author: Lavenski R. Smith, Justice.

text:
    Marcel Wayne WILLIAMS v. STATE of Arkansas
    CR 97-949
    991 S.W.2d 565
    Supreme Court of Arkansas
    Opinion delivered June 10, 1999

      Herbert T. Wright, Jr., P.A., for appellant.

      Mark Pryor, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., for appellee.
   Lavenski R. Smith, Justice.

Appellant Marcel Williams appeals his convictions for capital murder, kidnapping, rape, and aggravated robbery from the Pulaski County Circuit Court. Following conviction, the jury imposed a sentence of death. Williams asserts numerous errors in both the guilt and penalty phases of the trial. We find no reversible error and affirm.

Facts

On November 20, 1994, Stacy Errickson, the victim, on her way to work, stopped at the Jacksonville Shellstop for gas. The time was approximately 6:45 a.m. Williams approached Errickson’s vehicle, drew a firearm, and forced her to move from the driver’s seat to the passenger’s side. Williams then drove Errickson’s car away from the convenience store. Williams then took Errickson to several automated teller machines and coerced her to attempt withdrawals. A total of eighteen transactions yielded the sum of $350. The last transaction occurred at 7:37 a.m. These transactions were recorded by security cameras at several banking facilities. Stacy Errickson did not make it to work that day, nor did she pick up her child from the babysitter at the end of the day.

Police arrested Williams on an outstanding warrant on November 29, 1994, and questioned him based on physical evidence linking him to two other assaults on women. During the course of an intensive interrogation lasting some thirteen hours, Williams admitted having abducted Errickson from the convenience store and robbing her through ATM withdrawals. However, he denied any sexual assault and assured the officers that to the best of his knowledge Errickson was alive. Appellant attempted to implicate others as accomplices asserting that they were the ones responsible for physically harming her. Based upon information Williams supplied, the police recovered a sheet matching Williams description as one he used in connection with the abduction and also recovered a gold ring which Williams identified. On December 5, 1994, police discovered Stacy Errickson’s body buried in a shallow grave. Other evidence adduced at trial indicated that witnesses Tammy Victoria and Tammy Keenahan identified Williams as a man they had seen on the morning of November 20, 1994, at the Shellstop. They also testified that after they left the station he followed them in a car and attempted to stop them until they sought refuge at the air force base. Williams subsequently returned to the Shellstop and abducted Stacy Errikson.

On April 5, 1995, the Pulaski County prosecutor by felony information charged Williams with capital murder, kidnapping, rape, and aggravated robbery. The information also asserted that Williams had four prior felony convictions. The Pulaski County Circuit Court tried Williams on these charges beginning on January 6, 1997. Appellant was convicted on all counts. During the sentencing phase of the trial the prosecutor introduced evidence in support of three aggravating circumstances, and the appellant offered one mitigating circumstance. The jury found that all three alleged aggravating circumstances existed beyond a reasonable doubt and that Williams’s mitigating circumstance was also established. In balancing these findings the jury recommended a sentence of death, which the trial court accepted.

On appeal, Williams challenges the sufficiency of the evidence on all charges against him. Williams also contends the trial court committed reversible errors in refusing to strike the jury panel; in admitting his custodial statement; in admitting testimony of another victim in sentencing; in admitting other specific evidence; and in denying his pretrial death-penalty motions. We disagree and affirm.

Sufficiency of the Evidence

We consider sufficiency of the evidence before addressing other alleged trial errors. Britt v. State, 334 Ark. 142, 974 S.W.2d 436 (1998). The test for determining sufficiency of the evidence is whether there is substantial evidence to support the verdict. On appeal, we will review the evidence in the light most favorable to the appellee and sustain the conviction if there is any substantial evidence to support the verdict. Davis v. State, 314 Ark. 257, 863 S.W.2d 259, 262 (1993), cert. den. 511 U.S. 1026 (1994). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. Only evidence supporting the verdict will be considered. Stewart v. State, 331 Ark. 359, 961 S.W.2d 750 (1998). It is important to note that we make no distinction between circumstantial and direct evidence when reviewing for sufficiency of the evidence. Davis, 314 Ark. at 264, 863 S.W.2d at 262. However, for circumstantial evidence to be sufficient, it must exclude every other reasonable hypothesis consistent with innocence. Whether the evidence excludes every hypothesis is left to the jury to determine. Id. Booker v. State, 335 Ark. 316, 984 S.W.2d 16 (1998).

Appellant first asserts insufficiency of the evidence to support the element of forcible compulsion in the aggravated-robbery charge. A person commits aggravated robbery if he commits the offense of robbery, and is armed with a deadly weapon. Ark. Code Ann. § 5-12-103(a)(l) (Repl. 1993). Our statutes focus on the threat of harm rather than the taking of property. Robinson v. State, 303 Ark. 351, 797 S.W.2d 425 (1990); Jarrett v. State, 265 Ark. 662, 580 S.W.2d 460 (1979). Williams, in his statement, told police he and his companions abducted the victim at gunpoint. Given the circumstances of her abduction, the jury could have reasonably believed that Williams also used the weapon to coerce the victim to accompany him to ATMs and hand her money over to him. We hold there was substantial evidence to support the jury’s verdict on aggravated robbery.

Appellant next asserts insufficiency of the evidence to support forcible compulsion on the rape charge. This assertion is meritless. Forcible compulsion means “physical force or a threat, express or implied, of death or physical injury to or kidnapping of any person.” Ark. Code Ann. § 5-14-101(2) (Repl. 1997). We recently stated the relevant considerations in Freeman v. State, 331 Ark. 130, 132, 959 S.W.2d 400 (1998), where we said, “‘physical force’ [is defined] as ‘any bodily impact, restraint or confinement, or the threat thereof.’” Strawhacker v. State, 304 Ark. 726, 731, 804 S.W.2d 720, 723 (1991). The test that we have used to determine whether there was force is “whether the act was against the will of the party upon whom the act was committed.” Mosley v. State, 323 Ark. 244, 249, 914 S.W.2d 731, 734 (1996). In the instant case, Williams abducted the victim at gunpoint, robbed her, and took her to a storage facility where the evidence shows she was sexually assaulted. There is no evidence of any consensual conduct in the events of November 20, 1994. Police discovered the victim’s lunch cooler at the storage facility as well as an article of clothing that proved to contain evidence of Williams’s assault upon the victim. Substantial evidence supports the verdict on the rape.

Similarly, appellant Williams then asserts there was insufficient evidence to show the kidnapping element of restraint. The assertion, though, is similarly meritless. Ark. Code Ann. Section 5-11-101(2) [Definitions] provides: “(2) ‘Restraint without consent’ includes restraint by physical force, threat, or deception, or in the case of a person who is under the age of fourteen (14) years or incompetent, restraint without the consent of a parent, guardian, or other person responsible for general supervision of his welfare. . . .” The facts of this case indicate Williams restrained the victim by threat of force with a fiream. Also, the victim’s hands were bound behind her back. The purpose of the restraint may be inferred from circumstantial evidence. Fairchild v. State, 305 Ark. 406, 808 S.W.2d 743 (1991). The circumstances surrounding Errickson’s abduction clearly support the jury’s verdict that she was restrained without consent.

Appellant Williams also asserts there was insufficient evidence to support the verdict for capital murder in that there was a failure to prove kidnapping. As discussed previously, we find substantial evidence supported the verdict for kidnapping. This assertion, therefore, is meritless.

Finally, with respect to sufficiency of evidence, Williams asserts there is insufficient evidence to support the imposition of the death penalty. We will uphold the jury’s verdict if there existed substantial evidence for the jury to find beyond a reasonable doubt that one or more aggravating circumstances exist and that they outweighed any mitigating circumstances. Prior to trial, the State disclosed its intent to introduce evidence to establish the existence of four aggravating circumstances. They were:

(1) The defendant previously committed another felony, an element of which was the use or threat of violence to another person.
(2) The capital murder was committed for the purpose of avoiding or preventing an arrest.
(3) The defendant committed the murder of Stacy Errickson for pecuniary gain.
(4) The capital murder was committed in an especially cruel or depraved manner.

At trial, the State introduced evidence in support of (1), (3), and (4). In response, appellant introduced evidence which established the existence of one mitigating circumstance. Based on that evidence, the jury found that Williams accepted responsibility for his conduct and admitted participation in the crime. The State’s evidence reflected Williams forcibly abducted Stacy Errikson, robbed her, raped her, and killed her. It further showed Errikson had a significant period of time to contemplate her fate. The physical evidence established a violent physical assault by appellant against the victim. Injuries to her head indicated deep bruising to her neck and to her face. The victim was bound with her hands behind her back. The medical testimony further indicated her death was by asphyxiation from strangulation. Appellant offered no evidence to contradict the proof establishing robbery and, indeed, admitted to robbing the victim. The State introduced into evidence convictions on both previous violent felonies — aggravated robbery and kidnapping. On review, the jury’s judgment will be upheld if, taking the evidence in the light most favorable to the State, a rational trier of fact could find the aggravating circumstance to have existed beyond a reasonable doubt. Kemp v. State, 324 Ark. 178, 200, 919 S.W.2d 943, 953-954, cert. denied, 117 S.Ct. 436, 136 L.Ed.2d 334 (1996). Willett v. State, 335 Ark. 427, 434, 911 S.W.2d 937 (1998). The balancing of aggravating and mitigating circumstances is properly the duty of the jury. Willett, id. at 436. We conclude substantial evidence supported the jury’s finding that aggravating circumstances existed beyond a reasonable doubt and that they outweighed the defendant’s mitigating circumstance.

