Justin ANDERSON v. STATE of Arkansas
CR 06-29
Supreme Court of Arkansas
November 2, 2006
Rehearing denied December 7, 2006
242 S.W.3d 229
JIM HANNAH, Chief Justice
CORBIN and IMBER, JJ., would grant rehearing.
Mike Beebe, Att‘y Gen., by: David R. Raupp, Sr. Ass‘t Att‘y Gen., for appellee.
JIM HANNAH, Chief Justice. Justin Anderson appeals his sentence of death by lethal injection. He was convicted of capital murder on January 31, 2002, and sentenced to death. He appealed his conviction and sentence to this court. The conviction was affirmed;
Facts
The sentencing hearing upon remand was moved from Lafayette County to Miller County pursuant to a motion to change venue. All of the events in this case took place in Lewisville, Lafayette County. According to Anderson‘s statement, he was depressed and despondent and decided that he would steal a firearm, kill someone, and then force police to kill him.
On October 2, 2000, Anderson broke the back window of a home in Lewisville and entered it in search of firearms. He located and removed two pistols. He then searched for people to kill but first found the opportunity on October 6, 2000, when he entered the cab of Roger Solvey‘s tractor-trailer at a convenience store. According to Anderson, he found Solvey in the sleeper and fired multiple shots. Solvey was wounded but recovered. On October 12, 2000, Anderson was walking in Lewisville when he saw eighty-five-year-old Clara Creech working in her garden. Anderson told police that he did not know her, that he just shot her. Anderson was picked up as a suspect that same day and after several hours of questioning, and meeting with his brother, he confessed.
Taped Statement
Anderson argues that the circuit court erred in sending his recorded statement to the deliberating jury. The audiotape of Anderson‘s statement had been admitted into evidence and was played for the jury during the trial. He alleges that any playing of the tape by the jury during deliberations violated
What is at issue is a taped statement that was played at trial and admitted into evidence. It was one of the exhibits sent to the jury when it requested the Eason document. What the jury asked for was a paper exhibit. Under
However, Anderson argues that allowing the jury access to the tape during deliberations was a violation of
After the jury retires for deliberation, if there is a disagreement between them as to any part of the evidence or if they have a desire
to be informed on a point of law, they must require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of or after notice to the counsel of the parties.
Anderson alleges that under the analysis in Davlin v. State, 313 Ark. 218, 853 S.W.2d 882 (1993),
The facts of Davlin distinguish it from the present case. In discussing the statute now codified as
The design of the lawmakers in the enactment of this statute was to protect defendants on trial as well as the State, after causes have been finally submitted to the jury for its deliberation and verdict, against any further steps being taken in the case in regard to the evidence or the law unless in open court and after notice to the counsel of the respective parties.
Aydelotte v. State, 177 Ark. 595, 603-04, 281 S.W. 369, 372 (1926); see also Golf v. State, 261 Ark. 885, 552 S.W.2d 236 (1977); Boone v. State, 230 Ark. 821, 327 S.W.2d 87 (1959). The court has more recently stated that the purpose of
The jury was given the tape they had already heard to replay if they chose to do so. In Davlin, the videotape had portions that were not played at trial:
The record states that the videotape would be replayed in the jury room just as it was at trial, with certain prejudicial portions deleted. However, the record is silent with respect to what actually occurred in the jury room and therefore does not assure us there was a lack of prejudice in the replaying of the tape.
Davlin, 313 Ark. at 221, 853 S.W.2d at 884. Thus, while the proposal was to replay the tape just as it had been played at trial, the record did
In Davlin, giving the requested videotape to the jury created the possibility that evidence that was never introduced at trial might be introduced in the jury room. In that case, prejudice had to be presumed because it was impossible to glean from the record whether the prejudicial portions of the tape were deleted as they had been at trial. In the present case, there was no such danger.4 We hold that there was no violation of
Anderson also alleges that if the jury replayed the tape, it constituted a substantial step, or in other words a critical stage in the criminal proceeding against him requiring that he be present with counsel. It is a basic principle of both our state‘s and our nation‘s constitutional law that a criminal defendant has the right to be present in person and by counsel at any critical stage in his or her case. Smith v. State, 343 Ark. 552, 39 S.W.3d 739 (2001); Davlin, supra. A criminal defendant has a Sixth Amendment right to an attorney at every critical stage of the proceedings. Hammett v. Texas, 448 U.S. 725 (1980). A criminal defendant has a due process right to be present at critical stages of the proceeding. Kentucky v. Stincer, 482 U.S. 730 (1987). The complete denial of counsel during a critical stage of a judicial proceeding mandates a presumption of prejudice because the adversary process itself has been rendered presumptively unreliable. Roe v. Flores-Ortega, 528 U.S. 470 (2000).
