Appellant Ralph Armstrong appeals from his two convictions for capital murder and his sentence to fife imprisonment without parole. He asserts six points on appeal. We hold that none of the six points raised has merit, and we affirm the judgment of conviction.
Appellant does not challenge the sufficiency of the evidence. Accordingly, we will give only a brief recitation of the facts. See, e.g., Garcia v. State,
Pulaski County deputy sheriffs investigated the deaths and discovered that on the previous evening, Dashunda Armstrong had a hair appointment with her sister until around 1:00 a.m. According to her sister, the victim planned to meet Armstrong after she left the hair salon. When questioned by the investigators regarding his wife, Armstrong responded that she never arrived at his house as they had planned. Further investigation of Armstrong revealed that he had made several cellular telephone calls to a former girlfriend, Kim Waller, on the night of his wife’s death. The calls made by Armstrong that evening were made through a cellular tower located near where Dashunda Armstrong’s van was found.
Ms. Waller told police that on the evening in question, Armstrong called her sometime after midnight to pick him up not where her sister lived, but the “opposite way . . . down McDonald Road.” While she was driving to the area, Armstrong told Ms. Waller that he set “[his wife’s] van on fire.” When she arrived in the area, Ms. Waller saw the burning van and returned home. Her brother-in-law, Ronnie
The State waived the death penalty, and Armstrong was tried on two counts of capital murder, one for the death of Dashunda Armstrong, and one for the death of the twenty-week-old fetus. He was convicted and sentenced as already set forth in this opinion.
I. Dual Representation
Armstrong first contends that the Model Rules of Professional Conduct prohibited prosecutors from talking to Adrian Nimmer because she was represented by the same attorney as he was. Armstrong claims that the prosecutors had actual knowledge of this and on receiving that notice had an affirmative duty to terminate all communication with her regarding the Armstrong investigation until her counsel informed them that he no longer represented her. Armstrong asserts that it is of no moment that Ms. Nimmer told prosecutors that she was no longer represented by the same counsel because, according to Armstrong, Rule 4.2 of the Model Rules required the prosecutors to confirm that with the attorney, rather than taking the client’s word for it. He further maintains that a referral of the prosecutors to the Supreme Court Committee on Professional Conduct is inadequate to deter such conduct and that the better deterrent would be to exclude the testimony of the witness who was the subject of the Rule 4.2 violation.
A review of the record reveals that Armstrong moved the circuit court to exclude Ms. Nimmer’s testimony and asserted that the prosecutors knew she was represented by the same counsel as Armstrong, but talked with her nevertheless. During the discussion before the circuit court on the motion, which the circuit court ultimately denied, the prosecutors represented to the circuit court that no statement was taken from Ms. Nimmer while she was represented by counsel for Armstrong. However, upon her subsequent initiation of contact with prosecutors, she was interviewed. Ms. Nimmer then later wrote a letter to Mr. R. S. McCullough, her former counsel and Armstrong’s counsel, stating that she considered his representation terminated when she spoke with the prosecutors.
Ms. Nimmer, while not charged in the murders, was in the midst of the investigation between the State and Armstrong after police investigators discovered that she purchased information regarding how to change one’s identity for Armstrong. Moreover, the prosecutors knew that she had been represented by the same counsel. But even if this court were to conclude that there was a violation of Model Rule of Professional Conduct 4.2, which we do not, Armstrong has adduced no authority which would have prohibited the prosecutors from using Ms. Nimmer’s testimony at trial as a result of that violation. This court does not consider arguments that are unsupported by convincing argument or sufficient citation to legal authority. See, e.g., McGahey v. State,
Furthermore, the Model Rules themselves provide that the “[fjailure to comply with an obligation or prohibition imposed by a Rule is a basis for invoking the disciplinary process.” Scope of the Model Rules of Professional Conduct (2004). Thus, were there a violation of Rule 4.2 by the prosecutors in the matter before us, it appears that the appropriate remedy would be disciplinary action and not the exclusion of the statement at issue from the trial. We cannot say that the circuit court erred in admitting Ms. Nimmer’s testimony.
