*1 that, years, he during tified those did citations, any misdemeanor
issue traffic or he did not summons present occa- Graves testified that on two jury. calls during years, those received sions county “informing officials [him] from area,” going [his] what was on in but In any assistance from him. requesting addition, out, County points as Greene constables, salary for setting per- the duties
quorum considered county request formed constables reviewed the salaries of constables other in the from counties state.4 evidence and before the circuit |inthe quorum court demonstrates setting court had a rational basis for $25-per-month salary for constables.
Affirmed.
Dec. Rehearing Denied Jan. 2014. also, 380
See S.W.3d 368. ríes, Many paid salary ranged 4. per $1 $300 counties no amounts paying year. For sala- constables. those counties *6 PLC,
Montgomery, Wyatt, & Adams Rock, by: Wyatt and Little James W. Dale Adams, appellant. E. for Gen., McDaniel, Att’y by: Dustin Laura Shue, Gen., Att’y appellee. Ass’t
BAKER, KAREN R. Justice. 9, 2012, May appellant, Dale
hOn
Green,
by Randolph
was convicted
Coun-
ty
Circuit Court
of four counts of
murder
count of
capital
kidnap-
and one
ping.
was sentenced to four terms of
possibility
imprisonment
life
without
parole for the
convictions
capital-murder
forty years
kidnapping
for the
convic-
and
Billy’s
tion.1
convictions and sentences are
Billy’s origi-
the result of his second trial.
were
nal convictions and sentences
re-
reader,
family
will refer to
Dale
members of the Green
testified wit-
1. To aid
we
name,
Billy,
his first
as several
in this case.
Green
nesses
(10)
by this court
settle the record and
the circuit court
versed and remanded
478,
judgment-and-
erred
it
Ark.
when
amended its
Green v.
(2006) (Green I),
sentencing order.
based on
allowing
pres-
court’s error in
State to
jurisdiction pursuant
This court has
other
evi-
reputation
ent
and
bad-acts
12(a)(2) (2013).
Sup.Ct.
Ark.
R.
We find
2011,
Billy’s
In
we denied
subse-
dence.
no error
affirm.
affirming
denial
quent appeal,
the circuit’s
|SA summary of the facts is as follows.
Brady
for alleged
of his motion to dismiss
30, 1998,
July
On
Lisa Elliott and her six-
92,
violations. Green
son,
year-old
Gregory, were found dead at
II).
(Green
Thereafter, in
proximately
sufficiency of
challenge
verdict
a
to the
discussing
and Chad
overheard
she
|5evidence.
State,
v.
Ark.
Carl,
Whitt
365
with
disagreement
had a
(2006).
580,
review
232
459
When
of it.
and had to take care
sufficiency
to the
of
ing
challenge
UPhillip
inmate at
an
a federal
Shockey,
evidence,
the evidence
this court assesses
Worth, Texas,
in Fort
facility
correctional
in the
most favorable
the State
light
together
housed
with
testified that while
supports
only
considers
evidence that
Department
Billy at the
of Cor-
Arkansas
State,
217,
v.
366 Ark.
verdict. Gillard
Unit, Billy
Shockey
told
rection’s Varner
(2006).
affirm a
310
We will
he had killed Felicia.
evi
judgment
conviction if substantial
support
dence exists to
it. Id. Substantial
that he
Billy testified in his own defense
evidence is evidence which is of sufficient
murders,
which
was not involved with
will,
rea
force and character
it
with
committed,
only helped
Chad
Chad
compel
one
certainty,
sonable
a conclusion
up.
cover them
other,
way
resorting
or the
without
Billy as
forth
jury
convicted
set
State,
speculation
conjecture.
or
Ricks v.
above, and
followed.
appeal
this
(1994).
601,
316 Ark.
that the commits if: person capital is unreliable.2 A murder argument appeal. regarding testimony 2. We will in his seventh address treating Shockey’s accomplice as
facilitating offense, the commission of an he: |6(4) premeditated and deliber- With (1)Solicits, advises, encourages, or causing the death of purpose
ated
of
it;
coerces the
to
person
other
commit
person,
another
he causes
death of
or
any person.
|7(2) Aids,
aid,
agrees to
or attempts to
and deliberation
“Premeditation
aid the other
person
planning or com-
may be formed in an instant. Winston v.
it;
mitting
or
372 Ark.
pertinent part:
result;
the conduct
causing
or
(a) A
person commits
offense of kid-
(2) Aids,
aid,
agrees to
or attempts to
if,
consent,
napping without
he restrains
aid the
person
planning
other
or en-
person
another
so
to interfere sub-
gaging
result;
in the
causing
conduct
stantially
liberty
pur-
with his
with the
or
pose of:
(3) Having
duty
legal
prevent
result,
causing
conduct
fails to make
(4)
him,
Inflicting physical injury upon
proper effort to do so.
intercourse,
or of engaging in sexual
(b)(l)(3)
5-2-403(a)(l)(3),
§
Ark.Code Ann.
or
activity,
deviate sexual
sexual contact
(Repl.1997).
with him.
one can
Accordingly,
be an ac
theory
State’s
the case was
solicits, advises,
if
complice he
encourages,
Billy was
In
accomplice.
