Aрpellant Andrew Raymond Engram appeals ce. judgment of conviction and sentence of death for the June 5, 1997, capital murder and rape of Laura White, a security guard working at Sears in North Little Rock on the date of the offense. Appellant’s execution date was set for June 5, 1999, by the trial court. That date was stayed by order of this court on May 27, 1999, pending appeal.
Appellant filed a timely motion for new trial, which was denied by the trial court. Following the denial of the motion for new trial, appellant filed a notice of appeal of his conviction and sentence. Appellant raises the following six points on appeal:
1) The evidence was insufficient to sustain the verdict;
2) The court denied appellant’s constitutional right to confrontation by refusing to allow him to cross-examine the medical examiner about previous disciplinary action;
3) The court erred in overruling appellant’s objection to a police officer’s testimony that he did nоt believe appellant was truthful;
4) The overlap between the capital-murder and first-degree murder statutes created an unconstitutional risk that the death penalty was imposed in an arbitrary and capricious manner;
5) The trial court erred in submitting as three separate aggravating circumstances under Ark. Code Ann. § 5-4-604(3) (Repl. 1997) appellant’s three prior convictions for violent offenses;
6) The trial court erred in admitting victim-impact evidence because such evidence is irrelevant under Arkansas sentencing procedures to the considerations for imposition of the death penalty.
We are not persuaded that any of these issues has merit, and we affirm.
I. Sufficiency of the Evidence
The appellant challenges the adequacy of the DNA-identity evidence introduced against him at trial. He contends that DNA evidence alone does not constitute sufficient evidence to support his conviction. At trial, the State’s DNA expert testified that the probability that the semen recovered from the victim belonged to a person other than the appellant was one in 600 trillion. The State contends that the appellant failed to preserve this argument on appeal, as he did not make a specific objection to the sufficiency of the DNA evidence below, but rather made a general objection to the sufficiency of the evidence in that he felt the State had failed to “identify” him as Ms. White’s killer.
We have held that in order to preserve a challenge to the sufficiency of the evidence, a defendant must make below the specific challenge he seeks to make on appeal. E.g., Conner v. State,
As a general rule, where it is not apparent without further research that the argument is well-taken, we do not consider such arguments on appeal. Matthews v. State,
When we review a challenge to the sufficiency of the evidence, we will affirm the conviction if there is substantial evidence to support it, when viewed in the fight most favorable to the State. See Sublett v. State, supra; Freeman v. State,
The appellant has complained that the DNA evidence was insufficient, alone, to prove his identity. Appellant contends in support of his argument that the DNA laboratory was not certified and that this lack of certification significantly weakened the credibility of the results. Such a complaint, which actually has little to do with the sufficiency of the evidence and more to do with the weight of said evidence, is actually a dispute over credibility. In regard to questions of credibility, on appeal, this court views the evidence in the light most favorable to the State, recognizing that it is the jury’s province to resolve credibility disputes. See, e.g., Wilson,
Next, appellant wrongly asserts that the DNA evidence was the sole proof of his identity as the perpetrator. His assertion seems to ignore two additional pieces of evidence introduced at trial that at least contribute to proof of his identity. The first is the stаte trooper’s eyewitness encounter with the appellant at the crime scene on the very night of the crimes; and the second is the appellant’s implausible explanation for being there, given that his time card from his job at Luby’s proved that he did not work that evening. Although circumstantial proof, both are evidence of identity and, in turn, guilt. See, e.g., Windsor v. State,
This court has, since Moore v. State,
Finally, in an attempt to prove that the evidence was insufficient to support his convictions, the appellant points to the absence of certain evidence such as fingerprint evidence, and to the inconclusiveness of other evidence linking him to the crimes. In so doing, he actually demonstrates conflicts in the proof for the jury to resolve — that is, to cоnsider and reject or accept. See, e.g., Williams v. State,
Based on the above, viewing the evidence in a light most favorable to the State, we hold that substantial evidence exists to support the appellant’s rape and capital-murder convictions.
II. Cross-Examination Regarding Previous Disciplinary Action against the Medical Examiner
We have held that a circuit court has wide latitude to impose reasonable limits on cross-examination based upоn concerns about confusion of issues or interrogation that is only marginally relevant. See Gordon v. State,
In this case, prior to trial, the trial court ruled that the appellant could not cross-examine the medical examiner, Dr. Sturner, concerning an allegation of supervisory misconduct in a previous position he held in another state. The appellant apparently sought to discredit the State’s DNA evidence by suggesting that the samples taken from the victim for DNA testing were in some way wrongly collected, at least in part, due to the previous allegation of misconduct against Dr. Sturner for allegedly failing to adequately supervise his agents during certain forensic autopsies.
