ANNABELLE CLINTON IMBER, Justice.
Appellant Gordon Randall Gwathney was convicted of three counts of murder in the deaths of his estranged wife's mother and grandparents and two counts of attempted murder for the shooting of his estranged wife's brother and an officer. He was sentenced to an aggregate term of life imprisonment without parole plus 40 years. On appeal, Gwathney contends that the circuit court erred (a) in refusing to quash the entire jury panel and (b) in refusing to remove two jurors for cause. He further argues that the circuit court erred in denying his motion for a directed verdict. As this is a criminal appeal in which a sentence of life imprisonment has
On the night of February 13, 2007, Appellant went to the home of his estranged wife, Lisa Reeves, which she shared with her mother and grandparents. He began to argue with Lisa about money and a credit card. Eventually, the argument escalated, and Appellant started hitting his wife. Her mother intervened and threatened to call the police. He then turned on Lisa's mother and started hitting her. Lisa ran to the back of the house to get her phone. Upon hearing the sound of a gunshot, she barricaded herself in her grandparent's bedroom, jumped out of the bedroom window, and ran next door to her brother's house. After Lisa described the situation to her brother, he went next door. As he approached the house, Appellant fired multiple shots at him, causing Lisa's brother to sustain several gunshot wounds. An officer arriving at the scene was also shot and wounded. Lisa's grandparents, who were also inside the house, sustained gunshot wounds that proved to be fatal. Appellant fled the scene, and, by monitoring his ATM withdrawals, law enforcement authorities were able to locate him in Laredo, Texas. At the time of his arrest, officers found a black, 40 caliber handgun and two clips, one of which was in his back pocket. They also found a 7.62 millimeter AK-47 assault rifle, along with a canvas bag that contained four clips.
Appellant argues that the circuit court erred in denying his motion for a directed verdict on grounds that he was not guilty by reason of mental disease or defect at the time he committed the alleged criminal offenses. Specifically, he points to the testimony of two medical experts who opined that Appellant was suffering from delirium brought on by the interaction of his Post Traumatic Stress Disorder and certain medications prescribed by the Veterans Administration. The State contends that there was substantial evidence to support the conviction and that the burden was on the Appellant to prove this affirmative defense.
Although Appellant raises this issue as his final point on appeal, this court has stated that double-jeopardy concerns require this court review arguments regarding the sufficiency of the evidence first. Boldin v. State, 373 Ark. 295, 283 S.W.3d 565 (2008). With respect to a motion for a directed verdict based on an affirmative defense of insanity, the same double-jeopardy concerns attach to the sufficiency of the evidence. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).
Arkansas Code Annotated § 5-2-312 provides that:
With respect to affirmative defenses, such as insanity, the burden is on the defendant to prove the affirmative defense by a preponderance of the evidence. Navarro v. State, 371 Ark. 179, 264 S.W.3d 530 (2007). Furthermore, our court "has a well-settled policy of affording deference to jury verdicts. The determination of the credibility of trial witnesses and the weighing of the evidence is solely within the province of the jury." Id. at 192, 264 S.W.3d at 539. The jury is not bound to accept the opinion testimony of any witness as true and conclusive,
On appeal, Appellant suggests that this court disregard the testimony of Dr. Jeremy Hinton, a staff psychiatrist with the Arkansas State Hospital, which refuted the testimony of Appellant's own medical experts, Dr. Rebecca Rutledge, a clinical psychologist, and Dr. Thomas Bannister, a psychiatrist specializing in psychopharmacology. Dr. Hinton concluded that Appellant did not experience delirium at the time of the offense. According to Dr. Hinton, Appellant did not exhibit the symptoms of delirium before or after the charged conduct. In fact, during the days leading up to the incident, neither his family nor his employer noticed any symptoms of confusion and disorientation, or a reduced ability to focus, shift or maintain attention. Furthermore, after the violent confrontation with his estranged wife and her family, Appellant was able to access an ATM and drive to Laredo, Texas. Dr. Hinton explained that a person suffering from delirium "would have a really hard time, if not impossible time, accessing an ATM" and navigating "a vehicle all the way to Laredo without being involved in an accident." In sum, Dr. Hinton did not find that Appellant had any mental disease or defect of such severity that would keep him from (a) knowing that the charged conduct was illegal, and (b) having the capacity to conform his behavior to the requirements of the law. Because this court must review the evidence in the light most favorable to the State, with the determination of credibility being solely within the province of the jury, we conclude that substantial evidence supports the jury's verdict. Therefore, we affirm on this point.
