# Opposition Brief — Norris v. Orndorff > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_1684%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1994 - **Citation:** 511 U.S. 1060 ## Text [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 i i Ces CC h6eeedesevreeecetccecéceeccecececéene iv tt CCT e Seo e a web E.6 66 6666 6666 6eecccceeccececcceacun v-vi CCC eC eh we webb 6660600 Cease ce reecécecccetecekceensae vii i ne 6 oss es eee ecenewnesceteeeeéentunen vii Pt Mr Me cc ns eeeeeeescoecetececeveceecesos viii-ix REASONS FOR DENYING THE WRIT THE COURT OF APPEALS' DETERMINATION THAT AFTER BRECHT THE CHAPMAN HARMLESS ERROR STANDARD STILL APPLIED TO THIS HABEAS CASE, Dt Pee SeCCRRAUOE HOES ONU UU 0666606060 60s6eeers 1-9 De CSecC ch een ene ee ew 68 ON 06 6666665 0-0 60 ceccecerecéeceres 10 APPENDIX A: Eighth Circuit Opinion, ts Sete hn ewe ehaebeb ene ee esecceecececeecscech A-1 APPENDIX B: Eighth Circuit Order, i a) eh eh oe en db e660 0.0 e666 066 066 46% 6b be we B-1 APPENDIX C: United States District Court Opinion, i ee ete ee ee eek ae ke ene ek dae eee ous 6 bbb hx C-] APPENDIX D: Arkansas Supreme Court Opinion, ih nee eee Cees ee be Ube 6460 66 600k e 66 6660 cerewenci pI iii TABLE OF AUTHORITIES “ASES PAGE .) a i Ct) oF nD 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. S WO ty + A Orndorff v. Lockhart, 998 F.2d 142 e. co ct ~~ ~ | —_ ve - — 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 La - & — eke CN a¢ aa 1° i) 7 oO —- ~~ = wes “~ r= | = - . 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. * 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 - ™— 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 - - - | Hoyt Franklin Cline: oe —~ Appe Vv ; . Je 2Cckh:; t ae 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 ‘ ‘ ‘ ‘ ‘ ‘ — ‘ tL. . rt ‘ ‘ ‘ ‘ ‘ . — . + 4 ‘ 4 + = ’ - ¥ s . . A> . > + + ’ » +) > a " ‘ . - a* - . - > ’ ‘ + ‘ . , . + 7 r i i Vv « P 4 f 4 10 + 7 ? Ages ‘ 140% 10 4 : 4 P . . , = . . as 2 \ 4 : ; . . : : “4 ; = + — 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 | ) O ry nee an UO aL > =e UO | fx) OF APPEALS, COURT o W« U. 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 ’ sAlipyuosveawesr ve ae ee ee e«--- . 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. -l1li- Fil 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 pre-hypnotic statement indicates that she was not positive that the man who originally grabbed her was the same man that grabbed her after the shots were fired. At trial, Vicki admitted on cross-examination that it was possible that not all of the petitioners were in the bedroom at the time she heard the shots fired. Perhaps the most dramatic addition to Vicki Lehman’s pre- hypnotic statements is her trial testimony about the behavior of petitioner Orndorff while inside the house.’ At trial, she described Orndorff as “wirey acting" and “squirrely-acting." She testified that Orndorff liked to play with the little toys located on a bar in the main room and specifically testified that he liked to pull down the lever on the toy slot machine. There is no mention of this behavior in her pre-hypnotic statements. She also stated that “this little guy, the guy who was darting around all night, he kind of ran through there and swung on a chandelier and screamed real loud like he was happy or something." This incident allegedly occurred within minutes of Don Lehman’s murder as Vicki was being taken into the kitchen to use the phone. The only pre- hypnosis mention of Orndorff’s behavior. in this regard was in response to a question by the police about the broken glass in the dining room. Vicki replied, “This happened later right before they left. He [referring to Orndorff]) just went through there and 'New’Statements Nos. 28 and 29. New Statements Nos. 31-36, 40, 41, 80 and 81 and Changed Statements Nos. 20 and 38. -l13- FIZ * occurred in her parents’ bedroom while her father lay dying on the | ee aa aaa: ipa yl Oe Pg POO EP ge ge age TN gy Aa pe Raamtaa grabbed it . -" At trial Vicki also descrined am s1wsncesre wore ; bed. She stated that the smaller guy was kind of kicking around through the -- through the clothes . . . and somebody commented that they’d better get out of there, that the neighbors had probably heard the guns and the smallest guy looked out the window. I can remember seeing him look out the window and he said something, I’m not real sure what he said, something about, ‘The neighbors will see us,’ or something. This incident is not mentioned in either of the pre-hypnotic statements. i Petitioners also claim that Vicki Lehman changed her 5 statements regarding petitioner Holmes’ involvement. At trial, Vicki testiried that after the phone was ripped off the wall, all ' four petitioners were with her in the kitchen “and they said, ‘Where’s any more money or where’s some jewelry.’ I can remember the big guy going, ‘Guns. Guns. We know you have guns./‘"'® | Petitioners claim this testimony is significantly different from her first pre-hypnotic statement in which she indicated that all k three petitioners standing in front of her at that time demanded the guns, and from her second pre-hypnotic statement in which she | said that the unmasked man, petitioner Clines, demanded the guns. Although her trial testimony is inconsistent with her second pre- i hypnotic statement, it is not significantly different from her first pre-hypnotic statement in which she indicated that petitioner : Holmes was one of the three men standing in front of her demanding guns. At trial, Vicki testified that petitioner Holmes was the first one on her father when the petitioners forced their way through the ~hanged Statement No. 44. -14- Fy i aaa aaa ae + wwe o vetationers claim TNAS 45 GB BA yssssewmssre weemer ge - pre-hypnotic statements. In both the pre-hypnotic statements, however, petitioners Holmes and Clines were immediately on her father as soon as the door opened and petitioners Richley and Orndorff stayed by her. The fact that at trial Vicki identified Holmes as being the first of two attackers who immediately pounced on her father is insignificant. Some of the statements identified by the petitioners are not of any real consequence to the jury’s determination of the sentence for various reasons. Some deal with events before the intruders broke into the house” or after the intruders left." Several of the statements contain physical descriptions of the intruders" and, in particular, their shoes.” Others are descriptions of events that occurred during the robbery and are simply not new or changed. "® We can describe the remaining new or changed statements as adding detail, color, vividness, and perhaps credibility to Vicki Lehman’s pre-hypnotic statements. Some of these statements describe in greater detail what occurred immediately after the petitioners forced their way into the house.'’ Others add detail "Changed Statement No. 2. "New Statements Nos. 63-66 and 83. "New Statements Nos. 49-62 and Changed Statements Nos. 45 and 46. “New Statements Nos. 37-39. “Changed Statements Nos. 13, 14 and 47-50. ‘New Statement No. 30 and Changed Statements Nos. 32-37 and 42. "New Statements Nos. 1-12, 71-73, 78 and 79 and Changed Statements Nos. 3-8 and 15. SM SES AS EMER BAYER HE te ee oooweew ew oe ee ee a en Pe) ore ey Circumstances existed, aiiu Luar aay MAvsayaling CilCuUmecaivcce existed. The error in this case did not contribute to petitioner Richley’s death sentence beyond a reasonable doubt. We also find that the prosecution’s case against petitioner Clines for imposition of the death penalty was strong and that few if any of the variations in Vicki Lehman‘s testimony were material to the prosecution’s case against Clines. Vicki’s pre-hypnotic statements consistently identified Clines as one of the two men immediately upon her father and consistently placed him in the bedroom at the time of the murder. Moreover, Vicki consistently described Clines as the man who ripped the phone from the wall and prevented her from calling an ambulance for her father. The jury found all three aggravating circumstances existed and unanimously found that mitigating circumstances did exist by virtue of Clines’ electrocution” and his excessive drinking. One or more of the jurors found that Clines suffered from a personality change after Vicki Lehman’s testimony which may have affected the jury’s decision to sentence Clines to death, we can say beyond a reasonable doubt that the error in this case did not contribute to petitioner Richley’s death sentence. We find that the prosecution’s case against petitioner Orndorff for imposition of the death penalty was the weakest in this case. _We also find that the variations in Vicki Lehman’s testimony about Orndorff’s behavior were the most significant. The jury found that only two of the three aggravating circumstances existed (the jury did not find that Orndorff created a great risk _ 3In' 1979, Clines was accidentally electrocuted while at work. “At the;penalty phase of the trial, evidence ‘was ‘submitted that .Clines --began drinking... excessively -and--experienced a drastic personality change as a result of the accident. The prosecution also presented evidence that even before the accident, Clines drank excessively and had been convicted of robbery. -19- FI9 ¢ the electrocution. Because there are no Significant variations in Of deatn tO @ pespun were wnrmn- === - jurors found that two mitigating stvemente existed (that ¥ Orndorff was acting under unusual pressures or influences or under i the domination of another person and that oOrndorff was an accomplice and his participation was relatively minor). We cannot say beyond a reasonable doubt that the variations in Vicki Lehman’s | testimony did not contribute to the jury’s decision to sentence Orndorff to death. Without Vicki Lehman’s descriptions of Orndorff | playing with toys, swinging