The appellant does not dispute that the swabs which matched his DNA were taken from the victim, nor does he dispute that they were taken in a way that caused them to yield a false match to him. In other words, while Dr. Sturner’s presence at, and supervision of, the swab coEection in this case might have some relevancy, the appeEant does not explain how it would have aided in casting any doubt upon the validity of the DNA evidence. Further, he faüs to explain how his proposed cross-examination of Dr. Sturner about his supervision in other cases in another state would have done so. In the absence of a chain-of-custody argument, which the appeEant has not made, it is impossible to discern what fact of consequence would have been made mоre or less probable by an aEegation of previous supervisory misconduct on Dr. Sturner’s part.
Moreover, appeEant was not prevented by the trial court from conducting any cross-examination of Dr. Sturner. In fact, he cross-examined both Dr. Sturner and the technician who coEected the swabs about the circumstances of the swab coEection and the former’s supervision of the latter. Yet, even having done so, he stiE fails to explain its relevancy for сasting doubt upon the DNA evidence.
In short, appeEant has failed to demonstrate any prejudice to his confrontation rights by his preclusion from questioning Dr. Sturner about previous aEegations of supervisory misconduct in another state. We hold, therefore, that the trial court did not abuse its discretion in this regard.
III. Police Officer’s Testimony Regarding Truthfulness of Appellant
At trial, State Trooper Mike Dawson testified that on the night in question, he arrived at the Sears parking lot around midnight to find thе appeEant walking near the tent where the victim’s body was later found. Because of the late hour, Trooper Dawson sought to determine appeEant’s reason for being there. AppeEant told Dawson that he had just gotten off work at Luby’s and was waiting for a ride. Dawson testified that he knew the cafeteria closed at 8:00 p.m. Fie added that whEe he assumed Luby’s employees might have to work later than eight o’clock, he “didn’t feel like [Engram] was being truthful.” Counsel for apрeEant immediately objected to Dawson’s observation about appellant’s truthfulness and moved for a mistrial, arguing that such testimony was improper. The prosecutor insisted that said comment was unsolicited and that, at any rate, it could be admitted as a present sense impression. The trial court overruled appellant’s objection and denied his motion for a mistrial. Appellant contends that this ruling was in error.
We have held that a trial court has wide latitude in its discretion to grant or deny a mistrial and will not be reversed absent an abuse of that discretion. See, e.g., Ashley v. State,
First, the State was able to demonstrate through other evidence, appellant’s timecard from his employer (Luby’s), that thе appellant in fact was lying when he told Trooper Dawson that he had just gotten off work at Luby’s. The timecard revealed that appellant had not worked at all on the evening in question. Under these circumstances, it was not error to deny the appellant a mistrial for the trooper’s unsolicited remark about the appellant’s level of truthfulness. See Ashley,
The appellant has failed to demonstrate any prejudice suffered as a result of Trooper Dawson’s unsolicitеd remark. The appellant does contend that the jury, during deliberation, asked for a transcript of the trooper’s testimony, and that this fact, in and of itself, proves that the jury was placing critical importance on his testimony. However, when researching the record, it was discovered that the jury had contemporaneously asked for a transcript of Dr. Sturner’s testimony. Therefore, the appellant’s argument that the jury was placing critical importance on thе testimony of one witness, Trooper Dawson, loses any persuasive value it may have otherwise had. We hold that there was no abuse of discretion on this point.
IV Overlap between Capital-Murder and First-Degree Murder Statutes
Appellant contends that the overlap between the capital-murder and first-degree murder statutes creates an unconstitutional risk that the death penalty was imposed in an arbitrary and capricious manner. The appellant сoncedes that this court has resolved this issue unfavorably to his position in numerous cases. We have most recently done so in Carmichael v. State,
The appellant suggests that this court has not clearly addressed the overlap question, citing Ruiz v. State,
[OJur statutory scheme is not flawed as were those of Alabama and Louisiana. Under Alabama law the jury could not consider lesser included offenses in capital crimes and was limited to either an acquittal or a conviction, in which case death was mandatory, and, hence the jury was deprived of the “third option” of a lesser punishment, which the United States Supreme Court held to be unconstitutional. In Roberts, Louisiana’s statutory scheme was found to be deficient. The jury in Louisiana was always instructed as to lesser included offenses (even where the evidence failed to support such a finding), the error of Louisiana’s procedure being that if the jury found both elements of first degree murder, i.e., that the accused had a specific intent to kill while engaged in a felony (in this case robbery) the death penalty was mandatory. In contrast, our scheme binds the jury in no such fashion, as it is free to impose life without parole in preference to death, notwithstanding a finding of guilt on capital felony murder charges. Moreover, if the evidence is such that the jury is instructed on lesser included offenses, it may lessen the punishment accordingly as its further option.
