Woolbright v. State, CR 03-170.

Page 315

160 S.W.3d 315

357 Ark. 63

Rebecca WOOLBRIGHT and Carl Allen Johnson v. STATE of Arkansas.

No. CR 03-170.

Supreme Court of Arkansas.

April 22, 2004.

Julia Llewellyn Ketcham, Fort Smith, for appellant Rebecca Woolbright.

Cullen & Co., PLLC, by: Tim Cullen, Little Rock, for appellant Carl Allen Johnson.

Mike Beebe, Att'y Gen., by: Jeffrey A. Weber, Ass't Att'y Gen., Little Rock, for appellee.

ANNABELLE CLINTON IMBER, Justice.

Appellants Rebecca Woolbright and Carl Allen Johnson were convicted for the murder of Carrell Cahoon following a trial in which two separate juries were impaneled. One jury found Ms. Woolbright guilty of first-degree murder and sentenced her to a term of life imprisonment; whereas, the other jury found Mr. Johnson guilty of second-degree murder and sentenced him to forty-years' imprisonment. On appeal, Ms. Woolbright contends there was insufficient evidence to support her conviction and the dual jury denied her right to a fair trial. For his points of error on appeal, Mr. Johnson contends that the trial court erred in employing the dual-jury procedure and erred in denying his pretrial motion to suppress. Though Justices Corbin, Thornton, and Hannah would reverse on the dual-jury issue for both appellants, a majority of the court agrees to affirm both convictions on this point. As to the appellants' differing claims of error, we also affirm Ms. Woolbright's conviction and sentence on her sufficiency challenge; however, we hold that the trial court erred in denying Mr. Johnson's motion to suppress and reverse and remand his conviction and sentence. Chief Justice Dickey and Justice Glaze would affirm Mr. Johnson's conviction on the suppression issue. In sum, we affirm Ms. Woolbright's conviction and sentence, but reverse and remand Mr. Johnson's conviction and sentence.

The State filed an amended information jointly charging Mr. Johnson and Ms. Woolbright with the offenses of first-degree murder. According to Mr. Johnson's theory of the case, he had been framed by Ms. Woolbright. He anticipated that the State would attempt to introduce out-of-court statements made by Ms. Woolbright implicating Mr. Johnson that would be inadmissible against him; thus, he immediately filed a motion to sever pursuant to Arkansas Rule of Criminal Procedure 22.3 (2003). Ms. Woolbright did not join in that motion. The State initially offered to redact those portions of Ms. Woolbright's statements that mentioned Mr. Johnson or, in the alternative, to elect not to introduce the statements. After conducting a hearing on this issue, the court conditionally denied the severance motion.

Two months later, the court conducted a second hearing on the issue of severance. After the State offered redacted versions of Ms. Woolbright's statements, the court concluded that the proposed redactions were not sufficient so as to prevent prejudice to Mr. Johnson. The State, however, declined to take the case to trial without Ms. Woolbright's taped statements. Ms. Woolbright then joined in Mr. Johnson's motion to sever, and the circuit court granted a severance on November 7, 2002. Later that same day, upon the State's request, the court conducted another hearing for purposes of clarity on the severance issue.

During that hearing, the State suggested that the court employ a dual-jury procedure; that is, the State proposed that the court conduct a single trial with one jury impaneled to hear the case against Ms. Woolbright and a separate jury impaneled to hear the case against Mr. Johnson. The State explained that a jury could be sequestered during portions of the trial when that particular jury needed to be insulated from the evidence. Both defendants objected to the dual-jury procedure, whereupon the court asked counsel to collect information on the State's proposal and report back the following day. When court reconvened the next day, neither defendant could cite a rule that prohibited the use of a dual-jury procedure. Both defendants, however, continued to object to the procedure.

The court and the parties then discussed the logistics of using two separate juries at the same trial. First, the court considered voir dire. Both defendants requested that voir dire be done separately while the State argued that voir dire be conducted together. The court ruled that if it used the dual jury, it would conduct voir dire separately. All parties agreed that opening and closing statements would have to be done separately. As to whether or not the juries should be instructed at the same time, the parties conceded that the court would have to reserve its ruling on that issue until the close of all of the evidence. The court ultimately granted the State's motion for separate juries. Mr. Johnson then requested that his jury be excused from any defense presented by Ms. Woolbright. The court declined to sequester one jury during either defendant's case-in-chief, but specifically reserved its right to change that ruling.

