ROBERT FRIAR v. STATE OF ARKANSAS
No. CR-15-825
SUPREME COURT OF ARKANSAS
June 9, 2016
2016 Ark. 245
APPEAL FROM THE JACKSON COUNTY CIRCUIT COURT [NO. CR-2013-75], HONORABLE HAROLD S. ERWIN, JUDGE. AFFIRMED.
Appellant Robert Friar appeals the sentencing order entered by the Jackson County Circuit Court convicting him of capital murder, two counts of attempted capital murder, and seven counts of committing a terroristic act. For these crimes, the circuit court sentenced Friar to life in prison without parole for capital murder1 and, as an habitual offender, to consecutive terms of imprisonment totaling 165 years for the remaining offenses. For reversal, Friar contends that the circuit court erred by denying his motion to suppress, in granting the State‘s motion in limine, and by declining his request to provide the jury with instructions on lesser-included offenses. We affirm on all issues.2
I. Factual Background
Our review of the record reveals that Delana Aguirre and her children lived in a duplex in the Crossroads area of Newport, Arkansas, with her sister and her mother, Leslie Curl. During the early morning hours of February 27, 2013, Friar fired seven shots from outside the home through the window of Aguirre‘s bedroom where she had retired for the evening with two of her children. Aguirre survived three gunshot wounds—one to her back, one to her buttocks, and another to her arm. Unfortunately, Aguirre‘s twenty-month-old daughter, Tacquari, perished after being struck by a single bullet. Aguirre‘s other child was unharmed.
According to the testimony, Friar and Aguirre had been dating for seven months, and the relationship had become volatile. Aguirre testified that Friar had physically abused her, saying that he had choked her, had struck her with a closed fist, and once had hit her with a belt buckle. She also testified that Friar had threatened her life and the lives of her children and her mother. On the evening of the shooting, Friar sent Aguirre an ominous text message saying, “YEA I WILL HAVE THE LAST SAY SO U N UR MOM TELL D KIDS U LOVE THEM.” At 2:32 a.m., mere seconds before the shots rang out, Friar placed a cellular phone call to Aguirre, wherein he said something that she could not understand, and then disconnected the call. Aguirre testified that she was sitting on her bed
The testimony also established that Friar was in close proximity to Aguirre‘s home at the time of the shooting. Friar lived with his mother near Garfield Street, which was at least a couple of miles from Aguirre‘s residence. However, that morning he had been riding in a vehicle with Bobbie Woodruff, who parked beside her aunt‘s house, which was near Aguirre‘s duplex. Bobbie testified that Friar got out of the vehicle to relieve himself; that he did not return to the vehicle; and that she picked him up a short while later around the corner from where she had parked. The evidence showed that Friar and Woodruff exchanged text messages and phone calls within minutes of the shooting and before they reconnected.
Officers arrested Friar that morning at 4:12 a.m. on Garfield Street and transported him to the Jackson County Sheriff‘s Office. During the booking process, officers seized Friar‘s clothing and his cell phone. At that time, Friar was heard to say, “Baby mama drama. It is what it is.” That morning, agents of the Arkansas State Police attempted to question Friar, but Friar refused to speak with them. However, later that morning, Friar gave a statement to an officer with the Newport Police Department, and the agents from the state police subsequently interviewed Friar twice that same day. In his three statements, Friar denied that he had been involved in the shooting.