from the chandelier, and looking out the window for the neighbors, the jury may have sentenced Orndorff | to life imprisonment rather than death. We therefore affirm the district court’s denial of habeas : relief to petitioners Richley, Holmes, and Clines. We reverse the denial of habeas relief to petitioner Orndorff and, in accordance with our previous decision, Orndorff, 906 F.2d at 1233, we remand the case to the district court with instructions that the court’s order granting habeas relief should give the state the option of conducting a new sentencing proceeding or reducing the sentence to life without parole. RICHARD S. ARNOLD, Chief Judge, concurring in part and dissenting in part. For the reasons given by the Court, I concur in reversing the denial of habeas corpus relief to Michael Ray Orndorff. I concur also in denying this relief to Hoyt Franklyn Clines and | James William Holmes. As to the imposition of the death penalty on Darryl V. Richley, however, I respectfully dissent. I would grant Richley the requested relief because the constitutional error -- the denial of the chance to cross-examine Vicki Lehman about her hypnosis -- was not harmless beyond a reasonapie doubt. I disagree also witn the Court’s nolding that our prior ruiingd in Orndorff v. Lockhart, 906 F.2d izsv (8th Cir. 1990), cert. denied, 111 S. Ct. 1338 (1991), prevents us from considering the -20- FAO ' hypnotized witness. * ie i As the Court has explained, using in a criminal prosecution the testimony of a previously hypnotized witness, even when the { defendants were not given the chance to cross-examine the witness about the hypnosis, does not require automatic reversal. Rather, the Confrontation Clause error, the use of this testimony, is subject to a harmless-error analysis. Delaware v. Van Arsdall, 475 U.S. 673 (1986); Lufkins v. Leapley, 965 F.2d 1477, 1480-81 (8th Cir.), cert. denied, 113 S. Ct. 271 (1992); see also Williams v. Armontrout, 877 F.2d 1376, 1379-81 (8th Cir. 1989), cert. denied, 493 U.S. 1082 (1990) (due-process-claim). The | Court must find the error to be harmless beyond a reasonable doubt. Van Arsdall, 475 U.S. at 684; Chapman v. California, 386 U.S. 18, 24 (1967). Van Arsdall provides a list of five factors to be considered in analyzing the harmfulness of Confrontation Clause errors. Van Arsdall, 475 U.S. at 684. Before applying the Van Arsdall criteria to Richley’s claim, however, I first consider this Court’s interpretation of the holding of our earlier decision in this case, Orndorff V. Lockhart, supra.’ In that decision, we said that the Confrontation Clause error -- the deprivation of the chance to cross-examine Lehman about her hypnosis -- “is not harmful simply because the jury might have found her testimony less creaipie nad defense counsel been apie to probe the issue ofr her hypnosis on cross- examination.“ Orndorff, 906 F.2d at 1232. The Court today ‘Although in Orndorff the Court did not decide whether there - was a violation of the Confrontation Clause, it was not necessary -for it to do so. This was not in issue because the State already had conceded that the use of Lehman’s testimony, without disclosure ‘that she had been hypnotized, was a constitutional error. Orndorff, 906 F.2d at .1232. -21- Fal ‘hypnosis differed from or was more detailed than statements she ee Svsaueicaiy AMLACLD ALVIN LiLAd CMAs, SVE AL Lenman’ s LeEeoesmuvity G4 OA 4 made beforehand, we may not consider, in our harmless-error analysis, those discrevancies and additions serving only to enhance the credibility of her testimony. I do not read Orndorff’s holding as broadly as the Court does. Orndorff held that the mere possibility that hypnosis may have affected Lehman’s testimony by rendering it more convincing did not in and of itself mean that the error was harmful. In that case, we vacated the lower court’s holding that the 137 variations between Lehman’s pre-hypnosis and post-hypnosis statements were “‘inherently prejudicial./" Orndorff, 906 F.2d at 1232 (quoting Orndorff, 707 F. Supp. 1062, 1069 (E.D. Ark. 1988)).* Instead, we required the District Court to analyze these variations. Orndorff, 906 F.2d at 1232. Thus, Orndorff does not require exclusion from our harmless-error analysis of the color, detail, and vividness that Lehman’s post-hypnosis testimony added to her previous statements; it mandates evaluation of the effect of the specific changes and additions on the overall testimony, including, in my view, its credibility. ’The District Court stated that "(ajll 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 [the hypnosis] was inherently prejudicial." Orndorff v. Lockhart, 707 F. Supp. 1062, 1069 (E.D. Ark. 1988). The reason for this holding was the effect of hypnosis on trial testimony. Hypnosis has been known to enhance a witness‘s confidence in her testimony, whether true or imagined, once she has recited it under hypnosis. Id. This tends to make the testimony