A critical stage in a criminal proceeding is every stage where substantial rights of the criminal defendant may be affected. Rhay v. Washington, 389 U.S. 128 (1967). “A critical stage in a criminal proceeding is characterized by an opportunity for the exercise of judicial discretion or when certain legal rights may be lost if not exercised at that stage.” Commonwealth v. Johnson, 574 Pa. 5, 13, 828 A.2d 1009, 1014 (2003).
The dissent argues that Davlin, supra, stands for the proposition that any “representation of evidence” constitutes a substantial step or critical stage in the proceedings and must be undertaken in the presence of counsel and the defendant. That interpretation is not consistent with Davlin or the law. Davlin stands for the proposition that the taking of evidence, or in other words the presentation of evidence to the jury for the first time, constitutes a substantial step and requires the presence of counsel and the defendant. In Davlin, portions of the videotape had been deleted when presented at trial, and the record did not reveal whether the deleted portions were reviewed by the jury in the jury room. If the deleted portions were reviewed by the jury, that would constitute the presentation of new evidence. There is no allegation of additional or new evidence being on the tape in the present case.
Anderson objected to submitting the tapes to the jury during deliberations. He argued that it had to be done in open court with him present and represented by counsel. The circuit
Victim-Impact Evidence
Anderson raises six issues in arguing that the circuit court erred in admitting victim-impact evidence. First, Anderson argues that the jury considered and applied the victim-impact evidence as an aggravator in violation of
However, Anderson makes an argument that the jury was confused and believed that the victim-impact evidence offered constituted an aggravating factor. Pursuant to
THE COURT: As stated, he‘s wanting to know what to count as B, aggravating circumstance. Am I correct?
. . .
MR. MARCZUK:5 I think the confusion is because the form has an “s” so they‘re thinking there‘s more than one aggravating circumstance.
THE COURT: I thought I eliminated that.6
MR. MARCZUK: On some you did.
MR. HALTOM: Is form 1008 what we need?7
THE COURT: It‘s a threshold question as to whether we can tell them anything.
MR. MARCZUK: I think the answer is Roger Solvey is the aggravating circumstance. That‘s what they‘re supposed to consider.
Counsel for Anderson responded that the jury should be told that there is only one aggravating circumstance. The State responded that because the jury was on form 3(b), they had already decided on the one aggravator; therefore, when the deliberations reach form 3(b) the jury is to weigh all the circumstances of the case. The State also argued that to tell the jury to only consider the aggravating circumstance of
In Payne v. Tennessee, 501 U.S. 808 (1991), the United States Supreme Court announced that admission of victim-impact evidence does not offend the federal constitution, and that it is relevant to assist the jury in imposing punishment based on a measurement of the injury to society. When the jury posed the question, it was working on form 3 and asking whether it could consider all the evidence in deciding punishment. The victim-impact evidence was relevant, admissible, and properly submitted to the jury to be weighed against evidence regarding punishment. There is no merit to the argument that victim-impact evidence served as an aggravator.
Second, Anderson argues that even if victim-impact evidence is generally admissible on the issue of punishment, it was improperly admitted in this case where it had no tendency in fact to prove or disprove the aggravating and mitigating circumstances at issue. He alleges that to be relevant, the evidence had to make it more or less likely that he shot Solvey or that the mitigators presented were proven. As already noted, victim-impact evidence is admissible and relevant to the question of the punishment to be imposed as a consequence of the injury caused by the crime. Payne, supra.
Third, Anderson argues that
Fifth, Anderson argues that
Sixth, Anderson argues that
Rule 4-3(h)
The record has been reviewed for prejudicial error pursuant to Ark. Sup. Ct. R. 4-3(h), Ark. R. App. P. - Crim. 10(b), and
Affirmed.
CORBIN and IMBER, JJ., dissent.
ANNABELLE CLINTON IMBER, Justice, dissenting. In order to affirm the circuit court, the majority misconstrues Davlin v. State, 313 Ark. 218, 853 S.W.2d 882 (1993), and effectively overrules the Davlin decision sub silentio. Two fundamental principles were pivotal in Davlin: (1) the State‘s inability to rebut the presumption of prejudice when there is no record of the communications with the jury after it retires for deliberation, and (2) the defendant‘s constitutional right to be present during the representation of evidence, which extends beyond the procedural rights promulgated by the Arkansas General Assembly in
When a jury retires to deliberate, “the jury may take with them all papers which have been” admitted into evidence.
After the jury retires for deliberation, if there is a disagreement between them as to any part of the evidence or if they have a desire to be informed on a point of law, they must require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of or after notice to the counsel of the parties.