II. Batson
Armstrong next claims that the circuit court erroneously permitted the prosecutors to use their first peremptory challenge to strike Theodore Simpkins, a black male, and their second to strike Delois Hines, a black female.
This court has outlined its three-step procedure for making challenges under Batson v. Kentucky,
First, the strike’s opponent must present facts to raise an inference of purposeful discrimination; that is, the opponent must present a prima facie case of racial discrimination. Second, once the strike’s opponent has made a prima facie case, the burden shifts to the proponent of the strike to present a race-neutral explanation for the strike. If a race-neutral explanation is given, the inquiry proceeds to the third step, wherein the trial court must decide whether the strike’s opponent has proven purposeful discrimination. Here, the strike’s opponent must persuade the trial court that the expressed motive of the striking party is not genuine but, rather, is the product of discriminatory intent.
Hinkston v. State,
In reviewing a Batson challenge, this court has held that it will reverse a circuit court’s ruling on a Batson challenge only when its findings are clearly against the preponderance of the evidence. See Stenhouse v. State,
a. Mr. Simpkins
During voir dire, Mr. Simpkins stated that he attended school with Armstrong.
Even assuming that Armstrong made a prima facie case to raise an inference of purposeful discrimination, the prosecution clearly provided a race-neutral reason for the strike, which was that Mr. Simpkins knew Armstrong and had previously attended school with him. After the prosecution explained its reason for the strike, the circuit court denied Armstrong’s Batson challenge. Armstrong’s counsel failed to pursue the matter further. We affirm the circuit court on this point.
b. Ms. Hines
Ms. Hines remarked during voir dire that she was due to have surgery on Thursday of that week and that she would have to call to determine whether it could be rescheduled. She further stated that while it would not be an inconvenience for her to reschedule, she did not know about the doctor. She then questioned the prosecutor about why certain facts, such as the color of a car, might be introduced at trial if it was not important, as the prosecutor had contended. The prosecution used a peremptory challenge to strike her, and Armstrong challenged the strike, arguing that she was a black female who gave no response that would indicate that she was unsuitable for jury selection despite the presence of other black females on the jury. 3 The prosecution responded that other than the fact that she had surgery scheduled for Thursday, which he did not want her to have to reschedule, she and he had gone back and forth about the unimportant details in a case. The prosecutor emphasized to the court that sometimes in criminal cases, not every little detail matches up and that because she seemed to want everything “to mesh” exactly, she might not agree with the prosecution’s case. Armstrong countered that an opinion such as Ms. Hines’s could be used to determine credibility and that the little matters referenced by Ms. Hines were important. The circuit court denied the challenge. 4
We hold that the prosecution clearly provided a race-neutral reason for its strike of Ms. Hines. This court has observed that the State’s race-neutral explanation must be more than a mere denial of racial discrimination, but need not be persuasive or even plausible. See Stenhouse v. State, supra (citing Purkett v. Elem,
Under step three of the Batson procedure, the ultimate burden of persuasion that there is a purposeful discriminatory intent “rests with and never shifts from the party opposing the strikes.” Dickerson v. State,
III. Prejudicial Testimony
Armstrong next urges that despite a pretrial order prohibiting the mention of blood or a blood-like substance on a tissue found at the crime scene, Lieutenant Eric Holloway of the Pulaski County Sheriffs Office described the evidence during trial as including a tissue with a “reddish substance that was consistent with blood.” For this reason, Armstrong claims that the circuit court should have granted his motion for a mistrial. He contends that the prosecution was aware of the court’s order and had no excuse for violating it. He points out that the circuit court made a finding that the statement was prejudicial and asserts that the circuit court should have ordered a mistrial due to the brazenness of the violation. In the alternative, he maintains that the circuit court should have held the prosecutors and Lieutenant Holloway in contempt of court for violating the order.
A mistrial is an extreme and drastic remedy which will be resorted to only when there has been an error so prejudicial that justice cannot be served by continuing with the trial or when the fundamental fairness of the trial has been manifestly affected. See Moore v. State,
In the case at hand, the circuit court granted Armstrong’s supplemental motion in limine to prohibit references to blood where there was no laboratory confirmation of the blood. During Lieutenant Holloway’s testimony, Armstrong’s counsel approached the bench to confirm that he would not testify in contravention of the court’s order regarding any reference to blood.