For his second point on appeal, Appellant argues that the circuit court erred in denying his motion to quash the entire jury panel. He claims that (1) the circuit clerk improperly excused jurors, thereby violating the court's order reflected in the summons
We have previously held that a trial court's refusal to quash a jury panel is reviewed for an abuse of discretion. Kelly v. State, 350 Ark. 238, 85 S.W.3d 893 (2002) (citing Newman v. State, 327 Ark. 339, 939 S.W.2d 811 (1997)). Irregularities affecting the selection of the jury panel warrant a new trial only if timely objection was made prior to the verdict and the resulting prejudice is shown. Mosby v.
Pursuant to Ark.Code Ann. § 16-33-302, a challenge to the trial jurors can be made either to the panel or to the individual juror. Ark.Code Ann. § 16-33-302(1) (1999). Furthermore, a challenge to the jury panel "shall be sustained by the court if it shall appear that there was a substantial irregularity in the drawing or summoning of the jury." Ark.Code Ann. § 16-32-109(b)(1) (Repl.1999). In Mosby v. State, we held that a substantial irregularity existed in the manner of the selection of the jury panel. 249 Ark. 17, 457 S.W.2d 836. The selection of the grand and petit jury panels by less than three jury commissioners was not in accordance with Ark. Stat. Ann. § 39-201 (Repl.1962) (now codified at Ark.Code Ann. § 16-32-102 (Repl.1999)) and constituted prejudicial error. Id. Following the enactment of the Arkansas Jury Wheel Act of 1969, a comprehensive statute by which the legislature directed the use of a jury wheel and made other changes in the selection of juries, we held to be mandatory that section of the Act which requires three jury commissioners to meet each year and select prospective jurors for the following calendar year. Horne v. State, 253 Ark. 1096, 490 S.W.2d 806 (1973) (interpreting Ark. Stat. Ann. § 39-205, now codified at Ark.Code Ann. § 16-32-103 (Supp.2009)). See Shelton v. State, 254 Ark. 815, 496 S.W.2d 419 (1973) (chancery court took names from the jury wheel, but the names were not placed in the jury book, and, after their use, those names were discarded); Streett v. Roberts, 258 Ark. 839, 529 S.W.2d 343 (1975) (the use of the jury wheel mandatory in the selection of grand juries and petit juries).
In Huckaby v. State, 262 Ark. 413, 557 S.W.2d 875 (1977), our court made clear that every provision in the Jury Wheel Act was not mandatory:
Id. at 415, 557 S.W.2d at 877. Thus, a typewritten list of names drawn from the jury wheel was deemed to be in substantial compliance with the statute directing that names drawn from the jury wheel be recorded in a jury book. Id. (interpreting Ark. Stat. Ann. § 39-209 (Supp.1975), now codified at Ark.Code Ann. § 16-32-105 (Supp.2009)). We reiterated in Welch v. State, 269 Ark. 208, 599 S.W.2d 717 (1980), that § 16-32-105 is not mandatory "in the sense that a failure to comply strictly with a particular provision requires that the entire panel be quashed." 269 Ark. at 210, 599 S.W.2d at 719. This court applied the substantial compliance standard again in Harrod v. State, 286 Ark. 277, 691 S.W.2d 172 (1985). In that case, the names of individuals excused from serving as jurors and the reasons for their excusal were available, though not in the precise form contemplated by the Jury Wheel Act. Id. See also Abernathy v. Patterson, 295 Ark. 551, 750 S.W.2d 406 (1988) (any irregularity in the selection process does not per se invalidate the proceedings.).
The relevant facts in the instant case are as follows: Prior to trial, jury summonses were mailed to approximately 300 prospective jurors. Of that number, the circuit clerk received 200 responses. The clerk gathered the information and documentation from those responses, as well as other communications with jurors, and then separated the information into two categories: the "available board" or the
The process of jury selection began on the first day of trial, July 21, 2008, and concluded on July 24, 2008. Sixty-three prospective jurors appeared and answered the roll call on the first day of trial; an additional three or four prospective jurors appeared on the second day of trial. The circuit court conducted the initial voir dire of the entire venire. Thereafter, the venire was questioned in panels of four by the prosecutor and defense counsel.
