389 S.W.3d 10
Ark. Ct. App.2012Background
- Walker was convicted by a jury of two counts aggravated robbery, two counts first-degree terroristic threatening, and one count second-degree battery, and sentenced as a habitual offender to 95 years, consecutive.
- Walker raised double jeopardy challenges to cumulative sentencing and argued the information lacked contra pacem, rendering it infirm and not amenable to amendment.
- Pretrial, Walker moved to quash for missing contra pacem; the State moved to orally amend: (i) reduce first-degree battery to second-degree battery, (ii) add contra pacem after each count; the court granted both amendments.
- Testimony by Quory Rowden and Trudy McDaniel described the home invasion, threats with a gun, theft of money and property, and the presence of a minor child during the incident.
- During sentencing, the jury recommended consecutive terms; the trial court ordered consecutive sentences, relying on violent circumstances and Walker’s criminal history.
- On appeal, the court conducted de novo review and affirmed, holding no double jeopardy violation, no error in treating offenses as non–lesser-included under Blockburger, and proper use of oral amendments under §16-85-407.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Consecutive sentencing and double jeopardy | Walker claims consecutive terms violate double jeopardy. | Walker contends some offenses are lesser-included and should merge. | No double jeopardy violation; consecutive sentences affirmed. |
| Lesser-included offenses under Blockburger | First-degree terroristic threatening and second-degree battery are lesser-included of aggravated robbery. | Threats and battery share elements with aggravated robbery; merger should occur. | Not lesser-included; each offense requires additional elements; no merger. |
| Continuing course of conduct and §5-1-110 | Terroristic threatening constitutes continuing conduct merged with aggravated robbery. | No continuing-conduct merger; aggravated robbery completed before threat. | No continuing-conduct merger; no double jeopardy issue from §5-1-110. |
| Contra pacem amendment to information | Information lacked contra pacem; amendment impermissible and prejudicial. | Oral amendment under §16-85-407 proper; no prejudice or surprise. | Amendment proper; no error. |
Key Cases Cited
- Blockburger v. United States, 284 U.S. 299 (1932) (elements test; separate offenses require proof of difference)
- Missouri v. Hunter, 459 U.S. 359 (U.S. 1983) (double jeopardy includes multiple punishments for same offense)
- Birchett v. State, 294 Ark. 176 (1987) (battery not included in aggravated robbery; separate offense)
- Hoover v. State, 353 Ark. 424 (2003) (amendments to information; notice and prejudice considerations)
- Johnson v. State, 55 Ark.App. 117 (1996) (amendment of information may occur during trial if no prejudice)
- Caldwell v. State, 295 Ark. 149 (1988) (contra pacem clause admissibility and amendments)
- Smith v. State, 352 Ark. 92 (2003) (firearm-use as a weapon and degree of battery; treatment in charging)
- Smith v. State, 296 Ark. 451 (1988) (terroristic threatening not a continuing offense)