Alleged error in refusing to strike the jury panel

Williams alleges racial bias in the selection of the jury in violation of his constitutional rights as outlined in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, (1986). Williams alleges he established a prima facie case by showing (1) that he was a member of a cognizable racial group, i.e. African-American, (2) that the State exercised peremptory challenges to remove members of that group from the venire, and (3) that such challenges were exercised on account of their race. Williams contends that although the State offered a racially neutral explanation, in reality the explanation was a mere pretext.

We recently addressed the requirements of Batson and set out the specific procedures to be followed by our state’s trial courts in MacKintrush v. State, 334 Ark. 390, 399, 978 S.W.2d 293, 297 (1998). In MacKintrush, we delineated a three-step analysis process that includes: (1) the peremptory-challenge opponent must make a prima facie case of racial discrimination, (2) the strike’s proponent must offer a racially neutral explanation, and (3) the trial court must decide whether the opponent has proven purposeful racial discrimination. Id. at 397. These steps are taken from the U.S. Supreme Court’s clarification of Batson contained in Purkett v. Elem, 514 U.S. 765 (1995). In MacKintrush, we stated “In light of the Purkett decision, we have reassessed the proper procedures for the trial courts to follow in Batson cases and take this opportunity to set forth those procedures. Manifestly, there is a three-step processs that must be used when the opponent of the strike makes a prima facie case. Furthermore, it is clear that the burden of persuasion establishing purposeful discrimination never leaves the opponent of the strike. And, finally, the Batson process must occur outside of the hearing of the venire.”

During voir dire, the prosecution used six peremptory challenges striking four African-Americans, three female and one male. Williams made a Batson challenge upon the State’s first peremptory challenge, which was for a Ms. Artis, an African-American female. In the court’s view, element two of a prima facie case, “process or pattern to discriminate” was not established. However, the State responded with a racially neutral explanation. The State challenged the juror due to her relatively low education level, the complex DNA evidence at issue and that she did not seem “bright.” The trial judge weighed and assessed what had been presented and did not seat the challenged juror but made no final ruling on the challenge itself. During the course of voir dire, there was discussion about why jurors were being excused, which included educational levels as well as predisposition toward the death penalty.

On the State’s seventh challenge, the State attempted to excuse Ms. Collins, an African-American female. Williams made a Batson challenge noting Ms. Collins had a B.A. The court found that Williams had now stated a prima facie case. The State responded with a racially neutral explanation by arguing she was ambivalent on the death penalty and that although she indicated a willingness to impose death if it were appropriate, she also indicated a reluctance to do so. The court noted the State had reduced the panel of African-Americans by 66%. However, the court then also found, after assessing the circumstances, that the prosecution did not engage in a pattern of racial discrimination. The court then found that Ms. Collins should be seated and seated her. After completion of jury selection but before the start of the trial, the court replaced one of the original jurors with an alternate due to illness. The original juror was Caucasian and the alternate who replaced him was African-American. It is undisputed that the jury eventually seated for the trial included four African-Americans. From our review of the record, the trial court properly applied our holding in MacKintmsh.

It is undisputed that the prosecution used peremptory challenges with African-American potential jurors. It is also undisputed that the jury eventually seated for the trial included four African-Americans. As Williams acknowledges, the prosecution stated race-neutral bases for the challenges, and that they were made to obtain a jury capable of understanding the complex evidence, particularly, DNA evidence. Additionally, the State justified its challenges, stating they were to ensure that all jurors would follow the law with respect to imposition of the death sentence. Williams argues, in turn, that lower-educated whites were retained when higher-educated blacks were not.

We will reverse a trial court’s ruling on a Batson challenge only when its findings are clearly against the preponderance of the evidence. Green v. State, 330 Ark. 458, 956 S.W.2d 849 (1997). In making Batson rulings, this court accords some measure of deference to the trial court in that it is in a superior position to make these determinations because it has the opportunity to observe the parties and determine their credibility. Sanford v. State, 331 Ark. 334, 962 S.W.2d 335 (1998); Roseby v. State, 329 Ark. 554, 953 S.W.2d 32 (1997). Moreover, unless discriminatory intent appears in the prosecution’s explanation, the reason given will be considered race-neutral. Hernandez v. New York, 500 U.S. 352, 360 (1991). Consistent with our holdings, the record reflects the court struggled over this issue, weighing and assessing the facts and arguments presented, to decide whether the State’s explanation was merely pretextual. MacKintrush, id. , Upon review, we cannot say that the trial court’s rulings were clearly against the preponderance of the evidence.

Finally, as to the jury, Williams argues that the trial court erred in refusing to strike jurors for cause, which forced Williams to use all his peremptory challenges on jurors who should have been excused. Specifically, Williams contends that he could not strike juror Fortson. However, Williams admits juror Fortson could not have been struck for cause. We have said that in order to challenge a juror’s presence on appeal, the appellant must have exhausted his peremptory challenges and must show that he was forced to accept a juror who should have been excused for cause. Berry v. St. Paul Fire & Marine Ins. Co., 328 Ark. 553, 569, 944 S.W.2d 838, 846 (1997). Appellant must have asked the court to remove the juror for cause, and the court must have improperly denied the request. Willis v. State, 334 Ark. 412, 420, 977 S.W.2d 890 (1998). Williams did not show he was forced to accept a juror who should have been excused for cause. It is also worthy of note that Mr. Fortson did not sit on the jury, in any event, due to illness.

Admission of the Appellant’s Statement

As to Mr. Williams’s statement, this court reviews the voluntariness of confessions by making an independent determination based on the totality of the circumstances and reverses the trial court only if its decision was clearly erroneous. State v. Sheppard, 337 Ark. 1, 987 S.W.2d 677 (1999). Custodial statements are presumed involuntary, and the State must prove by a preponderance of the evidence that the statement was given voluntarily and was knowingly and intelligently made. Rychtarik v. State, 334 Ark. 492, 976 S.W.2d 374 (1998).

Williams first argues ignorance of the rights he waived in making the statement as well as ignorance of the ensuing consequences. Williams contends the police did not inform him of the actual charges which were the subject of the interview. He also states that he was arrested on a misdemeanor charge and told he was a suspect in a kidnapping. He alleges impropriety in the interrogation since he only believed he was a suspect in a kidnapping and not a murder.

Williams was arrested and interviewed on November 29, 1994. Police read him the required Miranda rights, and Williams gave written consent for interrogation on a police form. The transcript of the interview and police testimony indicated he exhibited knowledge and understanding of the process he was undergoing. Appellant had sufficient education and intelligence to comprehend the explanation of rights having obtained a GED and at least one semester of college. Appellant knew one officer by name. The record reflects the police principally questioned appellant about the abduction hoping that Mrs. Errickson might still be found alive. The victim’s body was not found until December 5, 1994. No evidence establishing the commission of a homicide had been found at that time. During the interview, Williams did not confess to murder but instead insisted throughout that she was alive when he last saw her. As of the interview, the police only knew Errickson was missing and that Williams was a suspect. We find Williams understood he was voluntarily giving up substantial rights and that he understood the potential consequences, and accordingly find the trial court was not clearly erroneous.

Mr. Williams also asserts the statement was not voluntary because he was enticed by promises. He alleges the officers promised to go the prosecutor and tell him Mr. Williams had cooperated and knew he’d made a mistake. “A statement induced by a false promise of reward or leniency is not a voluntary statement.” Knight v. State, 62 Ark. App. 230, 233, 971 S.W.2d 272 (1998), quoting Clark v. State, 328 Ark. 501, 944 S.W.2d 533 (1997). As with other aspects of voluntariness, we look at the totality of the circumstances. Conner v. State, 334 Ark. 457, 469-70, 982 S.W.2d 655 (1998). During the interview, Williams, not the police, raised the prospect of police discussions with the prosecutors. Although the officer mentioned he would relate Williams’s cooperation to the prosecutor, no assurance of any benefit to Williams was conveyed. We find no false promise of leniency.

Conditions of the interview are also alleged to have been coercive. The questioning commenced at 4:22 p.m. and concluded the following morning at 6:00 a.m. At least two officers were present and Mr. Williams alleges he was reduced to tears twice. Length of detention is an issue in an analysis of voluntariness of a confession. Humphrey v. State, 327 Ark. 753, 940 S.W.2d 860 (1997). The statement itself is helpful on this issue. Over the thirteen hours, at least two were spent in driving to try and find a house. Length alone, however, is not determinative. We found twelve hours of intermittent questioning to not be coercive in Vaughn & Wilkins v. State, 252 Ark. 505, 479 S.W.2d 873 (1972). A critical consideration in this interview was that the focus of the officers was on finding Stacy Errickson, who at the time of the interview was still missing and presumed alive. The police remained optimistic that they might find Errickson alive, and over the course of the interview it became increasingly clear Williams had knowledge of her whereabouts but refused to cooperate fully. At one point the police took Williams to a house in Litde Rock where he stated he thought Errickson could be found. During the interrogation, Williams was provided food, drink, and cigarettes. He requested that an officer he knew be brought to the interview, and he was obliged. He showed familiarity with the criminal justice system and never once asked that the interview be stopped. While the interview was lengthy and intensive, we hold no impermissible coercion occurred.