The facts in the Davlin case are strikingly similar to those presented in the instant case. A videotaped statement was played to the jury during the trial and again during jury deliberations. Davlin v. State, supra. Although
Due to the circuit court‘s failure to strictly comply with the requirements of
The Davlin court also held that the errors can go beyond the procedural requirements of
In the present case, the majority fails to address, much less acknowledge, the core holding in Davlin — the “representation of evidence” is a substantial step in the proceedings that mandates the presence of the defendant. Instead, the majority focuses on whether the tape has been admitted into evidence and conflates the admission of evidence with the representation of evidence.1 The Davlin court clearly concluded that the replaying of a videotaped statement, which had already been admitted into evidence, was the representation of evidence to the jury.
The fundamental errors that mandated reversal in Davlin are also present in this case. First, the circuit court allowed the jury to take the audio tapes and a tape recorder into the jury room where the jury was deliberating, thereby making it possible for them to replay the taped statements in the jury room. As this court stated in Davlin v. State, supra, the replaying of taped statements amounts to “the representation of evidence.” The representation of evidence in the jury room clearly violated
More importantly, the representation of evidence violated Anderson‘s constitutional right to be present during a substantial step in his case. In focusing exclusively on whether the tapes were admitted into evidence, the majority completely ignores our holding in Davlin that it is the circuit court‘s duty to bring the jury into the courtroom for the representation of evidence in the presence of the defendant. Once again, “had the jury returned to the courtroom, there would most likely have been a record of what occurred and the trial court would most likely have been reminded
As to the majority‘s valiant attempt to put some distance between Davlin and the present case, the majority opinion offers distinctions without a difference. For example, the majority suggests that the replaying of the audio tapes did not constitute a substantial step in the criminal proceedings because “there is nothing in the record to show that the jury would have been exposed to anything other than what was already played at trial.” However, this reasoning runs counter to the circuit court‘s judgment when it directed the jury to convene in open court to hear the testimony of Anderson‘s brother, Maurice, replayed in the presence of Anderson and counsel for both sides. The jury had already heard that witness‘s testimony once, so there was nothing “the jury would have been exposed to” other than what had already been heard during the trial. Thus, under the majority‘s rationale, the representation of Maurice‘s testimony would not have been a substantial step in Anderson‘s case because the jury was not being exposed to anything new. Yet, the circuit court and the State have acknowledged that the replaying of Maurice‘s testimony amounted to a substantial step requiring Anderson‘s presence. Indeed, during oral argument, the State reiterated that “if the jury needs to rehear evidence, that is critical, just as it is in the courtroom.” Thus, just as “the rereading of instructions to the jury constitutes a substantial step in the defendant‘s case,” so does the rehearing or representation of evidence constitute a substantial step in a defendant‘s case. Davlin v. State, 313 Ark. at 222, 853 S.W.2d at 885 (emphasis added).
In short, the only appreciable difference between the replaying of Maurice‘s testimony, and giving the jury an opportunity to replay the audio tapes of Anderson‘s confession in the jury room, is the person who is doing the talking. That distinction rests on the majority‘s assertion that when the defendant‘s testimony is being replayed, it is not a substantial step in the proceedings. Such an assertion is without merit as the origin of the testimony that is being represented is irrelevant when determining whether a substantial step is being taken in the case. In fact, under our case law and
Finally, it is well settled that our case law interpreting a statute becomes a part of that statute. See, e.g., Estate of Hull v. Union Pacific R.R. Co., 355 Ark. 547, 141 S.W.2d 356 (2004); Morris v. McLemore, 313 Ark. 53, 852 S.W.2d 135 (1993). Today‘s decision effectively changes what the law has been for thirteen years under Davlin v. State, supra, and does so without any reference to the doctrine of stare decisis and the threshold inquiry that must precede a decision to overturn precedent: “[P]recedent governs until it gives a result patently wrong, so manifestly unjust, that a break becomes unavoidable.” Zinger v. Terrell, 336 Ark. 423, 430, 985 S.W.2d 737, 741 (1999); see McGehee v. State, 334 Ark. 543, 975 S.W.2d 834 (1989) (citing Parish v. Pitts, 244 Ark. 1239, 429 S.W.2d 45 (1968)). We also said in Sanders v. County of Sebastian, 324 Ark. 433, 922 S.W.2d 334 (1996):
While we do have the power to overrule a previous decision, it is necessary, as a matter of public policy, to uphold prior decisions unless a great injury or injustice would result. The United States Supreme Court has recognized that adherence to precedent promotes stability, predictability, and respect for judicial authority. (Citations omitted.)
Id. at 435-36, 922 S.W.2d at 335. A change in the law is particularly regrettable when it affects a person who is appealing his death sentence.
For the above stated reasons, I must respectfully dissent.
CORBIN, J., joins this dissent.