey, collectively referred to as the petitioners, with capital
felony murder. The information alleged that during or in furtherance
of a robbery one or more of the petitioners caused the death of Don
Lehman under circumstances manifesting extreme indifference to the
value of human life. see Ark. Stat. Ann § 41-1501(1) (a) (Repl. 1977)
| oe codified at Ark. Code Ann. § 5=10-101 (1987)). On May 14, 1981 an
amended information was filed which charged the petitioners each, in
addition to the felony murder counts, with two counts of aggravated
— for the alleged use of a deadly weapon with the purpose of
committing a theft from Lehman's wife and daughter. See Ark. Stat.
gee. S$ 41-2102 (Repl. 1977) (now codified at Ark. Code Ann. § 5-12-103
(1987)).
? | The petitioners were tried jointly, despite numerous motions for
severance, and the jury returned verdicts of guilty on all counts. On
September 28, 1981 the trial judge sentenced each of the petitioners to
consecutive life terms on the aggravated robbery counts and, follcwing
ata rl ee... tit«iw#C#
“the unanimous recommendation of the jurors, sentenced each of them to
death by electrocution on the felony murder counts. The convictions
were affirmed on appeal to the Arkansas Supreme Court and petitions for
collateral relief pursuant to Arkansas Rule of Criminal Procedure 37
were summarily denied. See Clines v. State, 280 Ark. 77, 656 S.W. 2d
684 (1983), cert. denied, 465 U.S. 1051 (1983).
On June 28, 1984 appointed counsel filed in this court separate
petitions for habeas corpus relief on behalf of each petitioner. These
petitions were consolidated for disposition by order of October 23,
1984. Between June, 1985, and August, 1986, the case was closed for
administrative purposes as there was a case before the United States
Supreme Court which, if decided in the petitioners' favor, would have
mandated that habeas relief be granted. It was not 50 decided and a
hearing was scheduled for April, 1987, on the remaining issues raised
in the consolidated petitions. See Lockhart v. McCree, 476° U.S.162
(1986), reversing sub non, Grigsby v. Mabry, 758 F.2d 226, (8th Cir.
1985) (en banc) (in which the Eighth Circuit held the "death qualified
Jury" unconstitutional). At the habeas hearing the court ordered that
post-hearing briefs be filed and agreed to let counsel for each of the
petitioners divide the issues raised so that they did not duplicate
each other's efforts, and so they could each devote more time to the
research of each issue. Pollowing a delay of over one year, occasioned
by numerous requests for extensions of time in which to file the briefs
and the necessity of appointing substitute counsel for one of the
petitioners after the briefs had been filed, the case is now realy Sou
(3
Ey...
disposition.
In their consolidated petition and common briefs the petitioners |
allege as grounds for relief: (1) that the Arkansas Capital Felony |
Murder Statute is unconstitutional; (2) that the trial court's denial
of notions for severance violates their Pourteenth Amendment Cight of |
due process; (3) that the use of a "death qualified jury" violates the
fair cross section requirement of the Sixth Amendment; (4) that the |
jury was improperly "death qualified" under Witherspoon v. Illinois,
391 U.S. 510 (1968); (5) that the crial court's decision limiting them
to a total of twelve peremptory challenges violates their Fourteenth
Amendment right to equal protection of the law; (6) that non disclosure
of the fact that two state witnesses had been subjected to hypnosis at
the prosecutor's direction violates their Sixth and Fourteenth
Amendment rights; (7) that allowing the jury to consider the motive of
of the trial violates their Eighth Amendment rights; and (8) that
petitioner Clines was denied his Sixth Amendment right to effective
assistance of counsel. The respondent concedes that all state remedies
have been exhausted. Each issue will be addressed below, not
necessarily in the order raised.
I. HYPNOSIS
The murder victim's wife, Virginia Lehman, and their daughter,
| Vicki Lehman, were at home on January 8, 1981 and were witness to the
OO —————— ——
CH
i “pecuniary gain" as an aggravating circumstance in the sentencing phase
t
“tragic events which took place that evening. On January 9 and January
gu. 1981 both Virginia and Vicki were interviewed by the police and
their statements were recorded. Vicki was able to give the police a
D tesesineios of the four masked men and she helped a police artist
sketch the one who had removed his mask during the commission of the
| She later identified petitioner Clines in a police line up as
Bf chet man. The prosecutor testified at the habeas hearing, however,
that on February 10, 1981 he had made the decision to have the Lehman
ee hypnotized. The reason articulated for this decision was that
;omee descriptions were vague and that Vicki was unable to recall
the name one of the intruders had called the other.
j Carrying out his decision to hypnotize Virginia and Vicki the
prosecutor enlisted the aid of one Gene Peters, who had learned how to
teas people in a six month course at the Springfield School of
jee" in Springfield, Missouri. That school has no official degree
Program, offers no diploma and has a faculty of one -- the owner.
JJ rotiowins his "graduation" Peters made his living for a time by helping
people to lose weight and stop smoking with the aid of hypnosis. He
Betas worked with a couple of patients of a local dentist and hypnotized
witnesses to a string of gas station hold-ups for the Rogers police
_ Peters has never testified as an expert witness but was
poate to the stand once in a criminal trial when a former client of
his asserted as a defense that he committed a bank robbery under the
Binsiuence of a post-hypnotic suggestion. Peters has no cegree from any
accredited college or university.
|
; C5
i
At the prosecutor's suggestion Virginia and Vicki Lehman went to
Peters' office to be hypnotized on February 18, 1981. Peters eskeg
that the prosecutor not show him the Lehmans' prior statements because
he did not want to be in a position to ask questions which suggested
the answer. Peters had, however, previously seen newspaper accounts of
?
:
é
:
the crime and he conducted more than ‘one session with the Lehmans at
: which their stories were recited. In his deposition, which was
i introduced in evidence at the habeas hearing, Peters testified that he
did not think Virginia was a good subject for hypnosis but that he
DT weesa Stand corrected if someone told’ him otherwise. He recalled that
Vicki, on the other hand, was quite good and that he had four or five
I sessions with her. He only twice tried to hypnotize Virginia, and she
if testified at the hearing that she thought he had only two sessions with
Vicki.
i Virginia was permitted to attend Vicki's sessions with Peters,
. and Vicki was present at Virginia's. But other than Peters no others
I... present. During the sessions Peters would try to get his subjects
| i revisualize and relive the events of January 8 and, following each
session, he and the Lehmans would report to the prosecutor's office.
Bf veters took notes of each session but no electronic recording devices
were used. His notes were never turned over to the prosecutor and have
B dince been destroyed. Neither Peters or the prosecutor have any record
oo questions asked and the responses civen.
At the habeas hearing the prosecutor testified that he did not
Bf incorm defense counsel that the Lehmans had been hypnotized because no
|
i | Oly
—_—_—_ --— --
new information had been elicited and he did not consider the fact that
hypnosis had been performed to be exculpatory evidence. In fact,
counsel for the petitioners were not aware that hypnosis had been
performed until after the appeal was filed with the Arkansas Supreme
B court. The petitioners argue now that this failure to disclose the
fact of hypnosis violates their Sixth Amendment right of confrontation
and their Fourteenth Amendment right of due process. The state
responds that the non disclosure was harmless error beyond a reasonable
doubt.
A. The Sixth Amendment Claim
The Sixth Amendment to the United States Constitution provides
that "filn all criminal prosecutions, the accused shall enjoy the right
q... to be confronted with witnesses against him." The purpose of this
right to confrontation is to secure for the defendant the opportunity
for cross-examination, and the right is applicable to state as well as
federal proceedings. Davis v. Alaska, 415 U.S. 308, 315 (1974);
Douglas v. Alabama, 380 U.S. 415, 418 (1965). A defendant shows a
Jf victation of the Sixth Amendment right to confrontation if he proves
that he was prevented from exposing facts to the jury from which they
B coyia reasonably make inferences about the reliability of the witness.
oe v. Van Arsdall, 475 U.S. 673, 680 (1985); Davis v. Alaska,
supra at 318; United States v. Gregory 808 ‘Fe 2d 679, 680-81 (8th Cir.
B 1987); United States v. Dempewolf, 817 F.2d 1318 (8th Cir.), cert.
é
i 07
denied, 108 S.Ct. 245 (1987). But an otherwise valid conviction should
not be set aside if the reviewing court is able to confidently Say, on
the whole record, that the constitutional error was harmless beyond a
reasonable doubt. Delaware v. Van Arsdall, supra at 684; Chapman y,.
California, 386 U.S. 18 (1967). In this case the court finds that
there was constitutional error committed and that the error was not
harmless beyond a reasonable doubt.
There have been a plethora of recent federal and state court
decisions concerning the effects of hypnotically enhanced testimony,
most of which are noted in the Supreme Court's recent decision on the
subject. See Rock v. Arkansas, 0.8. , 107 S.Ct. 2704 (1987).