Finally, Mr. Williams challenges admission of the statement on the basis that the prosecutor should not have used it at trial because the prosecutor knew the statement was false. This assertion is without merit. “It is settled beyond question that a party’s attempt to fabricate evidence is admissible, not merely as an admission under Uniform Evidence Rule 801(d)(2) but as proof relevant to show his own belief that his case is weak. As one court has said in a case involving a fabricated alibi, “Fabrication of evidence of innocence is cogent evidence of guilt.” Harvey v. United States, 215 F.2d 330 (D.C. Cir., 1954). Kellensworth v. State, 276 Ark. 127, 633 S.W.2d 21 (1982).

Denial of pretrial motions

Prior to trial, Williams made several motions attacking on principle the constitutionality of the death penalty and the use of victim-impact evidence. Williams first argues death-qualifying the jury was unconstitutional. This issue has already been settled by this court. We have time and again rejected the notion that death-qualified juries are unconstitutional. Hickson v. State, 312 Ark. 171, 847 S.W.2d 691 (1993); Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986); Rector v. State, 280 Ark. 385, 659 S.W.2d 168 (1983), cert. denied 466 U.S. 988 (1984). The United States Supreme Court has also rejected this argument, holding that death-qualified juries are constitutional. Lockhart v. McCree, 476 U.S. 162 (1986). Davis v. State, 314 Ark. 257, 268, 863 S.W.2d 259 (1993), cert. den. 511 U.S. 1026 (1994).

Next, Williams seeks a finding that Ark. Code Ann. section 5-4-603 is unconstitutional because it requires death on certain findings. This argument is without merit. We have previously held and do so here again that it does not result in a mandatory death sentence. See Hill v. State, 289 Ark. 387, 713 S.W.2d 233 (1986), cert. den. 479 U.S. 1101 (1987); Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995); Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996).

It is also alleged the death sentence is imposed arbitrarily and capriciously in that the death penalty is more likely to be imposed on a black than a white person. Williams cites Patterns of Deaths: An Analysis of Racial Disparities in Capital Sentencing and Homicide Victimization, 37 Stan. L. Rev. 27 (1984). This argument has already been rejected and the article has been considered. We addressed the matter in Lee v. State, 327 Ark. 692, 704, 942 S.W.2d 231 (1997), cert. den. 118 S.Ct. 572 (1997), where we stated:

We considered this argument and law review article in Nooner v. State, supra. In Nooner, we emphasized the United States Supreme Court’s requirement that a discriminatory purpose must be proved on the part of the decision-maker in the defendant’s particular case. McClesky v. Kemp, 481 U.S. 279 (1987). As in Nooner, Lee’s allegations are very general. He has offered no proof to show how his due process or equal protection rights were violated by a biased or arbitrary judge or jury. Thus, due to absence of proof of discriminatory purpose, we cannot say that the trial court erred in denying Lee’s- motion.

See also, Nooner v. State, 322 Ark. 87, 105, 907 S.W.2d 677 (1995) .

Williams next argues that Arkansas’s capital murder statute, Ark. Code Ann. section 5-10-101, is void for vagueness. This argument, too, has already been rejected. Lee, supra, at 702.

Mr. Williams also argues the death penalty is cruel and unusual. This argument has been repeatedly rejected. Hill v. State, 331 Ark. 312, 962 S.W.2d 762 (1998), cert. den. 119 S.Ct. 1451 (1998) citing Pulley v. Harris, 117 S. Ct. 37 (1984).

Next, Williams argues the statutory aggravating circumstances are vague and overbroad. This argument, too, has been rejected. As we stated in Ruiz v. State, 299 Ark. 144, 155, 772 S.W.2d 297 (1989), “The final phase of the argument is that the aggravating circumstances are vague and overbroad. We have considered and rejected that argument previously without disagreement by the Supreme Court.” Gregg v. Georgia, 428 U.S. 153 (1976); Gardner v. State, 296 Ark. 41, 55, 754 S.W.2d 518, 525 (1988); Snell v. State, 290 Ark. 503, 518, 721 S.W.2d 628, 634 (1986), cert. denied, 108 S.Ct. 202 (1987); and Collins v. State, 261 Ark. 195, 200-01, 548 S.W.2d 106 (1977), 119-20, cert. denied, 434 U.S. 878 (1977).”

Williams also asserts victim-impact evidence is unconstitutional. This argument is without merit. As noted in Kemp v. State, 335 Ark. 139, 983 S.W.2d 383 (1998), cert. den. 119 S.Ct. 1471 (1999), we have upheld the constitutionality of the victim-impact statute on many occasions. See Noel v. State, 331 Ark. 79, 960 S.W.2d 439 (1998); Lee v. State, 327 Ark. 692, 942 S.W.2d 231 (1997); Kemp v. State, 324 Ark. 178, 919 S.W.2d 943 (1996) ; Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995). In all of the appellant’s various assertions relative to the death penalty, no demonstration of prejudice or error with respect to its imposition in the specific facts of this case has been persuasively made.

Error in admission of a previous conviction for a subsequent crime

Based upon our holding in Hill v. State, 289 Ark. 387, 731 S.W.2d 233 (1986), Williams contends the trial court erred in admitting evidence of appellant’s kidnapping of Karen Nicols. It is undisputed that Williams abducted Karen Nicols four days following his abduction and murder of Stacy Erikson. Williams argues that in Hill, we construed “previous committed felony” to mean evidence of criminal acts occurring prior to the acts for which the defendant is now being tried. He asserts that the purpose of this aggravating circumstance is to show the defendant’s history of violence. Appellant misconstrues our holdings on this point. In Hill, we upheld the admission of the crimes used to support a finding of an aggravating circumstance. In construing the meaning of “previous felony”as an aggravating circumstance, we stated:

Since there are other avenues by which the state can prove crimes immediately connected with the principal crime, the only logical conclusion is that section (3) applies to crimes not connected in time or place to the killing for which the defendant has just been convicted. In this case the crimes used to prove an aggravated circumstance involved other victims, in another place and previously in time. Therefore, they were properly used as an aggravating circumstance. (Emphasis added.)

From a careful reading of Hill, it is apparent that it did not lay down an inviolate rule that “previous felony” invariably means actions occurring before the killing sub judice. Rather, it means that it pertains to crimes not connected in time and place. It just so happened that in Hill, the alleged felony occurred at a different place and at a different time which was prior to the killing for which Hill was charged. This analysis of Hill is supported by our later holding in Sanders v. State, 317 Ark. 328, 878 S.W.2d 391 (1994).

In Sanders, the appellant contended that the trial court erred in admitting evidence of a murder conviction as an aggravating circumstance where the murder occurred approximately one month after the murder for which he was then being tried. As a case of first impression, we cited persuasive authority from other jurisdictions. We noted the distinction between our statute using the term “previous felony” and the statutes of those jurisdictions which used the term “previous conviction” or in the case of Florida which used the term “previous crimes.” We then construed our statute involving previous felony, Ark. Code Ann. § 5-4-604(3), as follows:

Implicit in the Arkansas statute’s phrase “previously committed another felony,” which itself is supported by the statutory elaboration of the element of the “the use of threat of violence” and “the creation of a substantial risk of death or serious physical injury,” is at least the contemplation of a conviction. Indeed, proof of a conviction serves to establish the aggravating circumstance of a previous violent felony. And, it should be recalled, the Florida court stressed in Daugherty that the purpose of the statute was to ensure that “any violent crime for which there was a conviction at the time of the sentencing should be considered as an aggravating circumstance.” (Citation omitted.)

Ultimately, we held that “the trial court did not err in allowing the State to introduce evidence of Sanders’s conviction for the murder of Frederick LaSalle.” Id. at 339. We based that holding on the rationale that the “fundamental thrust of the Arkansas aggravating-circumstances statute is prospective . . . Naturally, a violent felony that was committed after the killing in question (but which resulted in a conviction prior to the sentencing hearing) would have considerable bearing on a convicted murderer’s propensity to ‘strike again.’” Id. at 338. Hence, it is evident that the purpose of this aggravating circumstance is not simply to show the defendant’s violent history, as appellant contends, but it is also intended to show the defendant’s propensity for a violent future. “Previous felony” can thus include felonies for which the defendant was convicted prior to the sentencing phase of the murder trial even though the underlying felonious conduct occurred after the murder.

