Lead Opinion
The evidence implicating appellant in the crime included the discovery of an AR-15 rifle, .223 rounds, spent shell casings, and spare magazines at his home; security video footage showing appellant wearing camouflage at U-Pull-It on that Friday night at the time of the shootings and showing that he had his AR-15 with him; his statements to law enforcement denying being present on the night of the shootings; and the fact that, on Saturday morning before U-Pull-It opened, appellant crushed the vehicle with the bodies inside. The projectile recovered by the medical examiner could not be conclusively linked to appellant's rifle, but there was testimony that the shell casing recovered at the scene had been cycled through that rifle. In addition, Brock's cell phone was found in the vehicle with the bodies, but the battery was not located. There was testimony that the phone ceased all activity,
II. Points on Appeal
A. Zinger Evidence
Appellant argues that the circuit court's rulings excluding certain evidence were a misapplication of the doctrine of Zinger v. State ,
This court reviews the admission of evidence by the circuit court at trial using an abuse-of-discretion standard. Ellis v. State ,
In Zinger , supra , the appellants had been convicted of first-degree murder. At trial, they had attempted to introduce testimony regarding a similar crime that had occurred approximately thirty miles away, in Louisiana, for the purpose of convincing the jury that the person who committed that crime might also have committed the murder of which they had been accused. The circuit court refused to allow the evidence. On appeal, this court wrote:
To address this issue, we must consider under what circumstances evidence incriminating others is relevant to prove a defendant did not commit the crime charged....
Addressing this precise issue, the Supreme Court of North Carolina stated:
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. Evidencewhich does no more than create an inference or conjecture as to another's guilt is inadmissible.
State v. Wilson,, 322 N.C. 117 (1988). The Supreme Court of California has recognized that a defendant has the right to present evidence of third party culpability but stated: 367 S.E.2d 589
[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.
People v. Kaurish ,, 52 Cal. 3d 648 , 276 Cal. Rptr. 788 (1990). 802 P.2d 278
Although there are some similarities between thе crimes committed in Louisiana and Arkansas, there was no evidence presented connecting the Louisiana suspect to the Holley murder. The Trial Court was not even given the name of the Louisiana suspect or whether he or she had any connection to Holley. There was neither direct nor circumstantial evidence connecting the Louisiana perpetrator to thе Arkansas crime, other than a few similarities found in the two crime scenes, and we cannot conclude the Trial Court abused his discretion in refusing to allow the evidence to be admitted.
Zinger ,
Here, appellant argues that the circuit court erred in excluding evidence corroborating the defense that the killings were perpetrated by someone other than him and otherwise exculpating him on the charge of capital murder, i.e., showing that he was justified in being аrmed at the salvage yard for reasons other than a premeditated killing.
First, appellant argues that the circuit court erred in excluding photographs of footprints at the crime scene. After lead investigator Erick Riggs of the Pope County Sheriff's Department testified on cross-examination that there were various footprints at the scene, the State objected when the defense attempted to introduce photographs of the footprints. The State's position was that Zinger prevented admission of the pictures because the footprints could not be related to a particular person; appellant's position was that they were admissible to show a lack of investigation in that officers believed that the footprints were important enough to photograph and measure, but they were never investigated further. The circuit court excluded the photographs. Here, the footprints were not sufficiently linked to the murders to be relevant, and in any event, there was testimony regarding the existence of the footprints. Under these particular facts, we
The оther evidence on which appellant argues error concerns the following proffered but excluded witness testimony: employees McCubbin and Ibanez would have testified regarding the reasons for believing the victims would be coming to the property to steal parts and for believing that they were white supremacists; Investigator Keith Lunsford would have testified that he learned through the investigation that someone named J.J. was to have been with Brock and Dewitt at the time of their disappearance, that there was speculation that Brock Lee, the father of Rowan's child and a white supremacist, was involved, and a Randall Gordon stated that he was aware of a disturbance at a church in Casa in which a woman stated that the man with whom she had been arguing had killed two people; Erick Riggs would have discussed connections between J.J. Boen, the victims, and Brock Lee and white-supremacy groups; Officer John Reinhold would have testified that Dewitt's mother expressed concern that Brock Lee might have been involved; Doug Lewis would have testified that he was present at the church altercation in which it was stated that a man had just killed two men; Investigator Russell Hill would hаve testified that his interviews had disclosed the possibility that J.J. Boen, Brock Lee, and T.J. Ferguson might have been involved; and Zachary Berry would have testified that he knew Beau Dewitt and people in the Scranton area thought he was a violent hoodlum. Additionally, in the testimony of ATF agent Timothy Boles, the defense was precluded from asking him about the National Aryan Empire and the "To The Dirt" investigation. Apрellant characterizes this as "evidence about the white supremacist associations of the deceased and evidence about specific persons with whom one or both of the deceased essentially were at war and thus had a motive to harm them."
Appellant argues that the circuit court misapplied Zinger in several ways: by essentially holding that Zinger supersedes other grounds for the admissibility of evidence; by agreeing with the prosecution that the evidence was inаdmissible unless appellant testified; by suggesting through discussion of Schnarr v. State ,
Appellant also argues that evidence of his knowledge of potentially violent white supremacists breaking into his property should have been admitted to explain why he was armed, and the Zinger doctrine is not implicated. The State responds that the testimony offered by appellant-had it been admitted-would have been more prejudicial than probative because the proffered testimony did not establish that either the appellant or the witnesses:
Finally, appellant argues that this court's holding in Zinger , and the circuit court's application of it, deprived him of his right to present a defense. However, the constitution permits the exclusion of evidence that is repetitive, only marginally relevant, or poses an undue risk of harassment, prejudice, or confusion of the issues. E.g. , Holmes v. South Carolina ,
We hold that the circuit court did not abuse its discretion in excluding the evidence proffered by the defense.