II. Motion to Suppress
As his first point on appeal, Friar argues that the circuit court erred by denying his motion to suppress. His argument is multifaceted. Friar contends that there was no probable
A. Probable Cause
We first address the issue of probable cause for the arrest. The record of the suppression hearing reflects that Officer Chris McClellan of the Newport Police Department was the first officer to respond to the scene and that his superior, Lieutenant Allen Edwards, arrived moments later. When Edwards entered the residence, he instructed McClellan to secure the area outside the home. Edwards said that Curl was hysterical and that Aguirre was conscious and sitting in a pool of blood on the floor in the hallway. Edwards testified that he immediately began to clear the house to make sure that the perpetrator was not still present. With that purpose in mind, he asked Curl who shot Aguirre and the child. Curl replied that it was “Junior,” whom she identified as Friar. Edwards said that Curl also informed him that Friar had sent Aguirre a text message that night telling her and Aguirre to “kiss their babies” and that Friar had called Aguirre moments before the shots were fired. He testified that Curl also mentioned that Aguirre and Friar had recently broken off their relationship. Edwards explained,
I asked who did this. They told me. At that point I wasn‘t interrogating them trying to gather every detail that would - like our investigators would be doing. I was trying to make the scene safe. Provide aid. They said he did it. I relayed that information along to the other officers and - you know, I told Patrolman McClellan later on, you know, get one of the deputies. Go to the lower end of town. See if you can locate Robert Friar and take him into custody.
In his testimony, McClellan stated that Edwards sent him to provide security at the hospital where the victims had been taken. He said that he spoke with Aguirre, who told him that Friar had shot her and that Friar had purchased a gun from Bobbie Woodruff. McClellan stated that Aguirre implied that Friar was her ex-boyfriend. When McClellan was dispatched to take Friar into custody, he located Friar walking down Garland Street.
Detective Chuck Benish also testified at the hearing. When he arrived at the duplex, Aguirre and Tacquari had been taken to the hospital. Benish said that Edwards advised him that the shooter had been outside the residence because shell casings were located near the window that was riddled with bullet holes. Benish drove to the hospital and spoke with Aguirre. She told him that Friar had shot her and that she had received a phone call from Friar just prior to the shooting. Aguirre also informed Benish that Friar had sent a text
For reversal, Friar argues that the officers neither individually nor collectively had probable cause to arrest him. He contends that the evidence amounts only to a strong suspicion based on an ambiguous text message and a phone call immediately prior to the shooting. Friar points out that no one claimed to have seen the shooter and that the police located him after the shooting on the other side of town. Friar asserts that the statement he made during booking, the other statements he gave to the police, his clothing, and the information contained on his cell phone must be suppressed as the fruits of the unlawful arrest.
In reviewing the denial of a motion to suppress evidence, this court conducts a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the circuit court. MacKintrush v. State, 2016 Ark. 14, 479 S.W.3d 14. A finding is clearly erroneous, even if there is evidence to support it, when the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been made. Johnson v. State, 2015 Ark. 387, 472 S.W.3d 486.
Here, the officers were advised by Aguirre and Curl of their belief that Friar was the shooter. In addition, they were told that Friar and Aguirre had recently broken up and that he had sent a threatening text message to Aguirre that night. The officers were also informed that Friar had asked Aguirre which bedroom she was sleeping in that night and that he had called her seconds before the shooting. The officers were also advised that Friar had purchased a gun. Moreover, they were aware that Friar was known to be aggressive and combative and that he had been investigated in connection with another shooting. When the totality of the circumstances is considered, we are unable to say that the circuit court clearly erred in ruling that the officers had probable cause to arrest Friar. Therefore, we affirm the circuit court‘s denial of the motion to suppress on this basis.
In addition to the absence of probable cause, Friar argues that the officers violated his right to counsel and his right to remain silent. He contends that, as a consequence, his three statements to the police should have been suppressed.
At the suppression hearing, it was disclosed that Friar had asked for an attorney multiple times during the booking process. Initially, the officers did not tell Friar why he had been arrested. However, Sheriff David Lucas informed Friar about the reason for his arrest within thirty to forty-five minutes of Friar‘s arrival. Once the booking process had been completed, Friar was placed in a holding cell. Agents Wendall Jines and Michael McNeil of the Arkansas State Police had been tasked with providing assistance to the Newport Police Department in the investigation. At 7:19 a.m., Jines and McNeil attempted to interview Friar. They advised Friar of his Miranda rights, and Friar indicated that he understood them by signing a rights form. However, after completing the rights form, Friar immediately invoked his right to counsel and his right to remain silent. Consequently, the agents discontinued the interview, and no statement resulted from the encounter.
