Armer v. State , 51 Ark. App. 173 ( 1995 )

John B. Robbins, Judge.

Appellant Steven Dean Armer was convicted by a jury of possession of Valium with intent to deliver and possession of drug paraphernalia. He waived jury sentencing, and the trial judge sentenced him to four years in the Arkansas Department of Correction for each conviction, with the sentences to run concurrently. Mr. Armer now appeals, arguing that the trial court improperly limited his voir dire of the potential jurors. We affirm.

The evidence in this case showed that, on July 17, 1993, a police officer found Mr. Armer passed out in the back seat of his vehicle. In plain view inside the car were approximately 1000 Valium tablets and various items of drug paraphernalia. Upon discovering this contraband, the police took Mr. Armer into custody.

On the day of Mr. Armer’s trial, his counsel attempted during voir dire to question potential jurors about punishment and sentencing. The trial court stated that the only questioning that would be allowed regarding sentencing would be whether any member of the jury panel would be uncomfortable sending Mr. Armer to prison for the maximum term of ten years if found guilty. Mr. Armer’s counsel requested, but was not permitted, to ask the following questions to the prospective jurors:

1. Would the jury members automatically give the maximum sentence to each offense charged just because it was a drug case and whether their attitude was to lock up and throw away the key, put these people away for a long period of time?

2. Is prison the only alternative? Would the jury members consider a fine? Is a fine appropriate in a drug offense case?

3. Do the jury members think that drug addicts should be treated differently than people who are drug dealers?

4. Do the jury members know the difference between misdemeanors and felonies?

5. Do the jury members believe in individualized penalties based upon the facts and circumstances of each particular case?

6. Do the jury members think that first offenders should be treated differently than multiple offenders?

For reversal, Mr. Armer contends that the trial court erroneously prevented him from asking the above questions. He argues that, had he been allowed to make his proposed inquiries regarding sentencing and punishment, he would have had an opportunity to strike jurors who may have been inclined to give him the maximum sentence. Since he was unable to ask these questions, Mr. Armer asserts that he had no practical choice but to waive jury sentencing.

The purposes of voir dire examination are to discover if there is any basis for challenging for cause and to gain knowledge for the intelligent exercise of peremptory challenges. Ark. R. Crim. P. 32.2(a); Nutt v. State, 312 Ark. 247, 848 S.W.2d 427 (1983). The extent and scope of voir dire examination of prospective jurors are matters lying within the sound judicial discretion of the trial court, the latitude of which is rather broad. Parker v. State, 265 Ark. 315, 578 S.W.2d 206 (1979). A trial court’s limitation of voir dire examination is not reversible on appeal unless it constitutes a clear abuse of discretion. Fauna v. State, 265 Ark. 934, 582 S.W.2d 18 (1979).

In the case at bar, we need not address the merits of Mr. Armer’s argument because any possible prejudice against Mr. Armer was removed when he waived jury sentencing and was sentenced by the trial court. In Clinkscale v. State, 13 Ark. App. 149, 680 S.W.2d 728 (1984), this court affirmed the appellant’s conviction despite his complaint that two jurors declared that they could not sentence him impartially. In doing so, we held that although the appellant was faced with a biased jury, any prejudice was cured because the jury unanimously elected to let the trial court set the sentence, and the trial court did so. A somewhat analagous situation was addressed by the supreme court in Smith v. State, 300 Ark. 330, 778 S.W.2d 947 (1989), and is also instructive. In that case, the appellant took issue with the trial court’s refusal to grant his motion in limine to exclude his prior felonies on cross-examination by the State. The appellant chose not to testify on his own behalf as a result of the ruling, but the supreme court held that his assignment of error was not preserved for review because he did not testify at trial. The court stated:

To perform the weighing of the prior conviction’s probative value against its prejudicial effect, as required by Rule 609(a)(1), the reviewing court must know the precise nature of the defendant’s testimony, which is unknowable when, as here, the defendant does not testify. Any possible harm flowing from a trial court’s in limine ruling permitting impeachment by a prior conviction is wholly speculative. Moreover, when the defendant does not testify, the reviewing court has no way of knowing whether the State would have sought so to impeach, and cannot assume that the trial court’s adverse ruling motivated the defendant’s decision not to testify. Even if these difficulties could be surmounted, the reviewing court would still face the question of harmless error. If in limine rulings under Rule 609(a) were reviewable, almost any error would result in automatic reversal, since the reviewing court could not logically term “harmless” an error that presumptively kept the defendant from testifying. Requiring a defendant to testify in order to preserve Rule 609(a) claims enables the reviewing court to determine the impact any erroneous impeachment may have in light of the record as a whole, and tends to discourage making motions to exclude impeachment evidence solely to “plant” reversible error in the event of conviction.

In the instant case no reversible error occurred because, although Mr. Armer was unable to question potential jurors regarding sentencing, he was not sentenced by the jury. As in Clinkscale v. State and Smith v. State, it would be pure speculation for us to attempt to weigh any possible harm suffered by Mr. Armer as a result of the alleged error. It is entirely possible that, even if Mr. Armer had been allowed to voir dire the jurors and then decided to submit the case to the jury for sentencing, the jury would have exacted the same or greater punishment than that given by the trial court. It is also wholly conceivable that, had Mr. Armer not waived jury sentencing, the jury may have given a lighter sentence than the trial court despite the excluded voir dire questioning. Moreover, when Mr. Armer waived jury sentencing, he failed to indicate that he was doing so as a result of the excluded voir dire. Mr. Armer has not shown prejudice, therefore we affirm his convictions.

Affirmed.

Pittman, J., concurs. Jennings, C.J., Cooper and Mayfield, JJ., dissent.