The following colloquy next ensued between the prosecutor and Lieutenant Holloway:
Prosecutor: Okay. Go ahead. You said you located a black knit cap?
Lieutenant Holloway: Located a cap. It did not appear to be at — you know, there is some traffic that comes through that. I’m familiar with — that it has several people that travel that road throughout the day and night. But it did not appear to be run over. It was right in the middle of the road. It appeared to be fairly, freshly put there.So I decided to package it in a paper sack. Also, I continued on around the east side of the vehicle where I observed a cylindrical pipe that I identified as possibly being a smoking apparatus for crack cocaine. I collected that, and then as I went to the north side of the vehicle, I saw several pieces of what looked to be tissue paper that had a reddish substance that was consistent with blood, I wasn’t sure.
Defense counsel objected and the circuit court sustained the objection. Following the arguments of counsel on Armstrong’s motion for mistrial, the circuit court denied the motion but gave the following admonition to the jury:
Ladies and gentlemen, prior to the lunch break a witness testified that there was tissue and there was blood that was found on some tissue or a material that looked like blood. I’m advising you that you are to disregard that testimony. I conducted a pretrial hearing and at that hearing I made a determination that — that the substance — the material that was found on that was not blood. And there’s no evidence that suggests that there was blood. And therefore, I issued a ruling that that evidence was not supposed to be admitted at trial. The evidence, nevertheless, came out. I think it’s irrelevant, so I’m asking that you all disregard that testimony altogether.
In addition, the prosecutor addressed the fact that it was not blood on the tissue as part of the continuing direct examination:
Prosecutor: And based upon — along with the Court’s ruling here about it. As a matter of fact there was a report confirming that it was not in fact blood that was found on that. Is that correct?
Lieutenant Holloway: That’s correct.
Prosecutor: And you were aware of this report?
Lieutenant Holloway: Yes.
We agree with the circuit court that the statement was not so prejudicial that the fundamental fairness of the trial had been affected. Moreover, the circuit court’s admonition to the jury and the prosecutor’s subsequent clarification of the matter served to cure any residual prejudice that might have remained. Because the statement was not deliberately elicited by the prosecutor and because the subsequent admonition and clarifying testimony cured any potential prejudice stemming from the statement, the circuit court did not abuse its discretion in denying Armstrong’s mistrial motion.
With respect to the circuit court’s denial of Armstrong’s motion for contempt, we view this as a matter that lies within the circuit court’s discretion. Criminal contempt preserves the power of the court, vindicates its dignity, and punishes those who disobey its orders. See McCullough v. State,
IV Child-Support Arrearage
Armstrong next claims that while it was true that he was behind on his child-support payments, that fact hardly makes it more likely that he committed a double homicide. Hence, he contends that that
The admission or rejection of evidence under Arkansas Rule of Evidence 404(b) is left to the sound discretion of the circuit court and will not be disturbed absent a manifest abuse of discretion. See Swift v. State,
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Ark. R. Evid. 404(b) (2005).
Clearly, evidence of an acrimonious divorce and evidence that Armstrong owed the victim, his estranged wife, back child support could provide a motive for his wife’s killing. This court has held that when the purpose of evidence is to show motive, anything and everything that might have influenced the commission of the criminal act may, as a rule, be shown. See Morgan v. State,
V. Third-Party Death Threat
Armstrong also contends that the circuit court erroneously excluded evidence he wanted to present of controversies between Kim Waller and her sisters and the victim, including an audio tape which contained statements by the Waller sisters threatening to kill Dashunda Armstrong. He claims that the circuit court erroneously construed Zinger v. State,
In Zinger v. State, supra, this court considered under what circumstances evidence incriminating third parties was relevant to prove a defendant did not commit the crime charged. Quoting the Supreme Court of North Carolina with favor, this court observed:
A defendant may introduce evidence tending to show that someone other than the defendant committed the crime charged, but, such evidence is inadmissible unless it points directly to the guilt of the third party. Evidence which does no more than create an inference or conjecture as to another’s guilt is inadmissible.