Michael Smith, a jailer whose shift began that morning at 8:00 a.m., testified that Friar got his attention and asked to speak with Officer Benish. Benish then came to the jail to meet with Friar. Benish testified that he reminded Friar that he had earlier declined to visit with the agents from the state police. He said that Friar explained that he did not speak with the agents because he did not know them but that he wanted to talk to Benish. Benish informed Friar of his rights, and Friar agreed to waive them. The rights form signed by Friar was completed at 8:22 a.m., and the interview lasted approximately twenty minutes.
Friar gave a statement to Agents Jines and McNeil at 11:19 a.m. Jines testified that he learned that Friar had initiated contact with Benish after refusing to speak with him and McNeil earlier that morning. At the beginning of the taped interview, Jines said to Friar that Friar‘s agreement to speak with Benish gave Jines the opportunity to talk to him. Jines did not repeat the Miranda warnings. Jines testified that Friar did not indicate that he did not wish to speak with them or that he wanted an attorney. During this interview, Jines asked Friar where he was at 2:32 a.m. that morning. Friar told him that he had been on Garfield Street.4 However, after Jines told Friar that his location could be pinpointed by using cell-phone towers, Friar stated that he was in the Crossroads area of town at that time. At the conclusion of the interview, Friar told the agents that they could talk to him “anytime.”
Jines and McNeil met with Friar again that day at 5:34 p.m. At the start of this third interview, the following exchange occurred:
JINES: Robert let me go back over something with you to make sure we understand each other. This morning I came in here and talked to you and you didn‘t want to talk to me then. Then you called, had them call Chuck Benish. Chuck came up here cause you wanted to talk to him and then I come up here a little while later and I asked if I could talk to you and you said it was okay. Right?
FRIAR: Yeah.
JINES: And I want to talk to you some more right now, is that okay? All right. This is the rights form that I read to you this morning. Do you
remember me reading that to you and you initialed and signed it. Do you understand your rights?
FRIAR: Yes.
JINES: Okay. It‘s okay to talk to you?
FRIAR: I don‘t care.
In this statement, Friar continued to deny that he had shot Aguirre and her child.5
For reversal of the circuit court‘s decision not to suppress these statements, Friar first argues that the officers violated his rights by failing to scrupulously honor his requests for an attorney. The State responds that the statements were not taken illegally because Friar subsequently initiated contact with Officer Benish.
Both the Fifth and Sixth Amendments provide a right to counsel. Vidos v. State, 367 Ark. 296, 239 S.W.3d 467 (2006). Under the Fifth Amendment, the right to counsel is derived from the amendment‘s prohibition against self-incrimination while in custody. Wedgeworth v. State, 374 Ark. 373, 288 S.W.3d 234 (2008) (citing Miranda v. Arizona, 384 U.S. 436 (1966)). When the right is invoked, it must be “scrupulously honored.” Fritts v. State, 2013 Ark. 505, at 8, 431 S.W.3d 227, 231 (quoting Miranda, 384 U.S. at 479). Thus, when an accused has invoked his Fifth Amendment right to counsel during custodial interrogation, he cannot be subjected to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication,
In this case, the record shows that Friar asked for an attorney during the booking process and that he invoked his rights at approximately 7:19 a.m. during the attempted interview with agents Jines and McNeil. Less than an hour later, Friar, of his own volition, asked to speak with Officer Benish. Benish reminded Friar of his earlier request for an attorney and of his refusal to speak with Jines and McNeil. Benish also advised Friar of his rights, and Friar executed a rights form. Although Friar had previously invoked his rights, he clearly waived them less than an hour later when he initiated further communication with Benish and gave a statement after being informed of his rights. Based on established precedent as applied to the facts of this case, the circuit court‘s ruling on this point is not clearly erroneous.
