Thomas v. State
2012 Ark. App. 466
| Ark. Ct. App. | 2012Background
- Thomas was convicted by an Ashley County jury of aggravated robbery and commercial burglary with concurrent sentences.
- On appeal, Thomas argues three issues: lack of a lesser-included offense instruction, admission of prior-robbery evidence at sentencing, and denial of a mistrial.
- Event occurred September 24, 2010: a Dollar General employee/storeroom scenario where a gun-wielding man fled, pursued by staff, and escaped in a Dodge van.
- Thomas was identified and confessed after review of surveillance video.
- Evidence at issue includes a separate, prior Lake Village robbery eight days earlier, in which Thomas’s brother acted, with Thomas outside in a vehicle.
- The court affirmed on all issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Lesser-included instruction on attempted aggravated robbery | Thomas asserts a rational basis existed for the instruction. | State contends no evidence supports attempted aggravated robbery. | No abuse; no rational basis to instruct. |
| Admission of Lake Village robbery evidence at sentencing | Lake Village robbery not sufficiently relevant or convict | Evidence relevant to character and aggravating circumstances; admissible at sentencing | Admission affirmed; relevant to aggravation. |
| Denial of motion for mistrial | State comment violated Fifth Amendment non-testifying right | Admonition cured any prejudice; comment insufficient for mistrial | Admonition cured prejudice; mistrial denied. |
Key Cases Cited
- Taylor v. State, 2009 Ark. App. 627 (Ark. App. 2009) (reversible error if no basis for lesser-included instruction)
- Davis v. State, 242 S.W.3d 630 (2006) (no instruction required if no evidence of elements doubted)
- Brown v. State, 378 S.W.3d 66 (2010 Ark. 420) (uncharged prior conduct admissible at sentencing if relevant)
- Crawford v. State, 208 S.W.3d 146 (2005) (prior or subsequent drug conduct admissible as aggravating evidence)
- White v. State, 408 S.W.3d 720 (2012) (evidentiary rules apply at sentencing; some evidence admissible at penalty phase)
- Hudson v. State, 146 S.W.3d 380 (2004) (cautionary instruction can cure prejudice from improper remarks)
- Kemp v. State, 983 S.W.2d 383 (1998) (admonition to jury may cure prejudice in closing)
- N.D. v. State, 411 S.W.3d 205 (2012 Ark. 265) (arguments without authority not addressed)
- MacKool v. State, 423 S.W.3d 28 (2012 Ark. 287) (cautionary instructions impact on reviewing prejudicial conduct)