In the instant case, Williams, therefore, mistakenly asserts that a violent felony is not admissible as an aggravating circumstance unless it was committed previous in time to the capital murder at issue. Ms. Errickson was kidnapped, raped, and murdered on November 20, 1994. Karen Nichols was kidnapped on November 24, 1994. However, Williams’s conviction on the Karen Nichols kidnapping predates the trial on Ms. Errickson’s murder but under Hill and Sanders is admissible as a section 5-4-604(3) aggravating circumstance of a previous felony because it was not connected in time or place to the murder and demonstrates a propensity for further violent conduct. The federal constitution permits both a backward-looking and a forward-looking inquiry. Tuilaepa v. California, 512 U.S. 967 (1994). We hold, therefore, that the trial court did not err in permitting the State to establish a section 5-4-604(3) aggravating circumstance by admission of a kidnapping conviction based upon an abduction occurring subsequent to the capital murder.

Admission of testimony of a rape for which he was tried but not convicted

Williams was convicted for the November 24, 1994, kidnapping of Karen Nichols. There was also a rape charge; however, the jury deadlocked, and the rape charge was nol prossed. We do not reach the issue of whether a previously committed felony for which there is no conviction may be considered by the jury as an aggravating circumstance under Ark. Code Ann. section 5-4-604(3) because we find only the conviction for kidnapping was introduced. A review of the record shows the prosecutor introduced evidence of appellant’s 1986 aggravated-robbery conviction and the Karen Nichols kidnapping conviction. The record reveals the following sequence of events relative to the Nichols kidnapping:

1. After the jury left the courtroom to deliberate on guilt, the State told the court in the penalty phase the aggravating circumstances would be:
a. “Pecuniary gain;”
b. “Cruel and depraved;” and,
c. “aggravating robbery prior, kidnapping prior.” TR 1040.
2. A side-bar discussion during the penalty phase indicates the aggravated robbery from 1986 and the kidnapping of the victim on November 24, 1994, would be introduced. TR 1054 and 1057.
3. Defense counsel stated in a discussion with the trial court, “[A]s to the kidnapping, the Court has previously ruled that that is a crime of violence, and I believe there is sufficient case law to back that up. There was also in that case a charge of rape that the jury hung on, and the State later nol-prossed that case. I would ask there be no mention of that activity.” TR 1041.
4. The State countered that the kidnapping was for the purpose of deviate sexual activity, and therefore, the activity was part of the kidnapping conviction. The trial court stated, “Yeah, I think it was kidnapping for the purpose of, and that’s not a conviction of the rape.” TR 1041-1042.
5. In the course of summing up on the aggravating circumstances, the trial court notes there is proof of two priors; however, the prosecutor when asked about witnesses states, “We’ll put on Karen Nichols, as to proof of the rape.” TR 1045.
6. Still later in the penalty phase the judge stated, “She’s [Karen Nichols] going to get into the purpose of the kidnapping. Well, I’m overruling an objection and you’re going to have to live with whatever the folks upstairs. . . .” The Prosecutor stated, “I understand.” TR 1058.
7. The victim was specifically asked by the prosecutor, “What, if anything, did he do to your body?” She testified of the events including demands she disrobe, digital penetration and Williams’s simultaneous activity. TR 1061.
8. Defense counsel states, “Your honor, I want to renew my previous motion at this time to any discussion by this lady of any sexual offense, aside from the kidnapping of which he was convicted.” TR 1056.
9. The defense asserts the prosecution was going to get into “sexual contact” with Karen Nichols. The prosecutor states, “Absolutely,” and states the kidnapping was for the purpose of deviate sexual activity.
10. In closing on the penalty phase, the prosecutor stated, “The second aggravating circumstance, Ladies and Gentlemen, are prior violent felonies. Does Mr. Williams have prior violent felonies? Aggravated robbery, yes; kidnapping, yes. You heard from Karen Nichols. You heard what happened to her. We’ve proven to you beyond a reasonable doubt.” TR 1097.

Williams was convicted of kidnapping Karen Nichols for the purpose of deviate sexual activity. The code provides in pertinent part:

Ark. Code Ann. § 5-11-102. Kidnapping.
(a) A person commits the offense of kidnapping if, without consent, he restrains another person so as to interfere substantially with his liberty with the purpose of:
(4) Inflicting physical injury upon him, or of engaging in sexual intercourse, deviate sexual activity, or sexual contact with him. . .

The previous felony at issue is kidnapping for the purpose of deviate sexual activity. There was no mention to the jury of the rape charge. There was no introduction of the elements of rape or argument of rape as to Karen Nichols. Based upon defense counsel’s argument at trial, it appears Williams felt the jury should only be told that the previous felony was kidnapping and that kidnapping is a violent crime. However, the specific crime for which he was convicted included sexual activity. We hold the court did not err in admitting Karen Nichols’s testimony.

Error in introduction of the Shellstop video and Tammy Victoria

Williams argues the events with Tammy Victoria are not relevant and were prejudicial. “This court has repeatedly ruled that trial courts have broad discretion in deciding evidentiary issues, including the admissibility of evidence under Rules 403 and 404(b), and that those decisions will not be reversed absent an abuse of discretion. See, e.g., Neal v. State, 320 Ark. 489, 898 S.W.2d 440 (1995); Lindsey v State, 319 Ark. 132, 890 S.W.2d 584 (1994). We conclude appellant has failed to show an abuse of discretion.” Sasser v. State, 321 Ark. 438, 447, 902 S.W.2d 773 (1995). The evidence is relevant, however, for the permissible purpose of showing motive, opportunity, intent, and a plan. Arkansas Rule of Evidence Rule 404(b) provides for admission of such evidence. The similarity of circumstances between the two events is sufficient to support the trial court’s decision. Sasser v. State, 321 Ark. 438, 902 S.W.2d 773 (1995).

Crime scene and autopsy photos

Williams next argues the photos did not have a tendency to prove facts but rather were intended to inflame the jury. All photographs were not admitted. The trial court carefully reviewed the photos. The trial court showed care that the photos not be cumulative and that each served to prove a fact. Specifically, the autopsy photos were in aid of the medical examiner Dr. Stumer’s testimony. “It is well settled that the admission and relevancy of photographs is a matter within the sound discretion of the trial court. Carmargo v. State, 327 Ark. 631, 940 S.W.2d 464 (1997). We have further held that even the most gruesome photographs may be admissible if they tend to shed light on any issue, to corroborate testimony, or if they are essential in proving a necessary element of a case, are useful to enable a witness to testify more effectively, or enable the jury to better understand testimony. Id. Here, the State used the three photographs to show the state of the body after the attack and the number of wounds, including one to the victim’s back and another defense wound and slash cut to his wrist.” Chase v. State, 334 Ark. 274, 282, 973 S.W.2d 791 (1998). We do not find the trial court abused its discretion.

Testimony of Paul Gabucci

Finally, Williams asserts it was error to admit the testimony of Mr. Gabucci, which placed Jimmy Jackson at work at the time of the abduction. Appellant had contended in his statement to police that Jackson was involved in the abduction. He again argues as with regard to his own statement being false, that the prosecution knew Williams’s assertion about Jimmy Jackson was a fabrication. For the same reasons stated above with respect to the statement, the testimony was admissible. Evidence of Williams’s lies to throw the blame on others casts light on his own culpability.

Rule 4-3 (h)

In compliance with Ark. Sup. Ct. R. 4-3 (h), the record has been examined for all objections, motions, and requests made by either party that were decided adversely to appellant, and no error has been found.

Affirmed.

        Daugherty v. State, 419 So.2d 1067 (Fla. 1982); Ex Parte Coulter, 438 So.2d 352 (Ala. 1983); State v. Steelman, 612 P.2d 475 (Ariz. 1980).


source: Caselaw Access Project

author: Per Curiam:.

license: Public Domain

text:
    ARKANSAS DEPARTMENT of HUMAN SERVICES, Division of Child Care and Early Childhood Education v. Sandra HUDSON, d/b/a Toddlers Inn Day Care
    99-256
    991 S.W.2d 605
    Supreme Court of Arkansas
    Opinion delivered June 10, 1999

      Frank J. Wills, III, for appellant.

      No response.
   Per Curiam:.

On May 13, 1998, the Arkansas Department of Human Services (DHS) revoked Sandra Hudson’s child-care license, and Hudson appealed that decision to the circuit court, which stayed the DHS decision pursuant to Ark. Code Arm. § 25-15-212(c) (Repl. 1996) of the Arkansas Administrative Procedure Act. See Ark. Code Ann. §§ 25-15-201 to 214 (Repl. 1996 and Supp. 1997). Section 25-15-212(c), in relevant part, provides “the filing of the petition does not automatically stay enforcement of the agency decision, but the . . . reviewing court may do so upon such terms as may be just.” After 120 days expired from the entry of the circuit court’s stay order, DHS moved to vacate the order under Ark. Code Ann. § 20-78-206 (d) (Supp. 1997) of the Child Care Facility Licensing Act which provides that if the reviewing court does not issue its findings within 120 days of the issuance of the court’s stay order, the stay shall be considered vacated.

The circuit court filed no findings within the 120-day period, and instead, the trial court entered a second stay order. Contending that the circuit court’s second stay order violates § 20-78-206 (d) and that the stay should be vacated, DHS seeks an interlocutory appeal under Supreme Court Rule l-2(a)(3) and Rule 2(a)(6) of the Rules of Appellate Procedure — Civil because the appeal involves an injunction.