Although Rock decided the converse of the issue presented here -- the
right of a previously hypnotized criminal defendant to testify on his
own behalf -- that opinion is, nonetheless, instructive. In Rock, the
Supreme Court granted certiorari to review a Supreme Court of Arkansas
ruling which limited the testimony of a criminal defendant who had been
hypnotized to "matters remembered and stated to the examiner prior to
being placed under bypnosis.* The basis for the Arkansas court's
decision was that hypnotically refreshed testimony of a witness is
inadmissible per se because the dangers of admitting such testimony
alvays outweigh whatever probative value it may have. The Supreme
Court vacated and remanded, reasoning instead that the per se
exclusionary rule impermissibly infringed on a criminal defendant's
right to testify on his own behalf, in part because the Arkansas rule -
left the trial court with no discretion to admit such testimony even if
C8
=
_,
The Court
107 S.Ct.
suggested
it was determined to be reliable.
Discussing the reliability of hypnotically refreshed testimony the
Court stated that the most common response to hypnosis appears to be an
increase in both correct and incorrect recollections. Id. at 107 s.ct.
2713. In the Court's words this occurs because
{t]he subject becomes "suggestible" and may try to please the
hypnotist with answers the subject thinks will be met with
approval; the subject is likely to "confabulate," that is, to
fill in details from the imaginacion in order to make answers
more coherent and complete; and, the subject experiences
"memory hardening," which gives him great confidence in both
true and false memories, making effective cross-examination
more difficult.
went on to say that
{t]he inaccuracies the process introduces can be reduced,
although perhaps not eliminated, by the use of procedural
safeguards. One set of suggested guidelines calls for
hypnosis to be performed only by a psychologist or
psychiatrist with special training in its use and who is
independent of the investigation. These procedures reduce
the possibility that biases will be communicated to the
hypersuggestive subject by the hypnotist. Suggestion: will be
less likely also if the hypnosis is conducted in a neutral
setting with no one present but the hypnotist and the
subject. Tape or video recording of all interrogations,
before, during, and after hypnosis, can help reveal if
leading questions were asked ... Cross~examination, even in
the face of a confident defendant, is an effective tool for -
revealing inconsistencies. Moreover, a jury can be educated
to the risks of hypnosis through expert testimony and
cautionary instructions. (citations omitted).
at 2713-14. Similar procedural safeguards have also been
by the Eighth Circuit Court of Appeals. See Sprynczynatyk v.
Jf General Motors Corp., 771 F.2d 1112 (8th Cir.), cert. denied, 475 U.S.
C4
au \
1046 (1986).
In the instant case it is undisputed that Vicki Lehman, one of
only two occurrence witnesses, had been hypnotized prior to the time |
she participated in a reenactment of the crime and before she testified
at trial. It is further undisputed that the trial court never had an
opportunity to rule on the admissibility or reliability of her
hypnotically refreshed testimony, because the fact that she had been
hypnotized was never disclosed by the prosecution. Purthermore, it is
apparent that virtually no procedural safeguards were followed. The
hypnotist had no college degree in psychology or any other subject. He
conducted his sessions without charge in the hope of uncovering a new
lead which he could later “brag on." Virginia Lehman, the only other
occurence witness, was present each time Vicki underwent hypnosis
and the sessions were not electronically recorded. The only notes of
the sessions have been destroyed and had been, prior to their
destruction, in the sole possession of the hypnotist thereby making it
virtually impossible to determine whether subtle or overt suggestions
were introduced.
This haphazard manner in which the sessions were eininens leaves
no doubt that the state's failure to disclose the fact that hypnosis
was performed on one of its two occurrence witnesses prevented the
petitioners from exposing facts to the jury from which they could make
inferences about the reliability of the witness's testimony — a
violation of the confrontation clause of the Sixth Amendment. And the
:
|
had read of the events in question in the local newspaper and had t
:
i
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‘prosecutor's own arguments at trial, in which he emphasized the clarity
| Vicki Lehman's memory and the importance of her testimony, prevents
the court from concluding that the error was harmless beyond a
en doubt. An example is illustrative.
The prosecutor began his opening statement by stating that the
jury was going to be “amazed at the recollections" of Vicki Lehman.
Breen, in closing, he stated that
t (iln spite of being faced with the traumatic ordeal as it
happened, [Vicki] did not lose her presence of mind. She did
not lose her sense of observation or objectivity. It was
i Stored there. It took a little while to get it out of her,
we had to talk to her several times. We had to go back and
re-enact that scene finally and jerk her hair around, just
3 like it was. Just like it happened to her to get her to
remember if a gun was pointed here, who was here and who was
there. It was stored in there and she was later able to
: recall it. And she recalled it well on the stand. I suggest
to you that she saw and heard exactly what she testified to
could not be doubted. Her physical description of these four
; people, just incredible. (Tr. 4269). © :
This girl has powers of observation that were working
and working right then and never quit working. There were
E times when things were confusing, but I suggest: to you that
her testimony was unimpeachable. They tried to attack it and
they got nowhere. (Tr. 4269-70).
Her testimony is real important. Important for several
reasons, two in particular. One, becuase it just describes
the hideous crime, the hideous, unprovoked attack on --
breaking in the door and attacking her father. But two, her
testimony showed unequivocally, that all four of these
defendants -—- each and every one of them -—— were involved
= on in the attack that resulted in her father's death.
Tr. 4270).
| Had the fact of hypnotism been disclosed to defense counsel and the
court this court may well have decided this issue differently.
Pederal courts are in agreement that a witnesss' hypnotically enhanced
testimony does not violate the confrontation clause, in and of itself,
where both the witness and the hypnotist are available for
cross-examination concerning the effects of the procedure.
See, e.g.
Clay v. Vose, 771 F.2d 1 (lst Cir. 1985), cert. denied, 475 U.S. 1022
(1986); Chaussard v. Fulcomer, 816 F.2d 925 (3rd Cir. 1987), cert.
denied, 108 S.Ct. 139 (1988); McQueen v. Garrison, 814 F.2d 951 (4th
Cir.), cert. denied, 108 S.Ct. 332 (1987); Harker v. State of Maryland,
800 F.2d 437 (4th Cir. 1986); Beck v. Norris, 801 F.2d 242 (6th Cir.
1986); United States v. Charles, 561 P.Supp. 694 (S.D.Tex. 1983). And
the Eighth Circuit has adopted a flexible rule for the admissibility of
hypnotically refreshed testimony whereby the district court may allow
it after conducting a pretrial hearing to assess the effect of hypnosis
upon the reliability of the testimony. The proponent of such evidence
bears the burden of proof and, if such evidence is admitted, the
opposing party may cross-examine concerning hypnosis and both parties
may bring in experts to testify to the problems and benefits of
hypnosis. Sprynczynatyk v. General Motors Corpe, Supra at 1122-24;
Little v. Armontrout, 835 P.2d 1240 (8th Cir. 1987) (failure to provide
indigent defendant with hypnotic expert violated defendant's right to
fair trial).
The procedures followed in this case, however, compounded by the
prosecutor's fadiuce to disclose, denied the trial court_an opportunity
to assess the reliability of the testimony, denied the petitioners the
right to full and effective cross~examination and denied the jury the
CIQ
opportunity to assess the credibility of a key state witness from a
Proper perspective. All of the instances where Ms. Lehman's trial
testimony differed from or added to her previous statements need not be
discussed because the court finds that the prosecutor's failure to
disclose was inherently prejudicial. As stated by one court,
(oJnce a witness makes a recitation under hypnosis, his
confidence in that supposed memory -- whether genuine or
invented -- is greatly strengthened (sic). The witness then
may have an unshakeable subjective conviction that gives his
account on the witness stand the imprimatur of absolute
confidence. (citations omitted).
United States v. Valdez, 722 F.2d 1196, 1202 (Sth Cir. 1984). The
petitioners have the right to bring this, and other problems associated
with hypnotically refreshed memory before the jury on
cross~examination.
The prosecutor knew, or should have known, that his failure to
disclose may constitute reversible error. At the habeas hearing he
testified that he did some legal research regarding hypnosis in which
he located the case of United States v. Adams, 581 P.2d 193 (9th Cir.),
cert. denied, 439 U.S. 1006 (1978). That case expressly states that
reversals. have been predicated on the failure to disclose the fact of
hypnosis. Id. at 198. Yet, the prosecutor chose not to reveal that
two witneses had been hypnotized and, in part because of that decision,
this court.finds that the petitioners' Sixth Amandment right to
confront witnesses against them has been denied.
B. The Pourteenth Amendment Claim
i
The petitioners argue that their right to due process under the
ae Amendment was denied because the prosecutor failed to inform
prone counsel that a state witness, Vicki Lehman, had been
hypnotized. The court agrees. Brady v. Maryland, 373 U.S. 83 (1963),
| ee that the suppression of evidence favorable to an accused upon
equest violates due process where the evidence is favorable either to
| or punishment. And evidence which may be used to impeach a
pyitness’s credibility has been held to come within the Brady rule.
Giglio v. United States, 405 U.S. 150, 154-55 (1972). Constitutional
Becor occurs, however, only if the evidence is material in the sense
in its suppression undermines confidence in the outcome of the trial.
nited States v. Bagley, 473 U.S. 667, 678 (1984). The court concludes
Er this case that there was constitutional error.