B. Telescopic Sight
For his second point on appeal, appellant argues that the circuit court abused its discretion by permitting testimony regarding what could be seen using the telescopic sight mounted on appellant's rifle. At trial, appellant objected to the testimony of State witness Timothy Boles, a special agent with the Bureau of Alcohol, Tobacco, Firearms, and Explosives. Appellant objected to Agent Boles's testimony under Arkansas Rules of Evidence 401 and 403, arguing that it goes outside what the rules allow regarding demonstrative evidence and that the conditions under which Agent Boles used the scope were different from the conditions on the night of September 16-17, 2016, because it had not been raining, and the lighting would be different in different areas. The circuit court overruled the objection, stating the it would be helpful for the jury to understand how the scope operates and that the probative value outweighed any prejudicial effect. Agent Boles testified that on August 21, 2017, he conducted a low-level light evaluation of the scope mounted to the rifle found at appellant's house. At about 10:50 p.m., he took the rifle just outside U-Pull-It Auto Salvage and positioned himself so that he was looking down a row of cars. Using a range finder to accurately measure distances, he assessed the capabilities of the scope by comparing what he could see with his unaided eye to what he could see through the scoрe at the same distance. He determined that he could see better with the scope than without it. On cross-examination, Agent Boles testified that the night was clear, and he could see the stars. He further testified that he was unable to say whether the results of his test would be different if he had been facing another direction, such as away from the waste-water treatment plant.
On appeal, аppellant argues that the circuit court abused its discretion because Agent Boles's testimony should have been excluded under Rule 403.
III. Rule 4-3(i) Review
In compliance with Arkansas Supreme Court Rule 4-3(i), the reсord has been examined for all objections, motions, and requests made by either party that were decided adversely to appellant, and no prejudicial error has been found.
Affirmed.
Special Justice J. Cliff McKinney joins in this opinion.
Wood and Womack, JJ., concur in part and dissent in part.
Hart, J., dissents.
Kemp, C.J., not participating.
Notes
Ark. R. Evid. 403 provides:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, wastе of time, or needless presentation of cumulative evidence.
Concurrence in Part
Zinger v. State established the standard for admission of evidence of a crime committed by someone other than the defendant that is similar to the crime for which the defendant stands trial.
Here, Barefield attempted to introduce patterns of headlights and flashlights at the salvage yard after he left on the night of the murders and photographs of footprints law enforcement had taken at the scene. Defense counsel also attempted to cross-examine several of the State's witnesses, including Karl Lunsford, Officer Reinold, and Investigator Hill, about their investigations, or lack of, into other individuals with a possible motive to harm the victims. Through this evidence and testimony, Barefield sought to challenge the thoroughness of the police investigation into other suspects. He was not comparing these murders to another murder clearly committed by someone else. Therefore, it was improper to exclude this evidence and testimony under Zinger . For this reason, I concur in part and dissent in part.
Womack, J., joins.
Josephine Linker Hart, Justice, dissenting.
The primary issue in this case is the systematic deprivation of Mr. Barefield's constitutional right to put on a defense. The circuit court's evidentiary rulings were merely the means to accomplish this end.
The State convicted Mr. Barefield with only circumstantial evidence. It is axiomatic that circumstantial evidence may provide the basis to support a conviction, but it must be consistent with the defendant's guilt and inconsistent with any other reasonable conclusion E.g. , Edmond v. State ,
The majority cites the relevаnt cases but fails to apply the law to the facts of this case. Thus, while it is true, as the majority notes, that "the Constitution permits the exclusion of evidence that is repetitive, only marginally relevant, or poses an undue risk of harassment, prejudice, or confusion of the issues," none of these concerns factor into the evidence that Mr. Barefield proffered. The majority proves this point by utterly failing to state how the proffered evidence fit any of these categories. In fact, it was not repetitive -even the footprint photos were independently relevant; it was not marginally relevant -the proffered evidence was the basis of Mr. Barefield's defense; and the proffered evidence did not pose any risk, much less an undue risk, of harassment, prejudice, or confusion of the issues. Likewise, the majority is correct when it states that when "properly applied ," Zinger prohibits evidence of third-party guilt that is "irrelevant or which is relevant but substantially outweighed by the danger of unfair prejudice or confusion because it is not sufficiently linked to the crime in question." However, in the case before us, the proffered evidence was linked to the crime in question. Mr. Barefield identified a particular suspect, a motive for committing the murders, and evidеnce tending to show the presence of individuals other than Mr. Barefield at and around the crime scene near the time of the murders.
Certainly the "link" in the case before us is at least as substantial as the "link" in Harmon v. State ,
Our system of justice depends on adversary proceedings in which both sides must be allowed to present proof, subject only to the limitations set by our rules of evidence. When one side is prevented from fully presenting its case, we cannot have confidence in the outcome of the trial. I would reverse and remand this case for a new trial.
I respectfully dissent.