DHS fails to denote how, for appeal purposes, a “stay order” is the equivalent of an injunction. In fact, while Rule 2(a)(6) allows a party to appeal from an interlocutory order “by which an injunction is granted, continued, modified, refused, or dissolved or by which an application to dissolve or modify an injunction is refused,” a trial court’s order is not appealable if it is merely intended to aid in the determination of the issues raised in the complaint and nothing more. Tate v. Sharp, 300 Ark. 126, 777 S.W.2d 215 (1989). Here, the circuit court’s stay order is not an injunction, but even if it were, the order appears to have been entered to aid in the determination of the issues pending below.

We accept jurisdiction of this case to permit DHS and Hudson to brief whether the stay order issued by the circuit court is an appealable order under the appellate rules relied on by DHS. The clerk of this court will expedite this case and promptly schedule dates for the filing of briefs by the parties.


author: Per Curiam.

text:
    Heath KENNEDY v. STATE of Arkansas
    CR 97-931
    991 S.W.2d 606
    Supreme Court of Arkansas
    Opinion delivered June 10, 1999
    [Petition for rehearing denied September 9, 1999.]

      Jeff Rosenzweig, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., and James Gowen, Law Student Admitted to Practice Pursuant to Rule XV(E)(l)(b) of the Rules Governing Admission to the Bar, for appellee.
   Per Curiam.

The appellant, Heath Kennedy, was convicted of capital felony murder and was sentenced to a term of life in prison without parole. We affirmed the conviction and sentence in Kennedy v. State, 325 Ark. 3, 923 S.W.2d 274 (1996). Kennedy subsequently filed a timely petition for postconviction relief pursuant to Arkansas Criminal Procedure Rule 37. The Circuit Court denied relief on all of the claims in Kennedy’s petition, and Kennedy now appeals that order. We affirm.

The capital felony murder charge that was filed against Kennedy arose from his participation in the robbery of a Subway Sandwich Shop in El Dorado. During the robbery, the cashier on duty, Leona Cameron, was shot and killed by Kennedy’s accomplice, Wade Miller. During the trial, Kennedy’s defense to the capital murder charge was that he did not know of Miller’s intentions to use the gun or shoot anyone, that he protested when Miller pulled out the gun during the robbery, and that he had no role in the fatal shooting of Ms. Cameron. In a manner consistent with this defense, Kennedy’s trial counsel sought to have the jury instructed on robbery as a lesser included offense of capital felony murder. She argued that a rational basis for the instruction existed in evidence that indicated that Kennedy told both law enforcement officials and a friend that while he participated in the robbery, he did not commit the homicidal act, and that in light of this evidence, the jury should be given the option of acquitting Kennedy of the homicidal act and finding him guilty of robbery. Trial counsel also cited two cases from this court, Mullins v. State, 303 Ark. 695, 799 S.W.2d 550 (1990) and Carmichael v. State, 296 Ark. 479, 757 S.W.2d 944 (1988), and Ark. Code Ann. § 5-1-110, that support the proposition that robbery, as the underlying offense for the capital felony murder charge, is a “lesser included offense” that the jury may be instructed to consider. The trial court, finding that robbery is not a lesser included offense of capital felony murder, denied the instruction. Kennedy did not assign error to the denial of the instruction in the direct appeal.

In his petition for postconviction relief, Kennedy alleged that the trial judge committed fundamental error when he refused to allow the defense to proffer an instruction for robbery, the underlying felony of the capital murder charge, as a lesser included offense of capital felony murder. Kennedy also alleged that, in the alternative, his trial counsel was ineffective for not citing certain cases from this court and United States Supreme Court in support of the instruction, and for not seeking an instruction for aggravated robbery as well as robbery. Kennedy also alleged that his appellate counsel was ineffective for not assigning error to the trial court’s ruling and fully briefing the argument on appeal. Kennedy now assigns error to the Circuit Court’s denial of relief on these claims.

Kennedy first argues that the Circuit Court erroneously denied relief on his allegation that the trial court committed fundamental constitutional error when it refused to instruct the jury on robbery as a lesser included offense of the capital felony murder charge. The trial court refused to so instruct the jury because it concluded that robbery was not a lesser included offense of capital felony murder. In this appeal, Kennedy asserts an interpretation of our case law and Ark. Code Ann. § 5-1-110 that supports the notion that robbery is a lesser included offense of capital felony murder.

The State, in response, first contends that Kennedy cannot raise this issue in a Rule 37 proceeding. According to the State, Kennedy’s argument is an allegation of trial error that should have been raised on direct appeal, and for that reason, is not a cognizable claim for postconviction relief. Kennedy, on the other hand, contends that he can raise the issue on the basis that the right to have the jury instructed on lesser included offenses that are supported by a rational basis in the evidence is a fundamental right, and as such, a violation of that right can be raised in a Rule 37 proceeding. As authority for his argument, Kennedy cites Beck v. Alabama, 447 U.S. 625 (1980).

We have previously held that even constitutional issues must be raised in the trial court and on direct appeal, rather than in Rule 37 proceedings. Finley v. State, 295 Ark. 357, 748 S.W.2d 643 (1988). Rule 37 is a postconviction remedy, and as such, does not provide a method for the review of mere error in the conduct of the trial or to serve as a substitute for appeal. Hulsey v. State, 268 Ark. 312, 595 S.W.2d 934 (1980). We have made an exception, however, for errors that are so fundamental as to render the judgment of conviction void and subject to collateral attack. Collins v. State, 324 Ark. 322, 920 S.W.2d 846 (1996). In Collins, for example, we held that the right to trial by a twelve-member jury is a fundamental right that fell within the exception.

As indicated above, Kennedy asserts that the right to have the jury instructed on all lesser included offenses that are supported by a rational basis is a fundamental right, and therefore, a trial error involving a violation of that right can be raised for the first time in a proceeding under Rule 37. In support of this assertion, Kennedy cites Beck v. Alabama, supra, in which the Supreme Court held that an Alabama statute that prohibited lesser included offense instructions in capital cases was unconstitutional because it violated the Eighth Amendment. Kennedy further argues that our cases have recognized the importance of lesser included offense instructions because we have previously held that the jury must be so instructed even when there is the “slightest evidence” to support a finding of a lesser included offense. We conclude that the right to have the jury instructed on all lesser included offenses supported by the evidence is not a fundamental right that warrants review of the omission of such instructions for the first time in a Rule 37 proceeding.

In Beck, the Supreme Court had to apply constitutional principles to the Alabama death penalty statute. In that case, Beck was charged with the capital offense of robbery-intentional killing, or “robbery or attempts thereof when the victim is intentionally killed by the defendant.” Beck’s own testimony revealed that along with an accomplice, he participated in the robbery of an eighty-year-old man in his home. He maintained, however, that he did not participate in killing the victim. According to Beck, as he was attempting to bind the victim with rope, his accomplice unexpectedly struck the victim, causing his death.

Under the Alabama death-penalty statute, the requisite intent to kill could not be supplied by the felony murder doctrine. Felony murder was therefore a lesser included offense of the capital crime of robbery—intentional killing. The death penalty statute also prohibited, however, the trial judge from giving the jury the option of convicting the defendant of a lesser included offense. Instead, the jury was given the choice of either convicting the defendant of the capital crime, in which case it was required to impose the death penalty, or acquitting him, therefore allowing him to escape all penalties for his alleged participation in the crime. The Supreme Court held that the statute was unconstitutional under the Eighth Amendment because it reasoned that a jury that believed that the defendant was innocent of the capital charge, yet not completely without guilt in the criminal episode, could chose to convict the defendant of the capital offense in the absence of other alternatives. Beck v. Alabama, 447 U.S. at 627-629.

This case differs substantially from Beck because the jury was not given an “all or nothing” choice as it determined the degree of Kennedy’s responsibility for Ms. Cameron’s death. The record reveals that the jury was instructed to determine Kennedy’s guilt according to both premeditated capital murder and capital felony murder with robbery as the underlying felony. Additionally, the jury was also instructed to consider the lesser included instructions of first-degree felony murder, second-degree murder, and manslaughter. In contrast to the situation in Beck, the trial court only withheld a single alternative instruction from the jury, whereas the jury in Beck could chose between only the death penalty and complete acquittal. Consequently, Beck provides no support for the proposition that the omission of a single lesser included instruction from the jury, when others have been given, is a fundamental error that would render the judgment void or subject to collateral attack.

There is also no support in Arkansas case law for the proposition that the denial of a single lesser included instruction, where others have been given, is fundamental error. We have clearly indicated that we would not apply the harmless-error analysis when a fundamental right is violated. Hagen v. State, 315 Ark. 20, 864 S.W.2d 856 (1993). In Gidron v. State, 316 Ark. 352, 872 S.W.2d 64 (1994), however, we held that the failure to instruct on a lesser included offense is harmless error where a jury has been instructed on some lesser included offense, yet convicted the defendant on a greater one. Accordingly, we decline to hold that the right to a single lesser included offense instruction is a fundamental right, and Kennedy is therefore precluded from assigning error to the denial of that instruction for the first time in a Rule 37 proceeding.