Arkansas Rule of Criminal Procedure 17.1 requires the prosecutor
| i. disclose to defense counsel upon timely request
7 any reports or statements of experts, made in connection
with the particular case, including results of physcal or
mental examinations, scientific tests, experiments or
comparisons.
Baaitionariy, &@ pretrial order was issued by the trial court which |
required the prosecutor to disclose, inter alia, the "results of
cilentific tests when available." -The court has no doubt that
_ falls within the broad category of “scientific tests."
|
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i .
: CH | | 7 |
Therefore, construing the pretrial order as conclusive evidence of a
Beinery request, the court finds that disclosure was required under
Brady.
Although numerous witnesses testified as to events which occurreq
gerier to or after the robbery and murder, only Vicki and Virginia
Lehman were witness to what took place inside their home. Moreover,
Bsince Virginia Lehman was instructed by the intruders to remain on the
floor in a face down position Vicki's testimony became most important.
7 described in detail the way the four masked men broke through the
_ and the positions each of them took up inside the home. She
retraced their movements and it was her testimony alone that placed all
Beour intruders in the bedroom where the murder took place -- a
deviation from her pretrial statement in which she could place only
Ries men in that room when the shots were fired.
In contrast to Vicki's vivid testimony, Virginia -Lehman's ~
testimony was brief and was lacking in detail as to the events which
ffnroiaea. She remembers hearing the commotion when the intruders broke
in and then she remembers hearing a shot, but cannot be sure where the
eople were when she heard it. Her testimony only places three of the
intruders in the room and she remembers only one gun and one gunshot.
This lack of detail in Virginia's testimony and the gaps.in her memory
Brigntignt the importance of Vicki's testimony to the jury.
The court's review of the entire record does reveal, beyond a
— ees doubt, that the petitioners were responsible for the robbery
for which they were tried. Their activities in preparation
i e
i C15
for the armed break-in and the events which later lead to their
© apptehension were fully documented through the testimony of thirty four
Prosecution witnesses. However, even though there is no question of
ie guilt for the crimes charged, the court is unable to say with
§ confidence that the jury would have recommended the death penalty for
each and every petitioner had defense counsel been informed of Vicki
B vehman's hypnosis. Critical portions of her testimony may have been
disregarded by the jury had they known of the effects of hypnosis, or
I
the trial court may have deemed some testimony inadmissible altogether.
gc: Little v. Armontrout, Supra (trial court's refusal to appoint an
expert in hypnosis for an indigent defendant violated due process and
B rendered the trial fundamentally fair).
Therefore, it is the finding and decision of this court that the
ee Sixth and Fourteenth Amendments rights were violated, and
te unless the state either retries the petitioners or commutes their
death sentences to life without parole within 120 days, the writ shall
| issue. Por appeal purposes the court will now address the remaining
= raised by the petitioners.
| ARKANSAS* PELONY MURDER STATUTE
t The petitioners assert that the Arkansas Felony Murder Statute is
unconstitutional because (a) it does not require the jury to consider
the culpability of each defendant, (b) it provides for a mandatory
death penalty, and (c) it is vague and overbroad. Each of these issues
was fully addressed and rejected by the Arkansas Supreme Court ina
Been written opinion with which this court concurs. See Clines vy.
= Supra. Accordingly, without further discussion, this claim for
relief is denied.
III. SEPARATE TRIALS
i
The petitioners take the position that the trial court's denial of
A aes: motions for separate trials was an abuse of discretion which
i resulted in a "smear effect" among them and the exclusion of certain
out of court statements alleged to be exculpatory to individual
Deattticnurs. Inasmuch as this argument turns on alleged violations of
Arkansas procedural rules it does not state a claim for habeas relief.
B oocner, the petitioners must show that the trial court's failure to
Bsrcent their motions for severance rendered the joint proceeding
fundamentally unfair so as to violate due process. Johnson v. Dugger,
| fe P.2d 726 (llth Cir. 1987); Manning v. Warden, Louisiana State
apmgrengsd 786 P.2d 710 (Sth Cir. 1986); Cf. Robnson v. Wyrick, -735
F.2d 1091 (8th Cir.), cert. denied, 469 U.S. 983 (1984) (to obtain
federal habeas relief for failure to sever offenses, the joinder must
render the trial fundamentally unfair). Upon review of the record the
B court finds that the petitioners have failed to meet their burden of
proof.
z At voir dire each of the jurors stated under oath that he or she -
_— consider each defendant separately and they were instructed at
i
Ue
the close of trial that they must so consider each defendant, rendering
Separate verdicts as if each had been tried separately. The record
shows more than ample evidence from which the jury could have found,
beyond a reasonable doubt, that each petitioner was guilty of the
orines charged. There is simply no indication of a "smear" effect and,
in the face of evidence showing unequivocally that the petitioners
was committed the court cannot say that the petitioners were prejudiced
by evidentiary rulings so as to make their trial fundamentally unfair.
Accordingly, this claim for habeas relief is denied.
IV. JURY SELECTION UNDER WITHERSPOON
Witherspoon v. Tllinois, 391 U.S. 510 (1968), holds that a state
i jointly planned and executed an armed robbery during which a homocide
may not carry out a sentence of‘ death imposed by a jury which was
selected by excluding veniremen for cause simply because they voiced
general objections to the death penalty or expressed religious or
t conscientious scruples against its infliction. Id. at 521-22. The
most that can be demanded of a prospective juror is that he or she be
é willing to consider all of the penalties provided by state law, and
that he or she not be irrevocably committed before the trial has begun
y to vote against the death penalty regardless of the facts and
' circumstances that might emerge. Id. at 522, n. 21. The petitioners
contend here that the Witherspoon rule was violated with respect to od
5 three veniremen. The court disagrees.
H CAR
E because she stated that she didn't "think" she would impose the death
The petitioners argue that Betty Kaiser was excused for cause
penalty, and that Karen Dick was excused for cause because of her
F veneanene that she "might could" vote for the death penalty. They
ges state that their request to have Harley Woods excused was refused
even though he said he could not vote for anything other than the death
B penaity on the first ballot, and that they had to exercise a peremptory
Strike against him which would have been used later.
i In ruling on these claims on appeal the Arkansas Supreme Court
eT that, in context, the statements relied on were tentative or
equivocal. The court went on to rule that the trial court was in the
Best position to gauge the attitude of the veniremen and that the trial
court's discretion was not wrongly used. Clines v. State, 280 Ark. at
eee 656 S.W.2d at 688-89. These rulings of the trial court and the
ee supreme court are entitled to a presumption of correctness under
28 U.S.C. § 2254(d). Wainright v. Witt, 469 U.S.412 (1985). The
Poretitioners have not overcome the presumption.
In addition to the excerpts of the voir dire relied on by the
| ee Kaiser stated that she could not impose the death penalty
herself, and that that feeling was fairly firmly fixed. When asked by
the prosecutor if she could consider alternatively life without parole
| a death she answered that she could not. And she stated without
equivocation that even. though she believes some people deserve the
death penalty she would not vote for it.
i Dick was excused for cause both because she had preconceived
notions of guilt and because of her inability to consider the death
penalty. She stated that at the time she received information from
the media and third parties she had formed an opinion as to guilt or
a; And she placed herself ina category of persons who, while
Brct opposed to the death penalty, could not personally impose it. In
addition, she stated that if the evidence presented a close question as
i... guilt or innocence she would feel some pressure to vote for guilt
because of the expectations of third parties,
i Woods, whom the trial court refused to excuse for cause, stated
Bi chac facts and circumstances may dictate a sentence of life without
parole as opposed to the death penalty. He assured the court that he
® could keep an open mind on punishment uutil he had heard all of the
evidence in the Sentencing phase of the trial. In response to defense
Boone's question whether he thought the only permissible punishment
Bor one convicted of capital murder was death he replied that it would
shave to be considered after weighing the evidence. Moreover, in
| response to a question by the court Woods stated that he could consider
either life without parole or death and base his decision on the
ne
‘ ‘Accordingly, the court finds that the trial court's rulings are
supported by the record, that the Witherspoon rule was not violated and
Benat this claim for habeas relie* must be denied.
i. PEREMPTORY CHALLENGES
((20
_—_——— challenges pursuant to Ark. Stat. Ann. § 43-1929 (Repl.
The trial court limited the petitioners to a total of twelve
$77) (mow codified at Ark. Code Ann. § 16-33-307 (1987)), which
tee that when several defendants are tried jointly a challenge by
= shall be the challenge by all. . The petitioners argue that, had
they been tried separately, each would have been entitled to twelve
Bpevenptecy challenges, and that because they were limited to a total of
welve in the joint proceeding they have been denied equal protection
. the laws under the Pourteenth Amendment. This argument is without
Perit.
Pirst, there is no constitutional right to perémptory challenge.