The question then becomes whether Friar voluntarily and intelligently waived his rights. Friar asserts that his statements were the product of intimidation and deception rather than a free and deliberate choice. He maintains that the acts of intimidation began when he was arrested at gunpoint by two officers. Friar points out that at first the officers did not
A statement made while in custody is presumed involuntary, and the burden is on the State to prove by a preponderance of the evidence that a custodial statement was given voluntarily and was knowingly and intelligently made. Dickerson v. State, 363 Ark. 437, 214 S.W.3d 811 (2005). In determining whether a waiver of Miranda rights is voluntary, knowing, and intelligent, we look to see if the statement was the product of free and deliberate choice rather than intimidation, coercion, or deception. Williamson v. State, 2013 Ark. 347, 429 S.W.3d 250. In making this determination, we review the totality of the circumstances surrounding the waiver, including the age, education, and intelligence of the
When we examine the totality of the circumstances, there is no basis to overturn the circuit court‘s decision. As stated, Friar initiated contact by asking to meet with Benish. Benish referred to Friar‘s earlier refusal to speak with the agents from the state police, and Friar explained to Benish that he had declined to talk to them only because he did not know them. Before taking the statement, Benish apprised Friar of his rights, and as signified by his signature on the rights form, Friar agreed to waive his rights and to speak with Benish. Although agents Jines and McNeil did not repeat the Miranda warnings during the interview at 11:19 a.m., we have recognized that there is no constitutional requirement that a suspect be warned of his Miranda rights each time he is questioned. Bryant v. State, 2010 Ark. 7, 377 S.W.3d 152. We observe that Friar had been advised of his rights twice in the hours before that statement was taken, and it is significant that Friar understood his rights by invoking them on the first occasion. Also, Friar told the agents at the conclusion of the 11:19 a.m. interview that he would speak with them at “anytime.” Moreover, at the interview at 5:34 p.m., Friar acknowledged that he had agreed to speak with the agents earlier that day and that he was willing to meet with them at that time. During the final interview, the agents once again reminded Friar of his rights, and Friar agreed to meet with
Concerning the allegation of intimidation, at the suppression hearing Jines testified that he did not recall telling Friar that he would build a capital-murder case against him. Jines did advise Friar during the interview at 5:34 p.m. that a charge of capital murder could carry the death penalty and that the prosecutor was not likely to be lenient if he did not cooperate. The record also supports Friar‘s claim that the agents were not completely candid with him, such as when they told him that his location could be pinpointed by use of cell-phone towers. The agents acknowledged that this representation was false because determining the location of a cell phone requires two cell-phone towers, and the area had only one tower. However, the fact that a police officer makes an untrue statement during the course of an interrogation does not necessarily render an otherwise voluntary statement inadmissible. Goodwin v. State, 373 Ark. 53, 281 S.W.3d 258 (2008). We have found no fault with an interrogator trying to persuade an accused to tell the truth or to answer questions, even though there may be misrepresentations of fact made by the interrogator, so long as the means employed are not calculated to procure an untrue statement and the confession is otherwise voluntarily made. Pyles v. State, 329 Ark. 73, 947 S.W.2d 754 (1997). “The police may use some psychological tactics and coercive statements in eliciting a custodial statement from the accused so long as the means employed are not calculated to procure an untrue statement, and the accused‘s free will is not completely overborne.” Osburn, 2009 Ark. 390, at 54, 326 S.W.3d at 800 (quoting Rankin v. State, 338 Ark. 723, 729, 1 S.W.3d 14, 17, (1999)). We cannot say that the tactics employed by the agents were
Although mental capacity is a factor to be considered, standing alone it does not support suppression. Sweet v. State, 2011 Ark. 20, 370 S.W.3d 510. Here, the mental-health expert, who testified on Friar‘s behalf at the hearing, stated that Friar‘s intelligence quotient placed him in the category of mild intellectual disability. However, the expert said that he was in no position to say that Friar did not understand his rights. Additionally, the fact that the defendant is not a stranger to the criminal-justice system is a factor to be considered in determining whether a custodial statement was voluntarily made. Rankin v. State, supra. At the suppression hearing, the State introduced into evidence Friar‘s numerous previous convictions, which demonstrate that Friar was well-acquainted with the criminal-justice system. All things considered, we affirm the circuit court‘s ruling denying Friar‘s motion to suppress.