Kennedy makes the alternative arguments that his trial counsel was ineffective for not arguing more vigorously for the submission of the robbery instruction and for not seeking an instruction on aggravated robbery, and that appellate counsel was ineffective for not raising the denial of the instruction as a allegation of error in the direct appeal. To this end, Kennedy argues that robbery is a lesser included offense of capital felony murder. We need not decide that issue, however, in order to resolve the ineffective-assistance-of-counsel claims.

To prevail on a claim of ineffective assistance of counsel, the petitioner must show first that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment. Second, the petitioner must show that the deficient performance prejudiced the defense, which requires showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. A court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. The petitioner must show there is a reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. In making a determination on a claim of ineffectiveness, the totality of the evidence before the judge or jury must be considered. Strickland v. Washington, 466 U.S. 668 (1984).

Kennedy desired the robbery instruction in the event that the jury found him guilty of the robbery, but agreed with his defense that he had no part in the homicide. The record reveals, however, that the jury was instructed to consider an affirmative defense according to Ark. Code Ann. § 5-10-101 (b), (Supp. 1995), which provides:

It is an affirmative defense to any prosecution under subdivision (a)(1) of this section for an offense in which the defendant was not the only participant that the defendant did not commit the homicidal act or in any way solicit, command, induce, procure, counsel, or aid its commission.

According to this instruction, if the jury found that Kennedy did not participate in the homicidal act, it would have acquitted him of capital felony murder. Under these circumstances, it hardly seems desirable to still, be subject to conviction for robbery. Therefore, trial counsel did not perform deficiently by failing to seek to have the jury instructed on aggravated robbery or for not arguing more vigorously for the submission of the robbery instruction. Likewise, appellate counsel was not ineffective for omitting the denial of the instruction from the assignments of error argued in the direct appeal.

Affirmed.

       In Schad v. Arizona, 501 U.S. 624 (1991), the Supreme Court underscored the limited holding of Beck, and its inapplicability to cases where other lesser included offense instructions are given. In that case, the defendant was charged with first-degree felony murder with robbery as the underlying felony. The jury was given the option of convicting Schad of the lesser included offense of second-degree murder. Schad, citing Beck, sought to have robbery also submitted as a lesser included offense of first-degree felony murder. Without deciding whether robbery is a lesser included offense of first-degree felony murder, the Supreme Court explained how its decision in Beck could be of no help to Schad:
      Unlike the jury in Beck, the jury here was given the option of finding petitioner guilty of a lesser included noncapital offense, second degree murder. While petitioner cannot, therefore, succeed under the strict holding of Beck, he contends that the due process principles underlying Beck require that the jury in a capital case be instructed on every lesser included instruction supported by the evidence, and that robbery was such an offense in this case.
      Petitioner misapprehends the conceptual underpinnings of Beck. Our fundamental concern in Beck was that a jury convinced that the defendant committed some violent crime but not convinced that he was guilty of a capital crime might nonetheless vote for a capital conviction if the only alternative was to set the defendant free with no punishment at all. . . . We repeatedly stressed the all- or-nothing nature of the decision with which the jury was presented. . . . The central concern of Beck simply is not implicated in the present case, for petitioner’s jury was not faced with an all-or-nothing choice between the offense of conviction (capital murder) and innocence.


text:
    Russell L. and Sally KIKER v. Robert W. McCORKINDALE
    99-544
    991 S.W.2d 605
    Supreme Court of Arkansas
    Opinion delivered June 10, 1999

      J.D. Moon, for petitioners.
    No response.
   Per Curiam.

Since the circuit court entered its order on April 29, 1996, to compel plaintiff David Muszynski to answer the defendants Russell L. and Sally Kikers’ interrogatories and requests for documents, on or before May 15, 1996, there have been at least sixteen motions, responses, or other pleadings filed in this matter. Nonetheless, the record fails to reflect the respondent Robert W. McCorkindale, Circuit Judge, has been asked to set a hearing to rule on any of those motions or requests, the last of which was filed on April 5, 1999. Apparently, after plaintiff obtained new counsel sometime in June of 1998, plaintiff has responded to all of the defendants’ motions, but the defendants’ position has been one indicating plaintiffs responses are now too late and petitioners’ discovery responses and requests should be abated. The record fails to reflect the circuit court was requested to rule on the defendants’ motion to abate discovery.

Obviously, this is a suit that has lingered too long in the judicial system, but the record fails to reflect the trial court is solely at fault, especially since the record reveals the court was never requested to act on the many pleadings filed in this case. Therefore, we deny the defendants/petitioners’ request for writ of mandamus from the respondent to enforce the circuit court’s early order of April 29, 1996, by dismissing plaintiffs complaint, especially since plaintiff has filed responses to the defendants’ discovery requests beginning in June of 1998, and no hearing had previously been requested by the parties or held by the circuit court, bearing on those discovery requests and responses.


author: W. H.“Dub” Arnold, Chief Justice. Ray Thornton,

text:
    Charles Laverne SINGLETON v. Larry NORRIS, Director, Arkansas Department of Correction
    CR 98-218
    992 S.W.2d 768
    Supreme Court of Arkansas
    Opinion delivered June 17, 1999
    [Petitions for rehearing denied July 15, 1999.]

      Jeff Rosenzweig, for appellant.

      Mark Pryor, Att’y Gen., by: Todd L. Newton, Ass’t Att’y Gen., and Kelly K. Hill, Deputy Att’y Gen., for appellee.

         Reporter’s note: Both appellant and appellee filed petitions for rehearing.

   W. H.“Dub” Arnold, Chief Justice.

The primary legal issue presented in this case is whether the State may mandatorily administer antipsychotic medication to a condemned prisoner, in order to keep him from being a danger to himself and others, when a collateral effect of that medication is to render him competent to understand the nature and reason for his execution.

Appellant, Charles Singleton, was sentenced to death in 1979 for the brutal murder of Mary Lou York. He was treated for psychiatric problems in prison for years. In 1997, he voluntarily ceased taking antipsychotic medication. He again became psychotic, according to his treating psychiatrist. In August of 1997, the Medication Review Panel agreed with his psychiatrist’s request to medicate him involuntarily. While under the regimen of involuntary medication, appellant lost his last round of appeals. Governor Mike Huckabee set an execution date of March 11, 1998. The Department of Correction continued to treat appellant with involuntary medication.

Appellant filed, in Jefferson County Circuit Court, a complaint and petition for declaratory judgment and petition for issuance of all writs and orders necessary to enforce declaratory judgment. Through those filings, appellant sought to prohibit his execution as long as his competency to be executed was being obtained through involuntary medication. He also sought a stay of execution in the trial court and this Court. On March 9, 1998, we granted a stay of execution to permit him to litigate the issue. After a hearing, the trial court denied appellant’s petition for declaratory judgment. From the denial of relief, appellant now brings this appeal.

Appellant asserts that the State cannot involuntarily medicate him into competency and then execute him; appellant asserts that the trial court erred in finding that the State’s involuntary medication of appellant was appropriate. Appellant contends that making him artificially competent to be executed by the administration of antipsychotic drugs violates his federal and state constitutional rights of due process of law, protection against cruel and unusual punishment, protection against unreasonable searches and seizures, in that it would violate the rights of privacy and autonomy protected by the guarantees of the Fourth Amendment and Art. 2, § 15, of the Arkansas Constitution, and Ark. Code Ann. § 16-90-506.

Further, appellant has not contested the appropriateness of the involuntary administration of medication under Washington v. Harper, 494 U.S. 210, 110 S.Ct. 1028 (1990) (holding that medicating an inmate against his will in order to protect him from himself and others is legitimate), except to assert that to the extent the involuntary administration of medication might have been appropriate when it was originally ordered in August of 1997, following a Harper evaluation conducted by the Medication Review Panel, such administration ceased to be valid as a medical necessity for appellant’s own good when his stay of execution was dissolved and an execution date was proclaimed. We disagree with appellant on all points and affirm the trial court.

Regardless of whether an execution date was set, the involuntary administration of medication was appropriate under Washington v. Harper, supra, for appellant’s own good and for the security of the institution in which he is incarcerated; it remains appropriate as long as appellant is alive and is either a potential danger to himself or others. This Court must look to the intent of the State in its decision to involuntarily medicate appellant. The State has a due process obligation to provide appropriate medical care to persons in its custody. City of Revere v. Massachusetts General Hospital, 463 U.S. 239, 103 S.Ct. 2979 (1983); West v. Atkins, 487 U.S. 42, 108 S.Ct. 2250 (1988).

Here, the State contends that the medication is necessary for appellant’s own good and for the safety of others. The intent of the State was not to medicate him in order to make him competent to be executed. Further, appellant has not contested the appropriateness of the involuntary administration of medication under Washington v. Harper.

In its order, the trial court made several findings of fact and law. Appellant asserts that some of the trial court’s findings are erroneous to the validity of the decision. In particular, appellant asserts that the trial court’s finding that “it had not been conclusively proven to this court that Singleton is incompetent to be executed without his medication” (emphasis added), contains an erroneous formulation of the burden of proof by using the word “conclusively.” We disagree.