Besison v. United States, 250 U.S. 583 (1919). All that is guaranteed
y the constitution is the right to an impartial jury. Id.; U.S.
eS Amend. VI. This the petitioners received. Second, since it is
et argued that persons tried jointly comprise a suspect class, and
there is not at issue a fundamental right guaranteed by the
: Renetttesion, this court must analyze the petitioners’ Claim under the
- ag basis standard of review. Harris v. McCrae, 448 U.S. 297, 322
1979) (quoting McGowan v. Maryland, 366 U.S. at 425). Under that
es the petitioners' claim fails beseuse the state's legitimate
interest in expediting trials, thereby conserving judicial resources,
§. rationally related to the procedural rule enacted. For the same
the petitioners’ argument that the state rule is arbitrary and
rrational in violation of the due process clause of the Fourteenth
‘eo must also fail. See, e.g. Tarter v. James, 667 F.2d 964
i
i | C2I
(llth Cir. 1982) (statute allocating peremptory Challenges on basis of
f county population rationally related to state's Purpose). This claim
E for relief is, therefore, denied.
i VI. INEFFECTIVE ASSISTANCE OF COUNSEL
4 Petitioner Clines alleges that his counsel at trial was
} ineffective because (a) on cross-examination of a state witness he
elicited testimony that Clines had been involved in another crime
: the night before the Lehman incident, (b) he failed to timely object to
introduction of a co-defendant's out of court statement which
B snpricatea Clines as the one who beat and/or killed Don Lehman, and (c)
.* failed to object to the introduction of Clines' tennis shoe into
evidence, Analyzing these claims under the Standard set forth in
fj Strickiana v. Washington, 466 U.S. 668 (1984), the court finds that
Clines
was not denied his Sixth Amendment right to effective assistance
gt of counsel and that this claim for relief must be denied.
fg Peover functioning of the adversarial Process that the trial cannot be
To prevail on a claim of ineffective assistance of counsel the
petitioner must establish that counsel's conduct 50 undermined the
In order to do
relied on as having produced a just result. Id. at 686.
§ .. he must show first that the defense was prejudiced. To be-
— the errors of the petitioner's counsel must give rise to a
reasonable probability that, in the absence of error, the result of the
crs would nave been different. Id. at 694. And to be deficient
(“22
the counsel's performance must fall below an objective standard of
reasonableness when all circumstances are considered. Id. at 687~g8,
The petitioner must overcome the presumption that the challenged action
might be considered sound trial Strategy, and the reasonableness of
counsel's actions may be determined Or substantially influenced by the
petitioner's own statements or actions. Id. at 691.
As to Clines' first claim, that counsel elicited damaging
testimony from a state witnes S, the court need not reach the prejudice
component of the Strickland test because counsel's strategy was not
tt
‘
i
i
E
i
é unreasonable, In his deposition, Clines' trial counsel stated that: he
had asked Clines about his involvement in prior crimes with the other
i three defendants. He said that Clines "categorically denied any
involvement at all" ana that “he made excuses, alibis, swore to us that
i he was not involved in anything" the state witness was testifying to.
i The alleged damaging questions were asked because counsel’ was “relying
on what Clines had told Uhim]" and, on that basis, he made a "judgment
B cain. . The court finds counsel's actions to be objectively
reasonable,
i Clines admits in his brief that the prejudice resulting from the
oa two alleged errors was “very small" or “may or may not have been
strong." The court agrees with this assessment. The admission of
B cuines: tennis shoe into evidence had virtually no bearing on the
outcome of the trial as there was overwhelming evidence which placed
Clines at the scene of the crime. The out of court statement of
— Richley, that Clines was the one who removed his mask -and
i ,
i hn
«<*
beat Lehman with a chain, was likewise not prejudicial because Vicki
Lehman had previously identified Clines as that man. She helped a
Police artist sketch Clines and she later identified him in a line-up.
Moreover, State witness Tammy Baker established that Clines had
possession of a chain shortly before he went to the Lehman home, and
the state medical examiner testified that Lehman had been struck with a
‘VII. THE DEATH QUALIFIED JURY
In Lockhart v. McCree, 476 U.S.162 (1986), the Supreme Court ruled
|
i
$
i
i link type instrument.
i
t
a that death qualification -- the removal of jurors whose opposition to
: the death penalty is so Strong that it would prevent or substantially
impair the performance of their duties as jurors -- does not violate
Bf the "fair cross section" or "impartiality" guarantees of the Sixth
Amendment. This case fully disposes of the petitioners’ argument that
death qualification is unconstitutional and that claim for relief is,
— denied.
§ vir. PECUNIARY GAIN AS AN ELEMENT OF THE UNDERLYING OFPENSE AND AS AN
In Lowenfield vy. Phelps, 108 S.Ct. 546 (1988), the Supreme Court
|
“AGGRAVATING CIRCUMSTANCE* TO JUSTIPY A PENALTY OF DEATH
fully explored the "double counting" issue and held that there is no
§j Eighth Amendment violation where an “aggravating circumstance" used to
i
: C24
i
i ————i—i—‘(iswsSCisS
a offense. This case igs disppositive of the issue as raised by the
justify the death penalty duplicates an element of the underlying
pe and, accordingly, this claim for relief is denied.
i IX. VOLUNTARY WITHDRAWAL OP ISSUES RAISED
i At the habeas hearing both petitioners Clines and Orndorff
testified, against advice of counsel, that they would like to withdraw
i. issues which, if decided in their favor, could result at best in
gtr reduction of their sentences to life without parole. And more
recently, petitioner Richley has filed a pro se motion to dismiss his
B netition in its entirety. Counsel for each of the three have asked the
court to order psychiatric examinations before ruling on the merits of
i... petitioners" requests -- which if granted would result in the
Jjrctitioners: executions. Por the reasons that follow the court deems
it unnecessary to order the examinations or to rule on the requests to
withdraw the petitions.
The state trial was a joint proceeding involving all four of the
_ ite as co-defendants. And the court has ruled, above, that the
trial was constitutionally defective. Bedeuse petitioner Holmes has
not asked to withdraw his petition the court finds that all issues
Breretofore addressed in this opinion, with the exception of Clines’
claim of ineffective assistance, were properly before it. Because of
i ,
he role this court plays in the administration of justice it cannot
| the state to execute three of four co-defendants sentenced to .
{
3 C25
death following an unconstitutional proceeding.
It is icc the court's
® concern whether Clines, Orndorff and Richley wish to die at the hand of
the state. Rather, it is the court's concern that if the State chooses
‘ to execute one convicted of a crime, it do soina manner that Comports
J with the Constitution of the United States. This the state has not
done,
N The petitioners' reliance on Gilmore v. Utah, 429 u.s. 1012 (1976)
is misplaced. In that case the Supreme Court held Only that it had no
jurisdiction to hear an appeal of Gilmore's death Sentence brought by a
friend where there had been no showing that Gilmore was unable to
seek relief on his Own behalf. In the instant case the court does have
Bf jurisdiction by virtue of Holmes’ petition for habeas relief. Because
Clines, Orndorff ana Richley were Holmes' co-defendants in a joint
Becta, a finding by this court that the joint trial Was conducted in an
Re manner must inure to their benefit whether they sought
X~- CONCLUSION
‘Por the foregoing reasons I? IS HEREBY ORDERED that the writ shall
in 120 days unle
to gain such relief Or not,
SS the petitioners are given a new trial or, in
Fee alternative, their sentences
parole,
of death commuted to life without
é
a
THIS Z 7 DAY OF » 1988
Lfbenu ef
Y or ws GLZTZA_—
HENRY WOODS, BIS ICT JUDGE
THIS DOCUMENT ENTERED ON DOCKET
SHEET IN
7 at, ne ta ae
On_7
CA]
Te eS Te MOLL TTS RN ee OT RT ME WET OTIS Mae eT TE en eR OT eae ES
.
| United States Court of Appeals
FOR THE EIGHTH CIRCUIT
_ o
No. 88-2344
J al S 4 ne | ‘a A4
:
‘ ; uc€
J c vv i .
: Appeal irom the United
i * * State: is curt
a wie, ~tates District Court
= Cor
‘for the Eastern District
a t. e- ©
| vw *> |
Hoyt Franklin Cline: oe
—~
Appe
Vv ;
. Je 2Cckh:; t
ae < ar , Dir ector ,
~< 2aSs Dept . C 4 , - j
On,
Appellee.
A, y
» Appel] lant
V«
A. L Lockhart ; Direct OY ;
*
*
*
.
7
*
7
2
Darryl v. Richley, .
*
*
*
.
+
*
Arkansas Dept :
Dept. of Correction, *
i
*
Appellee.
Appendix: ‘py Ht
rr r—“‘<‘<‘isS
No. 88-2405
Michael Ray Orndorff,
Appellee,
A. L. Lockhart, Direct or,
Arkansas Dept. of Correction
/
2
> nrnernenenee @& &
Appellant.
James William Holmes,
Appellee,
Vv.
A. L. Lockhart, Director,
Arkansas Dept. of Correction,
Appellant.
eee ee a Appeal from the United
States District Court
for the Eastern District
of Arkansas.
Hoyt Franklin Clines,
Appellee,
Ve
A. L. Lockhart, Director,
Arkansas Dept. of Correction,
Appellant.
zx zeke tk
Darryl V. Richley,
Appellee,
Vv.