At the trial, which began on November 12, 2002, the voir dire for each jury was conducted separately. Then, upon the selection of each venire, the court explained that both Mr. Johnson and Ms. Woolbright were charged in the case and that each defendant would have a separate jury. The court also told the two juries that they would be differentiated by number, with Mr. Johnson's jury wearing stickers with the number one printed on them and Ms. Woolbright's jury wearing stickers with the number two printed on them. Jurors were specifically instructed not to discuss the case or associate in any way with any members of the other jury. Finally, the courtroom had been rearranged to accommodate both juries.

The trial began with the State making its first opening statement to Mr. Johnson's jury. After an opening statement by Mr. Johnson's counsel, his jury was excused. Then opening statements for the Woolbright case were made to her jury separately. Next, the State presented the bulk of its case-in-chief in front of both juries. At the point in the trial when the State had completed its case except for introducing the statements by each defendant, the court conferred with counsel outside the presence of both juries.

The State explained that it still needed to recall one detective to play Ms. Woolbright's two taped statements outside the presence of Mr. Johnson's jury. The detective would also be called to testify outside the presence of Ms. Woolbright's jury about statements made by Mr. Johnson. Mr. Johnson indicated that his defense would be limited to recalling one of the State's witnesses. His earlier cross-examination of that witness had been restricted due to the presence of both juries. Ms. Woolbright also indicated that she might call witnesses in her defense.

Following the removal of Ms. Woolbright's jury, the State called the detective as its final witness and rested its case against Mr. Johnson. Mr. Johnson recalled one of the State's earlier witnesses for cross-examination and then rested. At that time, Mr. Johnson's jury was excused and directed to return later that day. Next, Ms. Woolbright's jury was brought into the court room, and the State proceeded through testimony by the detective to introduce Ms. Woolbright's taped statements. After the State rested its case-in-chief against Ms. Woolbright, she called one witness in her defense and then rested.

Outside the presence of both juries, the court and counsel discussed jury instructions. They decided that the same initial set of jury instructions would be given to both juries. When the court reconvened, both juries were instructed on the law at the same time. The court then directed the juries to return the next day to hear closing arguments and begin deliberations, with specific directions that Mr. Johnson's jury return at 9:00 a.m. and Ms. Woolbright's jury return at 10:30 a.m. The following morning, the two juries sitting separately and independently heard closing arguments and final jury instructions for the guilt phase of the trial. Consequently, Mr. Johnson's jury retired first to deliberate on the issue of guilt.

While Ms. Woolbright's jury was still out deliberating, Mr. Johnson's jury returned with its verdict, finding him guilty of second-degree murder. Shortly thereafter, the court conducted a separate sentencing phase of the trial. After all the evidence was submitted, Mr. Johnson's jury was instructed and retired to deliberate. Ms. Woolbright's jury then returned with its verdict finding her guilty of first-degree murder. The court conducted a separate sentencing phase in Ms. Woolbright's trial, instructed her jury, and sent them out to deliberate.

Mr. Johnson's jury subsequently returned with its verdict that fixed his sentence at forty years in prison and a fine of $15,000. After the sentence was read, the court informed Mr. Johnson's jury that Ms. Woolbright's jury had found her guilty of first-degree murder and was still deliberating on the sentence. He excused the panel but advised the jurors that they could remain in the courtroom for Ms. Woolbright's sentencing if they so desired. Thereafter, Ms. Woolbright's jury returned with its verdict that fixed her sentence at a term of life imprisonment. The court informed Ms. Woolbright's jury of the findings by Mr. Johnson's jury and then excused the panel.

Both defendants filed timely notices of appeal. Each defendant has filed a separate brief, and while they both argue that the circuit court erred in impaneling two juries, their other points on appeal are separate and independent. Specifically, Ms. Woolbright challenges the sufficiency of the evidence to support her conviction, whereas Mr. Johnson challenges the circuit court's ruling on his pretrial motion to suppress.

I. Sufficiency of the Evidence—Ms. Woolbright

For purposes of double jeopardy, we address Ms. Woolbright's challenge to the sufficiency of the evidence first. See Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (200...