The trial court found that at the time of the hearing and as stipulated, Singleton was competent to be executed. Although a Ford hearing was never conducted while appellant was off the medication, appellant does not contest that at the time of the hearing he was competent to be executed under the Ford v. Wainwright standard. See Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595 (1986) (holding that the Eighth Amendment prohibits the execution of an insane person whose mental illness prevents him from comprehending the reasons for the penalty or its implications). However, appellant asserts that his competency is a result of the involuntary medication and that being required to “conclusively” prove that he is incompetent to be executed without the medication requires a much greater burden of proof than is appropriate under the law. We hold that because appellant presented no evidence whatsoever as to his incompetency, the use of the term “conclusively” by the trial court was inconsequential.

Appellant had several opportunities to request a Fori hearing in order to have his competency evaluated whole off the medication, yet he chose not to. The United States District Court for the Eastern District of Arkansas, Garnett Thomas Eisele, J., expressly offered appellant a Ford hearing in Singleton v. Norris, PB-C-93-425 (E.D. Ark. July 25, 1995) (Norris), which appellant rejected. In the trial court below, appellant did not raise the issue of the Ford hearing. Finally, a Ford hearing was not even requested in the instant appeal. We hold that appellant has, therefore, failed to offer proof of his incompetence.

As appellant has neither contested Washington v. Harper nor taken an appeal from same, we hold that the State had a burden to medicate appellant under Harper, that said burden continues, and that the State has met and is meeting its burden. We further hold that because appellant never requested a Ford hearing while off the medication, Washington v. Harper is controlling, and the collateral effect of the involuntary medication rendering him competent to understand the nature and reason for his execution is therefore no violation of any due process law. We affirm the trial court.

Affirmed.

Thornton, J., dissents.

Ray Thornton,

Justice, dissenting. For hundreds of years, it has been a fundamental law that an insane person cannot be subjected to the death penalty. In Ford v. Wainwright, 477 U.S. 399 (1986), the United States Supreme Court made clear that this fundamental law was secured by the Eighth Amendment. The Supreme Court stated “this Court is compelled to conclude that the Eighth Amendment prohibits a State from carrying out a sentence of death upon a prisoner who is insane.” Id.

In 1990, the United States Supreme Court held that a mentally ill prisoner possessed a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs. Washington v. Harper, 494 U.S. 210 (1990). However, the Court held that “the Due Process Clause permits the state to treat a prison inmate who has a serious illness with antipsychotic drugs against his will, if the inmate is dangerous to himself or others and the treatment is in the inmate’s medical interest.” Id. (emphasis supplied).

By today’s decision, the majority adopts the view that forcing Mr. Singleton to take antipsychotic drugs meets the test imposed by Harper that such treatment must be “in the inmate’s medical interest.” Id.

I disagree that forcible medication that enables a mentally ill prisoner to become competent to be executed can be in the inmate’s medical interest, and I respectfully dissent.


author: W. H. "Dub"Arnold, Chief Justice.

text:
    WESTERN FOODS, INC., and Beverly Enterprises, Inc. v. Richard WEISS, Director of Arkansas Department of Finance & Administration; Tim Leathers, Commissioner of Revenue of the State of Arkansas; Floyd Villines, Pulaski County Judge; James Daily, Mayor of Little Rock; and Jimmie Lou Fisher, Treasurer of the State of Arkansas
    98-612
    992 S.W.2d 100
    Supreme Court of Arkansas
    Opinion delivered June 17, 1999

      Harley Law Firm, by: John H. Haley, for appellants.

      Amanda Mankin and Karla Burnett, for appellant Villines. Thomas M. Carpenter, for appellee Dailey.

      Beth B. Carson, for appellees Weiss and Leathers.
   W. H. "Dub"Arnold, Chief Justice.

This is a case involving the interpretation of Act 536 of 1991, codified as Ark. Code Ann. § 26-74-212 (Repl. 1997), Ordinance No. 16,496 of the City of Little Rock, and Ordinance No. 95-OR-42 of Pulaski County, Arkansas. The relevant facts are not in dispute.

In 1982, by Ordinance NO. 82-OR-12, Pulaski County levied a one percent local sales tax, pursuant to the authority granted by the legislature through Act 991 of 1981, which was amended by Act 26, of 1991. This new provision was codified as Ark. Code Ann. § 26-74-212 and included a portion commonly referred to as the “out-of-county delivery exemption.” Under this provision, a sale by a business in Pulaski County would not have been subject to the Pulaski County sales tax if the goods had been sold to a nonresident of Pulaski County and delivered outside of the county.

In 1991, however, Act 536 changed the manner in which local taxes would be collected, by amending Ark. Code Ann. § 26-74-212 to narrow the “out-of-county delivery exemption” on all but a few sales, those being sales through meter and by route delivery, none of which are applicable in this case. Following this amendment, if the sale was made to a resident, with delivery in a county or city that does not impose a city or county sales tax, the tax would then not be applicable.

In 1993, the City of Little Rock passed Ordinance No. 16,496 to levy a one-half percent sales and use tax, pursuant to Ark. Code Ann. § 26-75-201 (Repl. 1992) et seq. The ordinance provided that the tax would be levied on the receipts from the sale at retail within the city of all items which are subject to state sales tax. In 1995, Pulaski County levied a one-year, one percent sales and use tax by Ordinance 95-OR-42; the tax was levied on sales at retad within the county of all items which are subject to state sales and was effective from October 1, 1995, through September 30, 1996.

Appellant Western Foods sold tangible personal property to customers including appellant Beverly Enterprises. The goods sold to appellant Beverly Enterprises were delivered by appellant Western Foods to locations outside of Pulaski County, Arkansas. According to the testimony of Ed Fason, Vice President and General Manager of Western Foods, a Western Foods sales person would take an order and input the order in his computer, which would be downloaded to Western Foods located in Little Rock. Western Foods would then fill the order and deliver the order by truck to the customer.

The appellants paid taxes to the State in the amount of $56,456.89 on products delivered by Western Foods to Beverly Enterprises located outside Pulaski County, Arkansas, from January 1995 through December 1995. Appellants requested a refund of $56,456.89 for both Pulaski County sales taxes and the City of Litde Rock sales taxes allegedly illegally levied by appellees. On March 27, 1996, the Commissioner of Revenue denied appellants’ request for a refund.

On October 5, 1995, the Central Arkansas Office of Field Audit completed a gross-receipts tax audit of Western Foods and gave notice to Western of a proposed assessment of $196,169.06 for the period of time from December 1991 to November 1994 for goods sold to Beverly Enterprises. On November 13, 1995, Western Foods protested the assessment with the request that the matter be heard by the Office of Hearings and Appeals.

On May 15, 1995, an administrative hearing was held in Little Rock. The administrative law judge ruled against Western Foods on all issues. Western Foods appealed, and the Commissioner ruled against Western Foods on October 25, 1996.

On January 21, 1997, pursuant to Ark. Code Ann. § 26-18-406(a)(1) (Repl. 1992), and within thirty days from the date of the final assessment, Western Foods paid the assessed amount of $196,169.06 under protest. Western Foods and Beverly Enterprises then brought suit against appellees in Pulaski County Chancery Court on May 8, 1996, alleging that the State was illegally exacting the Pulaski County and Little Rock sales taxes. Appellants sought a refund of the taxes paid, injunctive relief, and attorneys’ fees.

On February 16, 1997, appellants moved to certify the cause as a class action, seeking to include all similarly situated taxpayers in Pulaski County. On May 2, 1997, the chancery court issued an order declaring that the tax was not an illegal exaction. On May 30, 1997, appellants then filed a motion for reconsideration and clarification regarding the illegal-exaction claims and the question of class certification. Also on May 30, 1997, appellants filed a second amended complaint, again requesting certification as a class action, requesting a refund of the $56,456.89 and reimbursement of the $189,198.06, and claiming violations of their civil rights.

On February 4, 1998, the chancellor issued an order dismissing the complaint with prejudice. After entry of this final order, appellants filed a timely notice of appeal. Appellants assert the following on appeal:

1) That the State of Arkansas has illegally exacted and is continuing to illegally exact the Pulaski County and City of Little Rock retail sales taxes from sales outside the county and city; the Arkansas tax scheme violates Arkansas Constitution Article 16, Section 1, and Amendment 62; and
2) The Chancellor erred in failing to certify this cause as a class action.

We hold that the taxes challenged do not constitute an illegal exaction and hereby affirm the trial court.

It is well settled that chancery cases are reviewed de novo on the record, but we do not reverse a finding of fact by the chancellor unless it is clearly erroneous. Slaton v. Slaton, 336 Ark. 211, 983 S.W.2d 951 (1999). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Id.; RAD-Razorback Ltd. Partnership v. B.G. Coney Co., 289 Ark. 550, 713 S.W.2d 462 (1986). In the instant case, the relevant facts were primarily stipulated by the parties and are not in dispute.