A; L. Lockhart, Director,
Arkansas Dept. of Correction,
"OS oseeeeeseeseeoeecaeseeesseeesseevessunsseeceauanc
Appellant.
DA nee
p~
~~
~
‘
‘
‘ ‘ . .
4 ‘ ‘ ‘ ‘ ‘ ‘
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f 4 10 + 7 ? Ages ‘ 140% 10 4
: 4 P . . , = . . as 2 \ 4 : ;
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reiler was denied, Clines v. State, 282 Ark
7 . t + + y Y Fs loaA notte 4 to f = he =>: h
>, i | 4 A Sio £4460 petitil ns Or labea
+} : r+ at aie i ak a *~117°4 Wi~eaciant . 72 Cc _ eek -e,
sat WMilSL-ITIC\ \ Ul \ DUIrSUaANL to 2 weomet« LZaI%
984 and the cases were consolidated for joint
f
r conducting an evidentiary hearing, the District
rough memorandum and order from which the partie:
itioners raised a number of grounds for habeas
trict Court, the principal issue below, and the
the District Court granted relief, concerned the
0 = aA cme Sf
Mm <_e 7
~~ eA\4406 | i }
-O evidence of the testimony of
e Henry Woods, United States District Judge for
“ict of Arkar
iSas.
Vickie Lehman, the victim's daughter and a key prosecution witness.
Unbeknownst to petitioners or to their trial counsel, Vickie and
her mother Virginia Lehman had been placed under hypnosis by one
Gene Peters roughly one month after the murder at the behest of the
prosecutor. As the District Court found:
During the sessions Peters would try to get his subjects
to revisualize and relive the events of January 8 [1981]
and, following each session, he and the Lehmans would
report to the prosecutor's office. Peters took notes of
each session but no electronic recording devices were
used. His notes were never turned over to the prosecutor
and have since been destroyed. Neither Peters [{njor the
prosecutor have any record of the questions asked and the
responses given.
Orndorff v. Lockhart, 707 F. Supp. 1062, 1066 (E.D. Ark. 1988).
Petitioners' attorneys did not learn that Vickie Lehman had been
hypnotized prior to trial until after they had filed the direct
appeal in the Arkansas Supreme Court. Id.
The District Court ruled that the prosecutor's failure to
apprise opposing counsel that Vickie Lehman had undergone hypnosis
violated the Confrontation Clause of the Sixth Amendment and the
Due Process Clause of the Fourteenth Amendment, and that the use
of her testimony at trial was not harmless error. In fashioning
its remedy, however, the District Court permitted the state, as an
alternative to retrying petitioners, to commute their death
sentences to life imprisonment without the possibility of parole.
Petitioners appeal from this ruling, claiming that the District
Court erred in permitting the state the option of commutation.
Lockhart concedes that the use of Vickie Lehman's testimony without
disclosure .of her hypnosis was constitutional error, but cross-
appeals from the District Court's finding that the error was not
harmless.
: na
Given the scope of the cross-appeal, we assume without
‘deciding that the District Court was correct in holding that the
use of Vickie Lehman's post-hypnotic testimony violated the
Confrontation Clause. In the District Court, petitioners sought
to establish that the use of this testimony was not harmless error
by demonstrating that Vickie Lehman's trial testimony differed
Significantly from statements she had given the police shortly
after the crime occurred; the state sought to show that any
variations were not material and that the error was therefore
harmless. At issue were some 137 instances of such variations.
Our difficulty with the District Court's treatment of the hypnosis
issue stems from the fact that, although it purperted to make a
harmless-error inquiry, the District Court did not analyze these
variations but rather held that the prosecutor's failure to
disclose that Vickie Lehman had been hypnotized was “inherently
prejudicial." Orndorff, 707 F. Supp. at 1069. The District Court
reasoned that Vickie Lehman's testimony at trial was “inherently
prejudicial" because post-hypnotic testimony may, generally
speaking, appear more credible than ordinary testimony since the
witness, through hypnosis, may gain a heightened conviction that
what he or she believes to be the truth actually represents
reality. See id. We believe this resolution of the harmless error
inquiry to be unsound.
Assuming that the prosecutor's nondisclosure of Vickie
Lehman's hypnosis ran afoul of the Confrontation Clause, that error
is not harmful simply because the jury might have found her.
testimony less credible had defense counsel been able to probe the
issue of her hypnosis on cross-examination. The fact that defense
counsel was denied use of a legitimate means of cross~examining an
adverse witness is not in and of itself grounds for disturbing a
guilty verdict. See Delaware v. Van Arsdall. 475 U.S. 673, 680-81
(1986). The District Court's view of the matter, we believe,
amounts to the contrary view, since it premises a finding of
harmful error on little more than the (presumptively) enhanced
credibility of Vickie Lehman's testimony and defense counsel's
inability to counteract it. As the Supreme Court stated in van
Arsdall:
The correct inquiry is whether, assuming that the
damaging potential of the cross~examination were fully
realized, a reviewing court might nonetheless say that
the error was harmless beyond a reasonable doubt.
Whether such an error is harmless in a particular case
depends upon a host of factors ..., includ{ing} the
importance of the witness' testimony in the prosecution's
case, whether the testimony was cumulative, the presence
or absence of evidence corroborating or contradicting the
testimony of the witness on material points, the extent
of cross-examination otherwise permitted, and, of course,
the overall stre ngth of the prosecution's case.
475 U.S. at 684 (citations omitted).
testify without aid of hypnosis (that is, from actual memory) from
those things about which she could testify only after being
hypnotized. Unless this sorting process reveals Significant
variations, the error Should be deemed harmless.*
witness's testimony on any major point. 9880 F.2d at 10, n.10: We
made this observation despite defendant's contention that the
witness's belief in her post~hypnosis testimony had been enhanced
by the hypnosis. See Byrd, 686 F. Supp. 743, 771 (E.D. Mo. 1988).
Similarly, in Williams V- _Armontrout, 877 F.2d 1376 (8th Cir.
1989), cert. denied, 110s. Ct. 1140 (1990), we concluded that even
though hypnosis had rendered a witness's in-court identification
‘of the defendant unreliable, habeas relief was not warranted
because this identification "did not contrib
ute to the conviction."
Id. at 1380-81. °- . -- ; et .
oe © Vet sme e
-6-
Dlo
We therefore vacate the judgment of the District Court in part
and remand the matter to the District court for further
proceedings.? The District Court already has determined that,
beyond a reasonable doubt, the error here (if indeed there was
harmful error) affected only the penalty phase of the trial, not
the jury verdict finding petitioners guilty as charged.
The court's review of the entire record does reveal,
beyond a reasonable doubt, that the petitioners were
responsible for the robbery homicide for which they were
tried. Their activities in preparation for the armed
break-in and the events which later lead to their
apprehension were fully documented through the testimony
of thirty four prosecution witnesses. However, even
though there is no question of their guilt for the crimes
charged, the court is unable to say with confidence that
the jury would have recommended the death penalty for
each and every petitioner had defense counsel been
informed of Vicki Lehman's hypnosis. Critical portions
of her testimony may have been disregarded by the jury
had they known of the effects of hypnosis, or the trial
court may have deemed some testimony inadmissible
altogether. Cf. Little v. Armontrout, supra (trial
court's refusal to appoint an expert in hypnosis for an
indigent defendant violated due process and rendered the
trial fundamentally (un)fair).
Orndorff v. Lockhart, 707 F. Supp. at 1070. Having reviewed the
record, we are thoroughly satisfied, as was the District Court,
that the harmful error here (if any) goes only to the imposition
of the death penalty and not to the jury verdict finding
petitioners guilty of capital felony murder. The evidence of.
petitioners' guilt, even without Vicki Lehman's testimony, is
overwhelming.
as resolution of the due process claim would not affect in any way
our disposition of this appeal.
-7J-
07.
i]
Lockhart argues that, because the District Court found error
affecting only the penalty phase of the trial, the court erred in
ordering that the writ of habeas corpus issue unless the state
either retries petitioners or commutes their death sentences to
life without parole. We agree. In a habeas case, no less than any
other, the remedy must be commensurate with the harm. Accordingly,
if in light of this opinion the District Court finds on remand that
the use of Vicki Lehman's testimony was not harmless error insofar
as its effect upon the jury's recommendation that petitioners
receive the death penalty is concerned, the court's order granting
habeas relief should give the state the option of either conducting
a new sentencing proceeding or reducing the sentences to life
without parole. See Pickens v. Lockhart, 714 F.2d 1455, 1469 (8th
Cir. 1983).°
We have considered petitioners' additional claims of error and
find them to be without merit.
For the foregoing reasons, the judgment of the District Court
is affirmed in part, vacated in part, and the matter remanded for
further proceedings consistent with this opinion.
