Thompson v. State
548 S.W.3d 129
Ark.2015Background
- On December 24, 2011, Keye Ratley was shot and killed outside a Little Rock nightclub during an apparent robbery; his brother Tyler was attacked but survived.
- Police linked the murder/robbery to a stolen car and developed Edward Thompson III as a suspect; Tyler later identified Thompson from a photographic lineup.
- Thompson was charged with capital-felony murder, aggravated robbery, theft offenses, and a separate firearms charge (the firearm count later severed); at trial the State proceeded on a misdemeanor theft instead of a felony receiving count.
- The jury acquitted on capital murder but convicted Thompson of first-degree murder, aggravated robbery (and theft), and the jury declined to find firearm enhancements; Thompson received life for murder and concurrent lengthy terms for robbery/thefts.
- On appeal Thompson argued (1) the photographic identification was unduly suggestive and should have been suppressed, and (2) the trial court erred by engaging in an unrecorded ex parte communication with a juror and failing to hold a hearing; he also raised sentencing error discovered on Rule 4-3(i) review.
Issues
| Issue | Thompson's Argument | State's Argument | Held |
|---|---|---|---|
| Admissibility of out-of-court photographic ID | Photo lineup was unduly suggestive because two lineups were shown and Thompson’s photo appeared in both | Argument not preserved: Thompson failed to object to in-court ID; Wicks exception shouldn’t apply | Not preserved; court declines Wicks exception and affirms denial of suppression |
| Ex parte juror communication | Court should have disclosed the communication and held a hearing; failure requires reversal | No contemporaneous objection; record shows the communication was nonprejudicial; appellant bears record burden | No reversible error; posttrial hearing later took place and record shows juror asked whether jurors could question witnesses and judge said no |
| Preservation / Wicks exceptions | Requests review under narrow Wicks exceptions despite lack of contemporaneous objections | Wicks exceptions are narrowly applied; appellant failed to object at trial | Court refuses to expand Wicks; declines to apply exceptions to photographic-ID issue; rejects relief for juror-communication claim |
| Sentencing on underlying felony | Trial counsel argued jury verdicts required robbery (not aggravated robbery) as underlying felony for murder conviction, so aggravated-robbery sentence was improper | State relied on jury verdicts as announced and sought sentencing on aggravated robbery | Court finds error: sentencing on aggravated-robbery must be corrected because the underlying felony for first-degree murder was robbery; reverse and remand for resentencing on that count |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (establishes counsel’s obligations when asserting no meritorious issues on appeal)
- Hayes v. State, 311 Ark. 645 (pretrial-identification burden on appellant)
- Chism v. State, 312 Ark. 559 (trial objection requirement for preserving ID challenge)
- Fields v. State, 349 Ark. 122 (totality-of-circumstances reliability test for suggestive identifications)
- Ellis v. State, 364 Ark. 538 (failure to object to in-court ID bars appellate review)
- Wicks v. State, 270 Ark. 781 (sets narrow exceptions to contemporaneous-objection rule)
- Rushen v. Spain, 464 U.S. 114 (juror-contact principles and harmlessness analysis)
- Bell v. State, 223 Ark. 304 (judicial contact with jury that was prejudicial; basis for a Wicks exception)
- Clark v. State, 373 Ark. 161 (authority to sentence for underlying felonies used in murder charges)
- Barritt v. State, 372 Ark. 395 (discussion of harmlessness and realities of courtroom ex parte communications)