Ruiz,
Finally, the appellant’s argument is predicated on a false presumption — that a jury is making (or must make) a choice between life and death at the guilt phase — which is, as evidenced by the Ruiz case, not true under the Arkansas capital-punishment scheme. This presumption appears to be founded on the appellant’s misinterpretation of the underlying rationale of Beck. The point of Beck, as we have noted previously, is to ensure that a jury is not given a choice only between a conviction for which the defendant must receive the death penalty or an acquittal. See Kennedy v. State,
The Arkansas capital-punishment scheme avoids such an arbitrary and capricious choice, as the Ruiz court noted, because the jury may ultimately impose a life sentence in preference to death at the penalty phase, even if it finds a defendant guilty of the capital crime. Ruiz,
Concisely stated, the fact that the substantive homicide statutes may reflect some overlap in charging at the guilt phase of capital trials simply does not implicate the principles of Beck; we have already addressed and settled this issue in numerous previous cases.
V. Prior Convictions as Aggravating Circumstances
The State proved that the appellant had committed three prior felonies which involved the use or threat of violence to another person; and, the jury was charged by the trial court that it could find an aggravating circumstance for each of those prior felonies, which it did. The appellant now disputes that the jury could be so instructed. Although he concedes that he did not raise this issue below, he alleges that he may do so for the first time on appeal because it concerns a matter essential to the jury’s death-penalty deliberations. Thе State contends that the jury’s death-penalty deliberations were correct and that they could not have been affected by any alleged mislabeling of the appellant’s three prior violent felonies as three aggravating circumstances rather than as three felonies supporting one aggravating circumstance. We agree.
Clearly, the jury did not consider an invalid aggravator or fail to correctly complete the forms it was given. Moreover, the appellant does not even dispute that the jury could consider all of his prior violent felonies under Ark. Code Ann. § 5-4-604(3). Rather, he only denies that they could each be described in the instructions as a separate aggravating circumstance. He does not explain why they could not be so described, except to say it is “improper and unprecedented. ”
While appellant suggests that previous cases involving defendants with multiple prior violent felonies invоlved single aggravating-circumstance submissions, other cases suggest the opposite. See, e.g., Duncan v. State,
The appellant’s argument amounts to a distinction without a difference, in that either way it is described — whether it be as one aggravating factor or three separate factors — the jury is still able to consider the existence of three prior felony convictions. This faсt is undisputed. As we have previously explained in concluding that a prior violent felony can have occurred after the capital crime, the purpose of the aggravator is to advise the jury of a defendant’s propensity to violence — that is, to strike again. See Sanders v. State,
The fact is that the appellant had “struck” on three previous occasions, and his jury was instructed consistently with this purpose — that each violent felony was an aggravating сircumstance of his capital crime. The plain purpose of the aggravator itself sufficiently answers the appellant’s hyperbolic concern that the State might “pad” the number of aggravating circumstances. Again, it amounts to a distinction without a difference, as the jury could obviously, and indisputably, consider each of the prior violent felonies, either way; therefore, the appellant is unable to demonstrate that the separation of the priors as aggravators in any way prejudiced him. As such, we hold that it was not error for the trial court to allow each prior felony conviction to be labeled as a separate aggravating circumstance.
VI. Admission of Victim-Impact Evidence
As in point IV, above, the appellant again concedes that this court has resolved this issue unfavorably to his position in previous cases, as well. Notwithstanding, he contends that this court should declare victim-impact evidence irrelevant under the Arkansаs capital-sentencing scheme, relying upon the views of the dissenting justices in Noel v. State,
First, appellant’s argument fails to meet the high burden required to show that the adherence to the principle of stare decisis in this matter is manifestly unjust or patendy wrong, see, e.g., McGhee v. State,
Next, the General Assembly has unequivocally declared that victim-impact evidence is relevant to a jury’s determination of the appropriateness of the death penalty. See Ark. Code Ann. § 5-4-602(4) (Repl. 1997); Noel,
Only through the legislature could the consideration by capital juries of victim-impact evidence be eliminated from the capital-sentencing scheme. This court has rejected an invitation to do so in Lee, supra, where we explained that, due to the virtually unlimited relevancy of mitigating evidence, “the State could legitimately conclude that the impact of the murder on the victim’s family is relevant to the jury’s decision as to whether to recommend that the death sentence be imposed.” Lee,
The victim-impact evidence admitted in this case was precisely the type discussed in Payne v. Tennesseе,
In short, the admission of victim-impact evidence in this case was consistent with federal and state law and was properly allowed.
VII. Rule 4-3 (h) Compliance
In accordance with Ark. Sup. Ct. R. 4-3 (h) (1998), the record has been reviewed for adverse rulings objected to by the appellant but not argued on appeal, and no reversible errors were found.
Affirmed.