“tn its cross-appeal the state also argues that the District
Court erred in granting habeas relief to defendants Orndorff and
Clines because they had requested the District Court not to
consider any claim that would result only in the commutation of
their death sentences to life imprisonment without parole, and to
defendant Richley, who had moved the District Court:-to dismiss his
habeas petition. However, in the joint reply brief filed by all
four petitioners, they argue that the District Court did not err
We take this to
constitute an abandonment by Orndorff, Clines, and Richley of the
positions they took in this regard in the District Court, which
abandonment renders the issue moot and thus not properly before us
in granting habeas relief to all of then.
in this appeal.
-8-
o%
A true copy.
Attest:
>
|
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|
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OF APPEALS,
COURT
o
W«
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CLERK,
Pa x - =
“RA
V. No. PB-C-84-300
JAMES WILLIAM HOLMES
V. No. PB-C-84-301
A.L. LOCKHART, Director of the
Arkansas Department of Correction
HOYT PRANKLIN-CLINES
V. No. PB-C-84-302
A.L. LOCKHART, Director of the a
Arkansas Department of Correction
DARRYL V. RICHLEY
v. ‘Gee No. PB-C~84~303
A.L. LOCKHART, Director of these:
Arkansas Department of Correction.
\
©
ys
.
iota
IN THE UNITEDSSTATES DISTRICT ,COURT
RESPONDENT
PETITIONER
RESPONDENT
PETITIONER -
RESPONDENT:
orl ee
«* >
RESPONDENT :”
.
.
Ag
-
2 aif -s
Pg Sag > bate
Baste ER
5g ‘that if the assumed error was Evacmie a8, it SS
| #3
(red
at cite $ nyt:
ae Bo: REN, Z
i nae 1062, 1069 (E.D.Ark. 1988). “the 6 Court OP RDS ee ‘Yeversed,
could not be
PRS Ponies eas Oh gate:
Fe Age for habeas corpus relief. “eats 'v. Lockhart, 906 F.2d
1230 (8th Cir. 1990). The Court of Appeals directed me to
a Vicki Lehman‘s pre-hypnosis statements with sher trial
estimony with "an eye toward sorting those things about which [Ms]
hman could testify without aid of hypnosis (that is, from actual
Fpenory) from those things about which she could testify only after
being hypnotized." Id. The Court of Appeals stated that “[{uJ]nless
his sorting process reveals significant variations, the error
ieee be deemed harmless." Id. at 1232.
In compliance with the mandate of the Court of Appeals, I have
carefully compared the two pre-trial statements of Vicki Lehman
with the trial testimony. Her accounts of- the robbery-murder on
the night of January 8, 1981 were given in question and answer
form. The first interrogation was by Don Townsend, a Benton County
Deputy Sheriff. It took place slightly more than three hours after
Brox father was murdered and began a few minutes after 1:00 A.M. on
the morning of January 9, 1981. The wertten transcript of the
B snvecZogatiia is twenty-six pages in length. The answers to the
-" au.
gj ceerttons. posed to Miss Lehman were intelligent and; seogent. They
is 4
° ~
oz =. gq Sf? o . a ek ey SS sao
‘
were also concise. The second interrogatior ‘five; days later on
% ia —
edger an conducted by-. ‘théfprosectt ing Btesrney, David
= e; nye as
z. BEE A oe TER Po
aes
estion anid’ answerstorm ieieconaecansctipt.
Ss > Seine HES ie . ee eon! FP pce 35 we PAe fiee ee oe
et eS 2 ee ‘ Bim ee ters AeeoTs A Qin, Sra
Meferences
Bf acegines gion ‘by the witness. There are a Le
Ns ey : een oe oa
aiffézences, which would be expected in intgzeouaed
different occasions. At any rate,
ie . pe
statements are not an issue because both*);were*= ‘taken before
hypnosis. The issue is whether there was significant’ variation
between the trial testimony and the January 9 and January 14
eatatements.
In contrast to the other interrogations, Ms. Lehman‘’s trial
i
4
t
|
i testimony was one hundred forty pages in the trial transcript. Her
direct examination consisted of 80 pages and the four cross-~-
H examinations consumed 60 pages. The in-trial questioning of Miss
4 Lehman was obviously much more detailed than the two prior
interrogations. She had gone to her home and participated in 4
f reenactment of the crime. Between her initial statements and the
trial, the witness had eight months to. reflect on events
i surrounding the murder without the enormous stress that must have
¥ surrounded the statements of January 9 and January 14--one right
after the murder and the other right after the funeral.
The prosecutor, in preparing the trial testimony of his
principal witness, obviously spent a great deat: “Of” time on his
direct examinaticn and went into more detail on. evsntasy He fleshed
Ala shige rE fen
t out.the bare ‘bones accounts of the carl ter fatereogattone. Such
s ee ra So “Saf ue : om bei anid 2 > oe Z mt. %
a ‘procedure is” nomial ° merertens after
ma, ary %: ¥? by a of.
interrogator, {guinterested in obtai
crs. -
"ee
: las Soi Ws
BEA , Bt. “ Rese ae: > v«
=the’ : Prosecutors BE Sfforts. are. ——
sp ey ic: ar PR at rea nies
and;detailed, account;
Bf inetance, she testified at trial as follows:
Appeals has held to ba necessary.
I do not find ‘the -eignificant variation which ;
. a
PB 3 eae QS
a
Beno witness simply elaborated on her previous Agtatements,
ee 4
: aos
a* arts *
e ‘
ry MMos S ag
petitioners point out saveral instances of variation between Ms.
Lehman's
trial testimony and her previous statements.
a.
For
"There were like
three masked men and they all had guns and for an instant they were
| a pointed right at me.” (T. 3029). It is true that in her
‘
Q.
A.
A.
Q.
initial interrogation, she stated:
They got into the house. Then what happened?
Then a couple of them were wrestling with him, they
just kind of rolled over to the edge of the dining
room table and I was just standing there and I saw
the other two had guns on me.
(T. 4161-62). On January 14, she stated:
At that time I could see dad and I could see him
pushing back at the door and I...and as I was going
to start pushing back at the door with him then
that’s when they all just came in. They were...from
over there I could see three of them just all
standing there with their guns and I just said what
do you want, I can remember saying what do you want
and then they were just fighting with dad.
(T. 4190). Later she stated:-
Do you remember seeing any of those boys with guns
in their hands? The two that were fighting with
him? ee 3 es:
é
I can’t recall. The only thing.I can recall®is
whenever I saw the: gun was...I ‘know two of ‘them
standing there at me holding guns.
fighting
’
<3 4c5
on the floor.
AN oo
as
ans -
. ~ *ebyy + s¢ +o ten -
7 3 ' aor 5403, “esgyGa® ‘
WBsigniticant, if it is actually a variation. That one of the men
was identified as asking about the on does not exclude the fact
at the other two may have asked similar questions.
Another purported variation has to do with tail lights on the
| ake car. (T. 3054, 4169, 4186). This information was
uont to assist in apprehension of the suspects and has no
relevance to the crime and the punishmont assessed by the jury.
flarly, in her initial interview, Ms. Lehman could not remember
ything about the footwear of the man who was holding her. Like
i tail light information, the police officer was making this
Bouiry to aid in the man’s apprehension. It had nothing to do
th guilt or punishment. This interrogation was made when the
was under a great deal of stress. It is not surprising
| i she later could not remember every detail about the man’s
appearance.
t After carefully considering the three interrogations of Ms.
hman, I have concluded that there is a remarkable consistency in
(. recitations on all three occasions. There are no significant
acc in her trial testimony and the previous interrogations.
The questions were more detailed and her answers were more
Botatied. Petitioners have- failed to shoulder the burden
rae by the Court of Appeals. They have failed to show any
ignificant variation in her pre-hypnotic and posthypnotic
arena te
: slag Sw - :
Ph ANS Te 1. ver
ct.
i The habeas petitions by Michael R. Orndorff, James William
Holmes, Hoyt Franklin Clines and Darryl v. Richley are therefore
| denied and dismissed.
This 29th day of April, 1991.
4 J
aa _f (LLL. YL yg A
iENRY WOOD -5. District aos
THIS DOCUMENT ENTERED ON DOCKET SHEET IN
COMPL nS Do 58 AND/OR 79{a) FRCP
ON BY
a
FOR THE EIGHTH CIRCUIT
No. 91-3510
Michael Ray Orndorff, *
+
Appellant, *
*
Vv. *
+
A. L. Lockhart, Director, * Appeals from the United States
Arkansas Department of * District Court for the
Correction, * Eastern District of Arkansas.
*
Appellee. *
No. 91-3512
James William Holmes, *
*
Appellant, *
*
Vv. *
*
A. L. Lockhart, Director, *
Arkansas Department of *
Correction, *
*
Appellee. *
No. 91-3513
Hoyt Franklin Clines, *
+
Appellant, *
+
*
Vv. *
; 7
A. L. Lockhart, Director, *
Arkansas Department of *
Correction, *
- *
Appellee. *
Arpensdin. F
a
“ ri]
Darryl Richley, *
*
Appellant, *
*
vV. *
7
A. L. Lockhart, Director, *
Arkansas Department of *
Correction, *
*
Appellee. *
Submitted: June 8, 1992
Filed: July 15, 1993
Before RICHARD S. ARNOLD, Chief Judge, HENLEY, Senior Circuit
Judge, and MAGILL, Circuit Judge.