Prior to individual voir dire, Appellant moved to quash the jury panel as not being a proper reflection of a cross-section of the community, The next day, following the commencement of individual voir dire, Appellant asserted an additional argument in support of his motion to quash the entire jury panel. Specifically, he claimed that the process by which 100 prospective jurors were excused from duty was a violation of his right to due process and to have a jury composed of his peers. Appellant submitted the testimony of Mary Ann Wilkinson, Circuit Clerk, and Ex-officio Recorder of Lee County, in support of his motion to quash the jury panel. With regard to the process by which approximately 100 prospective jurors were excused or disqualified, the following colloquy occurred during Ms. Wilkinson's direct examination by defense counsel:
During Ms. Wilkinson's cross examination by the prosecutor, the following colloquy occurred:
The exemptions from jury service are set forth in Ark.Code Ann. § 16-31-103(Repl.1999):
Based upon the record before us, we cannot say that the circuit court failed to exercise its discretion with regard to the disqualification or excusal of prospective jurors in this case. According to the testimony of the circuit clerk, she documented each juror's excuse and organized the excuses on the board for the judge to review. She then informed the prospective jurors that they would be excused subject to the judge's approval. The board with the excuses was made available for the judge to review. The circuit clerk testified that, so far as she knew, the judges reviewed them. Thus, in the absence of "a substantial irregularity in the drawing or summoning of the jury," we must decline to sustain Appellant's challenge to the jury panel. Ark.Code Ann. § 16-32-109(b)(1); Harrod v. State, 286 Ark. 277, 691 S.W.2d 172.
In any event, Appellant makes no showing of prejudice. In Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), a case involving alleged irregularities in the jury panel, we made it clear that the appellant must demonstrate prejudice as well as any error. Appellant, nonetheless, asks this court to presume prejudice based upon the number of jurors excused. This argument is without merit. We reiterate that an irregularity in the selection process does not per se invalidate the proceedings. Abernathy v. Patterson, 295 Ark. 551, 750 S.W.2d 406. Furthermore, there has been no suggestion that the discrepancy in the number of venire persons scheduled for jury service, some three hundred individuals, and the number actually appearing, around sixty-seven, "was the result of any attempt to influence the makeup of the jury panel." Ruiz v. State, 299 Ark. 144, 157, 772 S.W.2d 297, 303 (1989).
While the selection of the petit jury from a representative cross section of the community is an essential component of the Sixth Amendment right to a jury
For Appellant's final point on appeal, he argues that two jurors, George Ramsey and David Lee Jackson, should have been removed for cause. The circuit court's rejection of this argument, according to Appellant, forced him to exhaust all his peremptory challenges. In response, the State points out that both jurors indicated they could follow the law and understood that a defendant was presumed innocent until proven guilty beyond a reasonable doubt.
Arkansas Code Annotated § 16-33-304(b)(2)(A) provides that:
Ark.Code Ann. § 16-33-304(b)(2)(A) (Repl. 1999). On review, we have held that "it is within the discretion of the trial court to determine whether a juror has actual bias, and have stated that a judgment will not be reversed unless the court abuses its discretion." Henslee v. State, 251 Ark. 125, 127, 471 S.W.2d 352, 354 (1971). Furthermore, jurors are presumed to be unbiased and the burden is on the appellant to show otherwise. Kelly v. State, 350 Ark. 238, 85 S.W.3d 893 (2002). "Additionally, jurors are presumed to comprehend and follow court instructions." Id. at 241, 85 S.W.3d at 895.
In the case at bar, the circuit court questioned the challenged jurors about their ability to follow the court's instructions on the law. While George Ramsey initially equivocated about whether he could presume the innocence of Appellant, when questioned by the trial judge, he agreed that he could in fact make a presumption of innocence in this case. Likewise, David Lee Jackson, when questioned by the trial judge, made clear that he could follow the law and put aside what he had seen about the case outside the courtroom and judge the prosecution's case on its own merits. We cannot say that the circuit court abused its discretion in failing to strike Ramsey and Jackson. In view of our holding on this point, we need not address Appellant's assertion that the circuit court erred in denying his
In compliance with Arkansas Supreme Court Rule 4-3(i), the record has been examined for all objections, motions, and requests made by either party that were decided adversely to Appellant, and no prejudicial error has been found.
Affirmed.