III. Motion in Limine
Friar next argues that the circuit court committed reversible error by granting the prosecutor‘s motion in limine to exclude testimony that a third person had confessed to the crimes. He asserts that the testimony qualifies for admission as a statement against interest. In response, the State counters that the testimony is not admissible on that basis because the statement is not clearly trustworthy.
Pursuant to Rule 804(b)(3), a statement against interest is an exception to the rule against hearsay, provided that the declarant is unavailable. The rule states in pertinent part,
A statement which was at the time of its making so far contrary to the declarant‘s pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability or to render invalid a claim by him against another or to make him an object of hatred, ridicule, or disgrace, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offering to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.
In the present case, the State does not dispute that Miller is unavailable and that Miller‘s admission tended to subject him to criminal liability. At issue is whether Friar presented to the circuit court corroborating circumstances that clearly demonstrate the trustworthiness of the statement. In his argument to the circuit court, Friar maintained that Miller‘s statement was trustworthy because, according to Brandon‘s statement, Miller had expressed an interest in disposing of the gun. Friar also insinuated that Brandon might have
Given the arguments presented to the circuit court, we discern no abuse of discretion in its decision to exclude the testimony. The circuit court considered Miller‘s drug usage in assessing his reliability. The court also took into account the inconsistencies between Bessie‘s statements, and the timing of her disclosure, as well as her familial relation to Friar. The circuit court could discard Friar‘s explanation for Bessie‘s failure to come forward sooner because Miller was dead and no longer in need of protection, while her nephew was in jail and facing the charges. The circuit court was apprised of Brandon‘s statement that Friar had given him the handgun, and not Miller. Otherwise, the record reveals scant information surrounding the circumstances of Miller‘s alleged revelation to Bessie. We know only that the two were friends and that the statement was made in the month after the shooting and before Miller‘s death. Based on this record, we hold that the circuit court did not err in ruling that Friar failed in his burden of demonstrating trustworthiness of the statement.
IV. Lesser-Included Offenses
We have often stated that the refusal to give an instruction on a lesser-included offense is reversible error if the instruction is supported by even the slightest evidence. Starling v. State, 2016 Ark. 20, 480 S.W.3d 158. However, we will affirm the circuit court‘s decision to not give an instruction on a lesser-included offense if there is no rational basis for doing so. Jones v. State, 2012 Ark. 38, 388 S.W.3d 411. It is well settled that when a defendant makes a claim of innocence, no rational basis exists to instruct the jury on a lesser-included offense because the jury need only determine whether the defendant is guilty of the crime charged. Flowers v. State, 362 Ark. 193, 208 S.W.3d 113 (2005); Atkinson v. State, 347 Ark. 336, 64 S.W.3d 259 (2002); Chapman v. State, 343 Ark. 643, 38 S.W.3d 305 (2001).
V. Rule 4-3(i) Review
Affirmed.
BAKER, J., concurs.
BRILL, C.J., and DANIELSON and HART, JJ., dissent.
KAREN R. BAKER, Justice, concurring. I concur in the decision to affirm the circuit court, but I write separately because I would apply a different analysis to Friar‘s claim that the circuit court erred in denying his request for instructions on first-degree murder and second-degree murder as lesser-included offenses to the charge of capital murder, as well as instructions on attempted first-degree murder and attempted second-degree murder as lesser-included offenses to attempted capital murder. Because the evidence in this case does not support that a rational basis exists for giving the lesser-included instructions, I would affirm the circuit court.
Friar was convicted of capital murder, which requires proof that “[w]ith the premeditated and deliberated purpose of causing the death of another person, the person causes the death of any person.”
The test for whether an instruction should be given is whether there is the slightest evidence to support the instruction and whether there is no rational basis for giving the instruction. Morris v. State, 351 Ark. 426, 432, 94 S.W.3d 913, 917 (2003). Accordingly, in reviewing whether slight evidence or a rational basis exists for giving the instructions, the court considers what evidence Friar could have relied on as a rational basis to support giving the instructions. Friar must point to evidence in the record that supports a finding that he acted knowingly or purposely. See Flowers v. State, 362 Ark. 193, 213, 208 S.W.3d 113, 129 (2005).