HENLEY, Senior Circuit Judge.
We visit this habeas case for the second time. Michael Ray
Orndorfft, James William Holmes, Hoyt Franklin Clines, and Darryl V.
Richley (petitioners) appeal from the -judgment of the district
court denying their requests for habeas relief under 28 U.S.C. §
2254. Petitioners were convicted of capital murder and were
sentenced to suffer the death penalty. The district court found
that at trial petitioners were denied their sixth amendment right
to confront the witnesses against them. The court granted
petitioners partial relief, finding that this error was harmless
with respect to their convictions and affected only their death
sentences. Respondent Lockhart concedes the error at trial, but
contends this error was harmless with respect to the convictions
and sentences. We affirmed that part of the decision denying
-2-
Fa
ek Ne eee een ee eS
4+ Sea auu rcemanaqeaq ror IXIUrCiMec CVS szuciatciuis Mate eee
. Lockhart, 906 F.2d 1230 (8th Cir. 1990), cert. denied, 111 S. Ct.
1338 (1991). On remand from this court, the district court held
that the error was harmless with respect to the petitioners’
sentences and denied their requests for habeas relief. We affirm
in part and reverse and remand in part.
Le
Petitioners broke into and robbed the house of Don Lehman in
eee fies
Rogers, Arkansas. In addition to stealing several hundred dollars
and some guns, one or more of the petitioners shot and killed Don
Lehman and threatened to kill his wife and daughter, who were in
"rr a
” ~ .
the house at the time.
At trial, Don Lehman’s daughter, Vicki Lehman, testified in
great detail about the murder-robbery. In addition to her trial
RP ee tf ee ey Tr”
testimony, she gave the police two statements which were recorded
and transcribed: one within hours after the murder and another
row we
several days later. Although there are some variations between her
trial testimony and her two pretrial statements, there are many
Similarities in her descriptions of what happened that night.
Vicki Lehman has consistently stated that at approximately
9:45 on the evening of January 8, 1981, she heard the front
doorbell ring and got out of bed to go to the door. Vicki met her
father in the hall on the way to the door and followed closely
behind him. When her father unlocked the door, four men wearing
ski.masks forced their way into the house and attacked him. Vicki
was held at gunpoint by one of the men while two or three others
attempted to subdue her father who was struggling. Vicki was
: ordered to kneel down, face the wall, and put her head in her
hands. She could sense that the fight had moved down the hall and
into the bedroom. Vicki then heard two gunshots. Moments later,
one of the men grabbed her by the back of the hair and led her
through the house, searching for money and other valuables.
-3-
F3
follows: (1) the tallest man who wore wire rim glasses that were
visible through the ski mask, later identified as petitioner
Richley; (2) the heavy or biggest man, later identified as
petitioner Holmes; (3) the short or smallest man, later identified
as petitioner Orndorff; and (4) the medium-sized man who removed
his mask during the robbery, later identified as petitioner Clines.
She got a very good look at the man who removed his mask, and
within hours after the murder helped an investigator create a
composite drawing of that man. Several days later she positively
identified petitioner Clines in a line-up.
Vicki has also consistently described the sequence of events
as she was led through the house. After she heard the gunshots,
the tallest man with the glasses grabbed her and demanded to know
where some money was. This tal] intruder never let go of her until
he left and constantly had his gun pointed at her head or back.
She led him into her bedroom and produced an envelope containing
Some money she had received for Christmas. From her bedroom, Vicki
was taken back down the hall, upstairs to a loft or office area
above the main room, and then back downstairs. She was then led
into her parents’ bedroom where she saw her father laying
motionless on the bed and her mother cowering in the corner. While
in that bedroom, the medium-sized man found several hundred dollars
in a drawer. He became excited and removed his mask. Then he and
the heavy man began tearing out drawers and throwing clothes about
the room searching for more money. The smallest man then suggested
that she be allowed to call an ambulance for her father.
Vicki was taken into the kitchen area to use the phone.
Before she was able to make the call, however, the medium-sized man
grabbed the phone from her and stated she was not going to call
anyone. Vicki then stared eye-to-eye with this unmasked man. All
four attackers were in the kitchen area and they demanded more
money and guns. Vicki directed them to the gun cabinet in the
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; living room. The tallest man, still holding Vicki, orderea two o1
‘the attackers, the smallest and medium-sized man, to get in the car
and ordered the heavy man to remove the guns from the cabinet. The
heavy man took the guns out to the car and the tallest man
followed.
The police arrested all four petitioners within several days
of the murder. After a joint trial, petitioners were convicted of
armed robbery and capital murder. The death penalty was imposed on
all four.' Petitioners exhausted their state remedies and filed
petitions for habeas corpus relief in federal court. Petitioners
raised several claims in their habeas petitions, but only one was
found to have merit.
After petitioners had appealed to the Arkansas Supreme Court,
they discovered that Vicki Lehman had been hypnotized prior to
trial in an attempt to enhance her memory. The prosecutor had
arranged for this hypnosis, but failed to inform the defendants or
the trial court. In their habeas petitions, petitioners claimed
they were denied their sixth amendment right to confront the
witnesses against them because they were denied the opportunity to
2 The district court
cross-examine Vicki Lehman about the hypnosis.
found that the prosecutor’s failure to inform the defendants about
this hypnosis was constitutional error. The court further found
that this error was harmless with respect to the petitioners’
convictions of capital murder, but held that the error was not
In Arkansas, a person convicted of capital murder may receive
the death penalty or life imprisonment without parole. Ark. Code
Ann. § 5-10-110 (1987) (“A person commits capital murder if. .
he commits ... robbery . . . and in furtherance of the felony
. « he or an accomplice causes the death of any person under
circumstances manifesting extreme indifference to the value of
human life.").
2*Tn all criminal prosecutions, the accused shall enjoy the
right .. . to be confronted with the witnesses against him." U.S.
‘Const. amend. VI.
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harmless with respect to the petitioners’ sentences. Orndorff v.
Lockhart, 707 F. Supp. 1062 (E.D. Ark. 1988).
On appeal from that decision, we affirmed the district court’s
holding that the error did not warrant reversal of the convictions
because "(t)jhe evidence of petitioners’ guilt, even without Vicki
Lehman’s testimony, is overwhelming." Orndorff, 906 F.2d at 1233.
We remanded the case, however, with directions for the district
court to reconsider the question whether the error was harmless
with respect to the petitioners’ death sentences. Id. On remand,
the district court found the error harmless and denied petitioners’
request for habeas relief. Petitioners appeal from that decision.
II.
We begin with the premise that when reviewing a constitutional
violation for harmless error, courts traditionally required "the
beneficiary of a constitutional error to prove beyond a reasonable
doubt that the error complained of did not contribute to the
verdict obtained." Chapman v. California, 386 U.S. 18, 24 (1967).
The Supreme Court has recently altered this premise, holding that
the correct harmless error standard in most habeas corpus cases is
“whether the error ‘had substantial and injurious effect or
influence in determining the jury’s verdict.‘" Brecht v.
Abrahamson, 113 S.Ct. 1716, 1722 (1993) (quoting Kotteakos v.
United States, 328 U.S. 750, 776 (1946).3 This court has recently
noted the question whether the Brecht standard applies if the state
courts never considered the harmless error issue because they found
no error. Hoversten v. Jowa, No. 92-2402 (8th Cir. July 13, 1993).
In Hoversten, however, this court declined to answer that question
because the error was not harmless under either standard. Id. slip
op. at 6. We now reach the unresolved question.
‘After this case was argued and submitted, the Supreme Court
decided Brecht. At this court’s request, the parties filed
Supplemental briefs discussing the effect Brecht may have on this
case,
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: Brecht reached the Supreme Court after two state appessace ,
‘courts, a federal district court, and a federal court of appeals
had reviewed the error under the Chapman harmless error standard.
Petitioners argue that the Court declined to apply the Chapman
harmless error standard on collateral review because to do so would
undermine “the finality of convictions that have survived direct
review within the state court system.“ Brecht, 113 S.Ct. at 1720
(citations omitted). The Court noted that “({sjtate courts are
fully qualified to identify constitutional error and evaluate its
prejudicial effect on the trial process under Chapman," and that
"it scarcely seems logical to require federal habeas courts to
engage in the identical approach to harmless~-error review that
Chapman requires state courts to engage in on direct review." Id.
at 1721.
We believe the Brecht rule is based largely on the notion that
because the state courts can properly apply the Chapman harmless
error standard on direct review, the federal habeas courts need
only review those decisions under the Kotteakos harmless error
standard. In the case before us, however, the state courts did not
have the opportunity to review the error at all, and the federal
habeas court was the first court to review the constitututional
error under the Chapman harmless error standard. As a result, we
find that rule announced in Brecht does not apply and that the
Chapman harmless error standard is the appropriate test in this
case.
We therefore must determine whether the error in this case
“was harmless beyond a reasonable doubt." Chapman, 386 U.S. at 24.