The record is clear that appellants do not dispute the power of the Litde Rock and Pulaski County taxing authorities to impose a sales tax on sales of goods within the city or county. The appellants claim, however, that the State of Arkansas illegally exacted and is continuing to attempt to illegally exact the Pulaski County and Little Rock retail sales tax from sales made outside the county and city. Appellants allege that the Arkansas tax scheme violates Arkansas Constitution Article 16, § 1, and Amendment 62: They further assert that without approval at a special election, neither Pulaski County, the City of Little Rock, nor the State of Arkansas can exact a Pulaski County or Little Rock sales tax on sales occurring outside the City of Little Rock or the County of Pulaski.

We hold that appellants have faded to plead an illegal-exaction claim. This Court has held that two types of illegal-exaction cases can arise under Article 16, § 13, of the Arkansas Constitution. The first type is a “public funds” case, in which the plaintiff contends that public funds generated from tax dollars are being misapplied or illegally spent. The second type is an “illegal tax” case, in which the plaintiff asserts that the tax itself is illegal or contrary to a constitutional or statutory provision. See Ghegan & Ghegan, Inc. v. Weiss, 338 Ark. 9, 991 S.W.2d 536 (1999); Barker v. Frank, 327 Ark. 589, 939 S.W.2d 937; Pledger v. Featherlite Precast Corp., 308 Ark. 124, 823 S.W.2d 852 (1992).

The instant case does not fall into either category. Appellants did not allege in their complaint that funds generated by the Little Rock and Pulaski County sales taxes had been misapplied or illegally spent. Moreover, they did not allege that the local tax ordinances are invalid; and, Act 536 of 1991 cannot be challenged as an illegal exaction because it is not a tax-levying statute.

Appellants contend, however, that this action is in direct conflict with the Arkansas constitutional provisions requiring voter approval prior to municipality or county taxation. The primary issue in this case is whether the State of Arkansas can collect the Pulaski County and Little Rock local sales taxes on sales of tangible personal property to a business located outside of Pulaski County without providing the citizens of Pulaski County or Little Rock an opportunity to vote on whether the local tax would apply to out-of-county or out-of-city deliveries.

In 1981, the General Assembly gave counties and cities the authority to implement a sales tax that included the out-of-county exemption. In 1982, the citizens of Pulaski County voted to implement the tax. In 1991, the General Assembly narrowed, by amendment, the out-of-county exemption for most sales. Appellants contend that since the citizens of Pulaski County have never voted to adopt the amended tax, narrowing the out-of-county exemption, then the county and city cannot begin charging the tax on out-of-county purchases and deliveries.

Appellants’ argument is without merit. First, the citizens of Pulaski County and the City of Little Rock did vote on the sales tax. The legislature set the parameters of the tax and has the authority to modify the tax at any time. Municipalities have only those taxing powers delegated by the General Assembly. See Barnhart v. City of Fayetteville, 321 Ark. 197, 900 S.W.2d 539 (1995). No new tax is being implemented by amending the out-of-county exemption; rather, only the exemption itself is being narrowed.

The General Assembly has the authority to pass a statewide sales tax. It further has the authority to amend the type of exemption found here in a sales tax, without first requiring the municipalities to hold another election to determine if voters agree with the amendment. The General Assembly has delegated the power to levy sales and use taxes to- cities and counties but has not delegated the power to determine which transactions are subject to the tax, who collects the tax, when the tax is due, interest and penalties applicable to delinquent taxes, and other such items.

Further, suits to determine whether the taxpayer transaction falls within an exemption created by statute do not come within the Article 16, § 13, exaction section. We have held that a flaw in the assessment or collection procedure, no matter how serious from the taxpayer’s point of view, does not make the exaction itself illegal. See Pledger v. Featherlite Precast Corp., supra.

The State sets the parameters of the tax and the only decision that a city or county can make is whether to levy the tax. The General Assembly was careful to require that the tax may only be collected from a customer located in another county or city which also has a sales tax. If appellant Beverly Enterprises was located in a county that did not have a sales tax, then the out-of-county exemption would then apply.

Appellants rely on Barnhart, supra, for the proposition that the taxation upon them from the City of Little Rock and Pulaski County is an illegal exaction. The facts in Barnhart, however, are distinguishable from the case at bar. In Barnhart, the City of Fayetteville imposed a sanitation charge of $2.02 on each resident to pay a bonded indebtedness owed by the Northwest Resource Recovery Authority. This Court set aside the sanitation charge, holding that it was a tax that had not been voted upon or approved by the residents of the City of Fayetteville.

Unlike the Barnhart case, in the instant case, the citizens of both Pulaski County and the City of Little Rock had previously voted to levy a sales tax which included the out-of-county delivery exemption. The General Assembly, in its authority as the legislative body that establishes the parameters of a tax, elected to withdraw the out-of-county delivery exemption in 1991. The difference between Barnhart and the facts present here is that the citizens of the City of Fayetteville did not vote on the tax, whereas the citizens of Pulaski County and the City of Litde Rock did vote for the sales and use tax. The legislature later elected to change only the parameters of the tax by narrowing the out-of-county delivery exemption.

Appellants contend that collection of the city and county sales taxes without voter approval is in direct conflict with Arkansas constitutional provisions, citing Article 16, § 1, and Amendment 62. These provisions, however, prohibit the issuance of bonds by a city or county without an election. None of the ordinances challenged in this case were tied to the repayment of bonds. Accordingly, appellants’ argument would have to be based on the requirement of a local election found in Ark. Code Ann. §26-74-207 (Repl. 1997) (counties) and § 26-75-208 (Repl. 1997) (cities), and the question then becomes one of statutory construction.

These provisions require voter approval of local tax ordinances and were followed in this case. They do not require a subsequent election any time the General Assembly modifies an exemption. Therefore, it was not necessary for the citizens of Pulaski County or the City of Little Rock to vote on whether their sales tax applies to sales to out-of-county customers because the General Assembly, composed of representatives from throughout the State, made the decision that sales taxes are applicable to sales made to customers outside of the taxing municipality.

Appellants further assert that this Court’s decision in Daniel v. Jones, 332 Ark. 489, 966 S.W.2d 226 (1998), requires the Court to reconsider the constitutionality of the imposition of a tax when the full nature of the tax is not made known to the electorate when they vote to accept the tax. This ballot title argument was never raised below, and may not be addressed for the first time on appeal. Appellants never challenged the constitutionality of any ordinance or Act 536 of 1991; in fact, they admitted in the trial court that the ordinances were valid, and the validity of Act 536 of 1991 was never challenged below, only its effect.

Notwithstanding appellants’ failure to preserve the argument for appeal, the Daniel case offers no support to appellants’ argument. The facts in Daniel are that the White County local sales and use tax ballot reflected five specific county uses for the tax. The one percent tax was collected by the Arkansas Department of Finance and Administration and remitted to the State Treasurer, who divided the proceeds among White County and the cities within the county on a per capita basis, as required by state law. The county’s share of the tax proceeds was used for the specified county projects. The tax was challenged as an illegal exaction based on Ark. Const., Art. 16, § 11, which provides, in part, that “no moneys arising from a tax levied for one purpose shall be used for any other purpose.” Because the county ordinances and the ballot only listed the specific county projects and did not note that a portion of the tax would go to the cities, the distribution of a portion of the tax to the cities was an illegal use of the tax.

Appellants seem to read Daniel to require an ordinance or ballot to include not only the purpose of the tax proceeds and the particular tax being levied, but a description of taxable and exempt transactions, as well. That is not the law. In Daniel, we cited our holding in the case of Oldner v. Villines, 328 Ark. 296, 943 S.W.2d 574 (1997):

When a tax is enacted by the General Assembly or approved by a vote of the people without the statement of a purpose, the resulting revenues may be used for general purposes. We fail to see how the voting public could be misled on this point. It is only when a diversion of tax revenues occurs from a specific purpose that has been authorized to an unauthorized purpose that an illegal exaction occurs.

328 Ark. at 305, 943 S.W.2d at 579 (emphasis added). Id. at 499.

In the instant case, the ordinances state that the sales tax shall apply to sales of items and services. It would be impossible to enumerate all taxable transactions and exemptions which would apply. State law clearly provides that items which are subject to state sales tax are subject to local tax. State law clearly enumerates various exemptions and describes how the tax is to be collected and enforced. Accepting appellants’ argument would require every ordinance or ballot to provide voters with the excruciating details of local tax application, enforcement, and collection.

Appellants focus on the need for voters to have been informed that there would be no out-of-county or city exemption as a result of Act 536. However, even if the ballot had contained such information, voters would not have been able to claim the former exemption in the first place, unless they were selling to out-of-county buyers; and, the narrowing of the exemption only served to increase local sales tax revenues. Appellants have clearly not established that any of the local taxes at issue constitute illegal exactions. They did not challenge the misappropriation of the tax monies in question, nor did they challenge the underlying tax itself, as required for an illegal exaction to arise. Pledger v. Featherlite Precast Corp., supra.

For all of the foregoing reasons, we hold that Act 536 of 1991 and the tax ordinances of Pulaski County and the City of Little Rock are valid and do not amount to an illegal exaction; we hereby affirm the trial court. Having found no illegal exaction, we therefore need not address appellants’ second point on appeal regarding the certification of this case as a class action.

Affirmed.

Special Associate Justice John Watkins joining.

Brown, J., not participating.