Counsel . . . reasoned that this is not a case of all o[r] nothing such as a case in which someone walks up to someone and executes them, rather this case involves a shooting from outside the house. . . Thus jurors could decide that even if Friar was the shooter, he might not have known anyone was in the room into which he shot FN1; or that he meant to injure, but not kill anyone; or that he did this knowingly or purposefully, rather than premeditated intent.
FN1. [Aguirre‘s] admission that the room she was sleeping in that night, for the first time, was not her usual place to sleep, supports this theory.
Despite Friar‘s claim, Friar does not point to any evidence to support his position. The record demonstrates that Friar sent the following text message to Aguirre hours before the shooting:
YEA I WILL HAVE THE LAST SAY SO UN UR MOM TELL D KIDS U LOVE THEM.
The evidence also demonstrates that Aguirre testified that seconds prior to the shooting, at 2:32 a.m., she was sitting on the side of her bed and felt her phone vibrate as she was receiving an incoming call. She testified that she reached underneath her pillow to retrieve her phone, that Friar was calling her, and that she accidentally answered his call and then said “hello.” She testified that he “said something into the phone and hung up. And then shots were fired.” She testified that she knew it was Friar calling because she had his name and picture saved for when he called and she heard his voice. Aguirre also testified that when she answered her phone that the light on her phone illuminated, her bedroom light was off and she was facing the window. Additionally, Arkansas State Police Criminal
Based on my review of the record, as well as the facts and evidence introduced at trial, the record does not support a rational basis to support giving the lesser-included instructions. In sum, the evidence demonstrates the following:
- Friar had threatened Aguirre in a text message earlier in the evening.
- Moments before the shooting, Friar called Aguirre. Aguirre, while sitting on the edge of the bed in her bedroom and facing the window with the lights out, answered Friar‘s call, which illuminated her phone and the bedroom.
- Seconds after answering Friar‘s call, a gun was used to fire seven shots through Aguirre‘s bedroom window.
- The shots were fired through the same lower left pane directly at the bed where Aguirre was located.
Accordingly, the evidence supports that Friar acted with premeditated and deliberated intent and does not provide a rational basis to support giving the lesser-included instructions.
PAUL E. DANIELSON, Justice, dissenting. I respectfully dissent. I would reverse and remand on the basis that the officers lacked probable cause to arrest Friar on the
The State‘s primary argument to support its claim that the officers had probable cause to arrest Friar is that Aguirre and Curl told the officers that Friar was the shooter. The State admits that the officers never asked Aguirre or Curl whether they had actually seen Friar fire the shots. In an attempt to explain why the officers arrested Friar without any evidence that he was the shooter, the State claims that at the time of the arrest, the officers were not aware that no one had seen Friar shooting the gun. Following this flawed logic, anyone could have been arrested for this shooting based simply on a statement by another person.
There has been no explanation by the State as to why the officers never asked the crucial question of whether Friar had been seen firing the shots. The State had no evidence at the time of the arrest other than mere statements from Aguirre and Curl that Friar was the shooter. In fact, when interviewed at the hospital, Aguirre testified that she had not seen Friar in two days. In this case, at the most, the officers had reason to suspect that Friar was the shooter, which does not amount to probable cause. Taking into account all of the information that the officers had (and did not have) in their collective knowledge at the time of the arrest, I would hold that they lacked probable cause to arrest Friar. For the reasons set forth above, I would reverse and remand.