more convincing ‘tothe factfinder, id., and is’ known as “memory- hardening." Williams v. Armontrout, 877 F.2d 1376, 1380 (8th Cir. 1989). It is also important to scrutinize the particular effects of the post-hypnosis. testimony because hypnosis causes not only memory~hardening, but also the creation of imaginary memories. Id. -22- FID . @Vidence in determining whether the denial of the right to ‘confront the witness was harmful would conflict with Delaware v. Van Arsdall, 475 U.S. 673 (1986). Van Arsdall, like this case, concerned the credibility of testimony. In that case, the Supreme Court addressed whether it was harmful error to prevent the defendant from cross~examining the government’s witness about an unrelated criminal charge against him. Id. at 676, 679. The government had dropped that charge in exchange for his agreement to talk with the prosecutor about Van Arsdall, potentially biasing the witness’s testimony. Id. at 676, 684. In Van Arsdall, as here, the prosecution was allowed "to introduce evidence that was not subject to constitutionally adequate cross- examination." Id. at 684. In both Van Arsdall and this case, the prohibited cross-examination might have enabled the defendants to "cast doubt on the testimony of an adverse witness." Id. And, here, as in Van Arsdall, “the reviewing court should be able to decide whether the not-fully-impeached evidence might have affected the reliability of the factfinding process at trial." Id. Our task is to decide whether the error is harmless beyond a reasonable doubt. It must be harmless even “assuming the damaging potential of the cross-examination were fully realized." Van Arsdall, 475 U.S. at 684. To make this determination, we must consider the impact that the denied cross-examination would have had on Lehman‘s testimony, including its credibility. Cross~examination of Lehman about the effects of the hypnosis on her recollections might have prompted the jury to disregard those parts of her testimony relvina upon new memorfes that arose after hypnosis. see Orndorff, 707 F. Supp. at 1070. Thus, we must be able to considér the color, vividness, and detail added to the post-hypnosis testimony (which may have been the product of memory-enhancement techniques). Although our earlier opinion does not allow us to presume that tne many additions to Lenman’s -23- 2B error harmful, 1t permits us—to_gensider now tne daetais, wwosrvn, * and vividness affectea both tne Substance and credibility of Lehman’s testimony in this particular case. As the Court recognizes, those details which go to the behavior and attitude of the petitioners during the crime could have persuaded the jury to impose the death penalty. Because I interpret Orndorff to permit the evaluation of the effect of specific changed or added statements that add detail on the witness’s testimony, including its credibility, I would analyze under the Van Arsdall factors the testimony that the Court declines to consider. See ante at nn. 11-20, at 14-15. I have therefore done so in reviewing Richley’s clain.’ Il. about her hypnosis was not harmless beyond a reasonable doubt with respect to the imposition of the death penalty on Richley. I discuss the points on which the Court and I agree before turning to how I would apply the Van Arsda}] case’s fifth factor to Richley. I agree with the Court’s analysis of the first four Van *I have also considered this sort of testimony in reviewing the claims of Holmes and Clines. Specifically, I have evaluated the additions to-testimony that made Lehman’s account more detailed, and-those that, by describing her feelings and thoughts during the crime, enbanced both her credibility and the horror of the-crime. For example, I have considered: Lehman’s new trial testimony-~ that : she remembered feeling like she needed to calm down and regulate her breathing, and that she recalled “crunching up" when she heard the gunshots. . New Statements 24-27. Although such statements are legally material under Orndorff, they make no difference as to Holmes and Clines. I believe the jury would have imposed the death sentence on them even without these additions to the testimony. -24- Foy | In my view, the denial of the chance to cross-examine Lehman | ee ee ee a case -- as to each defendant individually.’ I further agree thet we must determine the effect of the error on the factfinding process at trial, Van Arsdal], 475 U.S. at 681, that is, on the sentence obtained, see Chapman, 386 U.S. at 24 (applying harmless-error analysis to the “verdict obtained"). To do this here, we must compare the overall strength of the prosecution’s case for the death penalty with and without the hypnotically enhanced testimony. That is, “we must examine the ether evidence introduced at the trial" to determine whether it affected the sentence imposed. Lufkins v. Leapley, 965 F.2d at 1481 (citing Yates v. Evatt, 111 S. Ct. at 1892). Although I agree with the Court’s statement of the law, I disagree with its application of Van Arsdall’s fifth factor in this case. Richley first argues that Lehman’s post-hypnosis testimony drastically altered the jurors’ perception of his role in the death of her father. At trial, she testified that Richley left her while the shots were fired, Suggesting that he was in the bedroom when her father was killed. New Statements 28 and 29, at App. 86-87. The State argues correctly that in her second pre- ‘However, I would emphasize them more than the Court does. Lehman’s testimony undoubtedly influenced the severity of Richley’s punishment because that testimony was almost the only testimony about Richley’s behavior during the crime and his treatment of her and her family. ‘I also agree with the Court’s rejection of petitioner’s | argument that Yates yv. Evatt, 111 S. ct. 1884 (1991), overruled on other grounds, Estelle vy. McGuire, 112 S. ct. 475, 482 n.4-(1991), alters the harmless-error analysis in this case. Yates is consistent with the van Arsdall test, particularly as an amplification of its fifth factor. Yates required a comparison of the probative force of the evidence the jury considered with the effect of the erroneous presumption given in the jury instructions. id. at 1893. ~- -25- FAS TOES WHEE Ee ease Ce GuvueatIy. APP. 48, 50. BUT Neltner did she know whether he had left -- only that he “wasn’t touching" her then. App. 48. Moreover, she said very Clearly in her first pre-hypnosis statement that Richley stayed with her during the Shooting. App. 17-18, 19, 36. She said that the three other petitioners were in the bedroom, App. 33-34, that Richley was not, and that he “had ahold of me the whole time." App. 34.° At trial, she bolstered her testimony that Richley had left her during the shooting and then came back; she described her remembrance of Richley’s heavy walk and his boots upon his return. Changed Statements 13, 14, 47, and 48, at App. 87-88, 160-61. But before her hypnosis she had said that she did not see Richley’s feet, App. 23. The placement of Richley by her side during the Shooting is key to his defense, particularly Since he had said that he did not want to be part of a murder and he wanted to let Lehman call an ambulance for her father. App. 38, 54. This change in testimony, increasing the likelihood that the jurors would think that Richley was in the bedroom during the Shooting, may well have strongly influenced the jurors in Selecting his sentence, In my view, this change was not harmless beyond a reasonable doubt. Other post-hypnosis statements may have influenced the jury to impose the death penalty because they portrayed Richley as a leader, controlling Lehman and the other men. E.q., New Statements 3 and 9 (Lehman addressing specifically Richley in asking what the intruders wanted); New Statement 7 (asking Lehman who else was home); New Statements 10, 11, 71, 73, 78, and 79 (noting his reactions to the fight and directing Orndorff to go help in the fight); Changed Statement 18 (telling Lehman to hand At trial, she no longer recalled Saying this. App. 191-92. Although this may be a normal memory lapse, it may well be attributable to the hypnosis. -26- FAL EERE EEE EEE “+. Vie domes mune tv vVLiNuUviLiy | NEW SLATeMent 68 (recailing feeling that if she kept talking and searching for money, Richley might not shoot her). Juxtaposition of these post-hypnosis Statements with the post-hypnosis placement of Richley in the bedroom at the time of the murder could also have influenced the jury in sentencing Richley to death. It is true that Lehman‘s pre-hypnosis statements also Showed Richley to be violent and a leader. E.gq., App. 16 (telling Lehman to shut up); App. 18, 45 (leading her by her hair); App. 21 (pushing her hard, pushing gun against her head); App. 37 (Lehman stating that if anyone was the leader, it was probably Richley); App. 45-46 (Carrying a gun). I stil) believe, however, that Lehman‘s trial testimony about Richley’s location during the murder was very likely a decisive consideration in his sentencing (particularly since some of the jurors would have found his participation in the murder to be relatively minor and that of an accomplice, App. 257). Lehman‘s post~-hypnosis trial testimony was vital to the prosecution’s case for the death penalty and unique among the other testimony because of its detailed description of Richley’s behavior and attitude while committing the crime. In my view, this testimony enhanced the strength of the prosecution’s case for the death penalty and therefore is harmful, and reversible, error. A true copy. Attest: CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT. -27- FQ? United States Court of Appeals FOR THE EIGHTY CIRCUIT 35] ; tid f4 ; ; P ; " A Den « , } neoncaring ‘ »} , Are Ms \ 4 ? 4 . ~ , es . ce ss r . A - w I ( at a ~~ we * 7 ba j r --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_1684%3A2. Public record. Not legal advice.