[T]he rule does not require that any evidence, however remote, must be admitted to show a third party’s possible culpability . . . [E]vidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant’s guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.
Id. at 76,
While Armstrong possessed a tape which contained the voices of several Waller sisters threatening Mrs. Armstrong and evidence that Armstrong’s wife and several of the W aller sisters had harassed one another, he presented no direct or circumstantial evidence which connected any of the Waller sisters to his wife’s death. As the State points out, two of the Waller sisters, Karen and Yolanda, whom their sister Kim identified as being the voices on the tape sought to be admitted by Armstrong, were in Forrest City the night of Dashunda Armstrong’s murder, according to Karen’s and Kim’s testimony presented to the circuit court. In addition, despite Kim Waller’s presence in the area of the crime scene the night of the victim’s death, Armstrong failed to connect her presence with the possibility of her guilt, especially when she testified that she was only in the area because she received a cellular telephone call from Armstrong to come pick him up.
To be admissible, this court has held that there must be a sufficient connection between the evidence that a third party may have committed the crime and the possibility of another person’s guilt. See Echols v. State,
VI. Nonverbal Conduct
Armstrong claims next that the circuit court erroneously denied his motion for mistrial when the prosecutor stated, during closing argument, that he hoped the jury had watched Armstrong’s reaction to the photographs of his dead wife and dead fetus. He claims that the implication is clear that his “reaction,” or lack thereof, to the photographs of his wife and unborn child was not sufficiently indicative of his innocence. He asserts that the prosecutor’s argument put him in the position of having to explain to the jury that whatever look he had on his face had nothing to do with the prosecution’s case against him. He continues that he was prevented from doing so because the statement was made
The State answers that Armstrong failed to preserve this point for appeal, but we disagree. During the prosecutor’s rebuttal closing argument, the following colloquy took place:
Prosecutor: We’re making him out — and what he is and what he’s shown you is that he’s a cold dispassionate killer. When the photos went up, I hope you watched his reaction to the photos of his dead wife and dead fetus. I hope you took notice of that because it’s very important. You know, he talks about the ID —
Defense Counsel: That’s not in evidence, Judge. That has nothing to do with the case.
Prosecutor: Their observation —
Defense Counsel: There’s no testimony or anything about that at all.
Prosecutor: Their observations of him are their observations of him.
The Court: Okay. I’ll overrule.
In Leaks v. State,
We conclude that the prosecutor’s comment was not reversible error. The prosecutor merely directed the jury to recall Armstrong’s reaction to the photographs of his dead wife and fetus. This court has held that the prosecution is limited in its argument to the evidence in the record, logical inferences and deductions therefrom, and matters of which judicial notice can be taken. See Parker v. State,
With respect to comments regarding a defendant’s demeanor or appearance, the Ohio Supreme Court has held that a defendant’s face and body are physical evidence and that it is permissible for the prosecution to comment on the accused’s physical appearance. See State v. Lawson,
Where a prosecutor is alleged to have made an improper comment on a defendant’s failure to testify, this court reviews the arguments in a two-step process. See Jones v. State,
In the instant case, we cannot say that the prosecutor’s reference to Armstrong’s reaction was a direct or even a veiled reference to his failure to testify. Hence, we find no reversible error on this point and affirm the circuit court.
The record in this matter has been reviewed for other reversible error in accordance with Supreme Court Rule 4-3 (h), and none has been found.
Affirmed.
Notes
In the briefs on appeal, the victim is shown as Dashunda Armstrong. However, portions of the record reflect the spelling as Deshaundra Armstrong, DeShunda Armstrong, and DaShunda Armstrong. We will use the spelling in the briefs.
We note that Armstrong cites us to the comment to Rule 4.2 that the rule applies even though the represented person initiates or consents to the communication. That comment, though, is to Rule 4.2 of the Arkansas Rules of Professional Conduct that went into effect on May 1, 2005. See In Re: Arkansas Bar Ass’n,
It is unclear from the record whether one or more black females were currently seated on the jury.
The circuit court did not explicitly deny the challenge; however, it did excuse Ms. Hines.