JOSEPHINE LINKER HART, Justice, dissenting. I respectfully dissent from the majority‘s conclusion that the circuit court did not err in refusing to grant Robert Friar‘s request to instruct the jury on the lesser-included offenses of first-degree murder and second-degree murder, as well as instructions on attempted first-degree murder and
When the defendant takes the stand and denies having committed the offense, then according to Doby and its progeny, the jury must either believe the State‘s case and convict, or believe the defendant‘s case and acquit. However, when the defendant does not present evidence, the jury is not faced with an all-or-nothing situation. In Henson v. State, 296 Ark. 472, 757 S.W.2d 560 (1988), this court considered the application of Doby, 290 Ark. 408, 720 S.W.2d 694, and reached the conclusion that, in a situation in which the defendant “did not take the stand to deny his guilt,” it did not “lessen the state‘s burden,” as his “not guilty plea put the burden on the state to prove his guilt.” Id. at 474, 757 S.W.2d at 561. The court held that when “the facts are susceptible of more than one interpretation, a lesser included offense instruction should be given.” Id., 757 S.W.2d at 561. The court stated, “This is not a case of all or nothing.” Id. at 475, 757 S.W.2d at 561. Thus, when the defendant does not present a defense at trial, the court should consider whether the facts
Friar was convicted of capital murder, which requires proof that “[w]ith the premeditated and deliberated purpose of causing the death of another person, the person causes the death of any person.”
Here, the facts presented by the State are susceptible of more than one interpretation relating to Friar‘s intent. Delana Aguirre testified that the shooter fired a weapon through a bedroom window. The lights were out in the bedroom, and the window blinds were closed, precluding her from seeing outside the window. Because the shots were fired through a bedroom window where the blinds were shut and the lights were out, the facts presented
This court has acknowledged many times that an instruction on a lesser-included offense is appropriate when it is supported by even the slightest evidence, and an instruction should be excluded only when there is no rational basis for giving it. See, e.g., Grillot v. State, 353 Ark. 294, 318, 107 S.W.3d 136, 150 (2003). Recently, we restated our assertion that “no right has been more zealously protected by this court than the right of an accused to have the jury instructed on lesser-included offenses.” Starling v. State, 2016 Ark. 20, at 12, 480 S.W.3d 158, 165. Here, the circuit court abused its discretion in denying Friar‘s request to submit a jury instructions on the lesser-included offenses. Thus, I respectfully dissent.
I further dissent from the majority‘s analysis relating to the admissibility of Tony Miller‘s out-of-court confession to the crimes. It is an open question whether Rule 804(b)(3) of the Arkansas Rules of Evidence obligates this court to inquire into the trustworthiness of the witness, Bessie Brandon, who would have related to the jury the declarant‘s confession. As one court noted,
A strong argument can be made that the credibility of the witness is irrelevant to admissibility under Rule 804(b)(3), which is basically a hearsay rule. A test for admissibility of hearsay statements based on the credibility of the witness who testifies about the statement is unrelated to the purpose of the general rule against hearsay. Hearsay statements are usually excluded because the declarant is unsworn and unavailable for cross-examination and because the jury cannot evaluate his demeanor. Consistently with these rationales, exceptions to the hearsay rule in Rules 803 and 804 are made because the circumstances of the declaration indicate that the declarant‘s perception, memory, narration, or sincerity concerning the matter asserted in the statement is trustworthy. The jury can evaluate the perception,
memory, narration, and sincerity of the witness who testifies about the hearsay declaration, and that witness testifies under oath and subject to cross-examination. To exclude a hearsay statement because of doubt that it was made is to exclude it not because of its hearsay nature but for some other reason. Although some other rule of evidence (possibly Rule 403) may give the judge the authority to exclude evidence on that other basis, Rule 804(b)(3), to the extent that it is a hearsay rule, does not.
United States v. Satterfield, 572 F.2d 687, 691–92 (9th Cir. 1978) (citations omitted).
Essentially, the majority affirms the circuit court‘s exclusion of Miller‘s statement by focusing on whether Bessie Brandon was credible. Bessie Brandon‘s credibility, however, was a question for the jury, not the trial judge. As Satterfield suggests, the focus should have been on the facts relating to the trustworthiness of Miller‘s statement. Those facts would have included Albert Brandon‘s testimony that Miller told him how to dispose of the weapon, as well as his intimation that Miller gave him the gun. Thus, I respectfully dissent from the majority‘s analysis on this issue.
BRILL, C.J., and DANIELSON, J., join in this dissent.
Janice W. Vaughn, Arkansas Public Defender Commission, for appellant.
Leslie Rutledge, Att‘y Gen., by: Brad Newman, Ass‘t Att‘y Gen., for appellee.