More specifically, in the context of this confrontation clause
violation, “{t]he correct inquiry is whether, assuming that the
damaging potential of the cross-examination were fully realized, a
reviewing court might nonetheless say that the error was harmless
beyond a reasonable doubt." Delaware v. Van Arsdall, 475 U.S. 673,
684 (1986) (listing five factors a reviewing court should evaluate
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In remanding this case, we instructed the district court to
conduct its inquiry using the harmless error analysis set forth in
Van Arsdall. We noted that the court should compare the pre-
hypnotic statements to the trial testimony “with an eye toward
sorting out those things about which Vicki Lehman could testify
without the aid of hypnosis (that is, from actual memory) from
those things about which she could testify only after being
hypnotized." Orndorff, 906 F.2d at 1232. We further stated that
“(ujnless this sorting process reveals Significant differences, the
error should be deemed harmless." id. (footnote omitted). The
district court found there to be a “remarkable consistency" jin
Vicki Lehman‘’s recitations of the murder-robbery and therefore
concluded the error was harmless.
After the district court made its ruling on remand, the
Supreme Court decided Yates v. Evatt, 111 S. ct. 1884 (1991).
'
}
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I Petitioners argue that Yates changes the legal test announced in
Van _Arsdall and therefore the case must be remanded because the
Hi district court’s legal analysis is flawed.‘ Respondent Lockhart
argues that Yates deals with harmless error in the context of an
' improper presumption and therefore is not relevant to this
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confrontation clause harmless error analysis. We find that Yates
is consistent with Van Arsdal] and does not require us to remand.
In Yates, it was determined that the trial court’s jury
instructions created certain presumptions which improperly shifted
the burden of proof from the prosecution to the defendant. In
‘After Yates was decided, petitioners requested the district
court to reconsider its decision. The district court denied this
request stating, "The Court will not resolve this question because
it is a matter for the Court of Appeals." Orndorff v. Lockhart,
No. PB-C-84-300 (E.D. Ark. Oct. 7, 1991) (order denying motions for
new trial or hearing).
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shifting jury instruction was harmless, the Court employed a two-
step approach. In essence, a reviewing court must first establish
“what evidence the jury actually considered in reaching its
verdict." 111 S. Ct. at i893. The purpose of this first step is
to determine what evidence may have been considered as tending to
prove the improperly presumed fact. The second step is to “weigh
the probative force of that evidence (determined in the first step]
as against the probative force of the presumption standing alone."
id. The Court concluded that the proper test is “whether the jury
actually rested its verdict on evidence establishing the presumed
fact beyond a reasonable doubt, independently of the presumption."
Id.
Petitioners argue that the methodology used in Yates should be
“extrapolated" to the present harmless error ana’ysis of this
confrontation clause violation. They argue that Yates requires a
reviewing court to first determine what evidence the jury
considered on the issue of the death sentence. According to
petitioners, the court must then determine if there are any
differences in the pre- and post-hypnotic testimony of Vicki
Lehman, and finally determine whether the verdict of death actually
rested on the hypnotically enhanced testimony. We agree with
petitioners that Yates is instructive of our analysis, but we do
not agree that Yates changes the Van Arsdal] analysis.
In analyzing a violation of the confrontation clause for
harmless error, the Court in Van Arsdal]l stated that:
Whether such an error is harmless in a particular case
depends upon a host of factors, all readily accessible to
reviewing courts. These factors include the importance
of the witness’ testimony in the prosecution’s case,
whether the testimony was cumulative, the presence or
absence of corroborating or contradicting testimony of
the witness ‘on material points, the extent of cross-
examination: otherwise permitted, and, of course, the
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overall strength of the prosecution’s case.
475 U.S. at 684. The fifth factor described in Van Arsdall (the
overall strength of the prosecution’s case) requires us to examine
the evidence presented by the prosecution which the jury may have
considered in deciding to impose the death sentence. In Lufkins v.
Leapley, 965 F.2d 1477 (8th Cir. 1992), we analyzed a confrontation
clause violation for harmless error and cited Yates for the
proposition that “to determine whether the [error] was harmless
beyond a reasonable doubt, we must examine the other evidence
introduced at trial and determine whether it appears ‘beyond a
reasonable doubt that the error complained of did not contribute to
the verdict obtained.’" Id. at 1481.
In sum, our analysis under Yates, Van Arsdall, and Lufkins
must proceed as follows. We must first compare the pre- and post-
hypnotic statements to determine if any “significant differences"
exist. If no significant differences are found, the error is
deemed to be harmless. If, however, significant differences do
exist, we must determine if the variations nevertheless are
harmless. To accomplish that task, we assume that Vicki Lehman had
been cross-examined about the hypnosis, and we also assume that the
damaging potential of that cross-examination was fully realized.
See Van Arsdall, 475 U.S. at 684. That is, we assume the jury was
made aware of any changes in Vicki Lehman’s story after the
hypnosis, as well as the possibility of “confabulation,"
“suggestibility," and “memory-hardening" that is associated with
hypnosis.’ After making these assumptions, we must determine if we
can still say that the error was harmless beyond a reasonable
doubt. To determine whether the defendants’ inability to cross-
examine Vicki Lehman about the hypnosis did not contribute to the
‘The dangers associated with using hypnotically-enhanced
testimony in a criminal trial are discussed in some detail in
Little v. Armontrout, 835 F.2d 1240, 1243 (8th Cir. 1988) (en banc)
(citing Rock v. Arkansas, 483 U.S. 44, 58-60 (1987)).
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. evidence introduced at trial which supported the verdict, as well
as the other factors listed in Van Arsdall.
III.
We review the district court’s harmless error analysis de
novo, as a mixed question of law and fact. See, @.g., Gunn _v,.
Newsome, 881 F.2d 949, 964 (11th Cir. 1989) (en banc); Graham v.
Wilson, 828 F.2d 656, 659-60 (10th Cir. 1987). We therefore begin
our analysis, as did the district court, with a comparison of Vicki
Lehman’s pre- and post-hypnotic statements. On appeal, petitioners
claim Vicki Lehman made 134 post-hypnotic statements which contain
significant variations from her two pre-hypnotic statements. They
contend 83 of the statements are "new" and 51 of the statements are
"changed" from her pre-hypnotic statements. °
Petitioners emphatically claim that Vicki Lehman has been
inconsistent in remembering the number of guns_ she saw.’
Petitioners argue that Vicki’s pre-hypnotic statements indicate
that at different times she saw either two or three guns, while at
trial she testified that all four petitioners had guns.
Vicki Lehman has stated that she remembered seeing the
petitioners with guns at two distinct times during the robbery.
The first instance was immediately after the petitioners forced
their way into the house. Vicki stated in her second pre-hypnotic
statement that when the intruders forced their way in the door,
three of the men pointed their guns at her for an instant while the
fourth man attacked her father. Of those three men with guns, one
then turned to the fight with her father, the tallest man grabbed
twe refer to these statements as “New Statements Nos. 1- ~83" and
"Changed Statements Nos. 1-51" as they are numbered in petitioners’
briefs.
™his claim is made in Changed Statement No. 1.
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4aicaea 241i MeAUW £6BEKL ME a Re ee CASE 8 ee ee ques *.
with his gun. In her first statement, Vicki stated that two men
immediately began wrestling with her father and the other two had
their guns on her. In any event, Vicki has never wavered from her
statement that petitioner Richley, the tallest man, had a gun. She
saw the gun pointed at her and felt it pressed to her head and back
throughout most of the ordeal. In addition, she has stated twice
(once in the first pre-hypnotic statement and once in the second)
that petitioner Orndorff, the smallest man, had a gun when he first
entered the house.
The second instance Vicki remembered seeing guns was later
that night when all four panes ioners were with her in the kitchen.
She recounted this event consistently in both of her pre-hypnosis
statements. Vicki was taken to the kitchen from her parents’
bedroom to call an ambulance, but petitioner Clines intervened and
ripped the phone from the wall. Moments later, three of the
petitioners stood in front of her with their guns. At trial, Vicki
testified that she believed at that moment all four men had guns in
their hands, one at her back and three in front of her. She
testified later on cross-examination, however, that it was possible
that there were only two guns pointed at her, but “it seem[(ed)
like" there were three guns in front of her.
In sorting through these statements, we conclude, as did the
district court, that there is no material or significant difference
between Vicki Lehman’s pre- and post-hypnotic statements concerning
the number of guns involved in this crime. She indicated before
and after hypnosis that at least three of the petitioners, and
possibly all four, carried guns.
Petitioners argue that Vicki Lehman’s pre-hypnotic statements
indicate that only three of the petitioners were in the bedroom at
the time Don Lehman was murdered, but that her trial testimony
F eletietited ——— ~~“ ~~sc—ClU OO OO Oe
first pre-hypnotic statement, Vicki clearly indicated that the
tallest man, Richley, stayed with her in the hall while the others
were in the bedroon. In her second pre-hypnotic statement,
however, Vicki was less sure that the tall man stayed with her.
She indicated that she had her head down on the floor and that he
could have gone into the bedroom with the others. Moreover, her
second
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