Chad’s
cases
or coerces the
person
other
to commit the
theory
accomplice liability
where
is offense;
aids,
aid,
or
agrees
attempts
implicated,
sufficieney-of-the-
we affirm a
aid
person
the other
in planning or
challenge
if substantial evidence
committing the offense.
Id. Under the
exists that the
acted as an
defendant
ac
statute,
accomplice-liability
a defendant
complice in
alleged
the commission of the
*9
may properly
guilty
be
not only
found
of
offense. Cook v.
conduct,
his own
also
but
the conduct of
accomplice-liabili
Our
accomplice;
persons
when two or more
statute,
§
ty
Arkansas
Annotated
5-
Code
one
the
assist
another in
commission of a
that,
(Repl.1997),provides
2-403
crime,
accomplice
each
criminally
is an
(a) A person
accomplice
an
of
is
another
liable for the conduct of both. Clark v.
person
the
of an
commission
offense
on the other, liability is con- as criminal their on their daughter insofar had found dead one Id. cerned. the Sa- porch” at Elliotts’ address. front a.m. arrived at the scene at 7:09 mons case, we the Turning to facts immediately upon testified that Samons testimony presented. review the must 19entering Gregory lying home the he saw trial, Rose, for operator a 911 At Eddie floor, living the room deceased. on re- County, that he testified Randolph quiet a television that except house was |sa at 12:22 July on ceived call on, and there blood and indica- was was mother, Mary from Lisa Elliott’s a.m. kitchen, on the struggle of a in the tions from Rose the call Thomas.3 received floors, blinds, windows, the the Venetian regular- the office’s dispatch Thomas on heat-and-air-conditioning unit and the telephone request line with a business the windows. also testified one of Samons at the Elliott a welfare check conduct on an struggle that there was evidence of after it was that screams reported home Rose home. system from Elliott home. intercom the Elliott were heard the inside were thunder- testified there the system also The intercom was connected to night, in the area but he did storms Elliott adjacent DuBois housetrailer reports flooding in Dalton. not receive While he outside the Elliott home. was Barber arrived at Deputy Randy Sheriff investigators, discussing with other home at 1:18 Elliott home at 1:15 a.m. and the officer, Samons the search with another “all reported dispatch a.m. back to [was] body that he on the testified saw Lisa’s had the resi- quiet and he no contact at the across porch of DuBois house-trailer Rose that he re- dence.” further testified the Elliott home. He believed Lisa from a second call from Thomas around ceived through had crawled the window El- with a report regarding 6:31 a.m. home, DuBois house- Elliott reached the again. Rose testified that liotts’ residence home, across from and had trailer her hysterical and that it took Thomas banging been on door. get him some time the information Huddleston, in the Thomas, investigator Steve an was that Lisa was report but State the front Rose further criminal division with the Arkansas porch. dead on murders, that he a third call testified received at Police at the time of the testified reporting Virginia 6:50 a.m. from DuBois4 assisted in that he arrived the scene and porch was dead her front that Lisa investigation. that there He testified open not door to leave the she could house, throughout including was blood blocking the body home because Lisa’s room, dining but not limited door. kitchen, kitchen, appliances in the windows, blinds, and the win- Venetian Samons, County Randolph
Rob unit. also testified that murders, dow Huddleston at the testi- Sheriff time of the a tire tool in the children’s bed- he found morning July early fied that on on the floor under one of the beds. he was to the Elliott room dispatched Kenny did Mary testify Thom- The DuBoises Thomas did at trial. band DuBois. 3. testify testified messages at trial. Sheriff Rob Samons relayed dispatch as she to 911 right.” the DuBoises were "not Virginia received information from DuBois. ex-stepmother and DuBois is Lisa Elliott’s *10 record, property Virginia is also re- lived in a house-trailer on the same In the DuBois 4. Virginia hus- ferred to as Miller. adjacent to the home with her Elliotts’ Channel, cutting a forensic State Crime neck. Lisa’s wounds were consis- Kermit Laboratory serology and investigator knife, in tent with a and the blunt-force trau- murders, the time of the testified DNA at could by ma wounds have been a caused processed the submitted that he stabbing tire tool. wounds Lisa suf- family’s during the crime lab the Elliot half, fered cut trachea completely her in investigation. testified murder Channel half, artery cut her carotid in her and cut only DNA and Gregory’s that Lisa’s and in half. jugular Finally, vein Dr. Peretti found at the further blood were home. He Felicia’s testified that death was a homi- that the tire tool was tested and testified by cide undetermined means. DNA blood were with consistent Shockey, Phillip an inmate in federal Gregory’s. testified Lisa’s Channel Worth, Texas, prison Fort time serving party would reason that a third that 110he | fraud, for also testified. At tool, handling the tire but the individ- was nwire testified, Shockey pa- time he had been did not shed DNA or was wear- ual either serving no roled Arkansas was time for because there was other ing gloves conviction, DNA found on the tool. also his federal but he Channel testified that sample that a from testified material was not offered reduction of time or seats in the was one Elliotts’ vehicle leniency from Arkansas fed- authorities or tested, and the could not also Green males eral in exchange authorities for his testi- from that sample. be excluded mony. Peretti, Dr. Frank pathologist forensic Shockey that previously testified he had Lab, per- with the Arkansas State Crime been incarcerated was Arkansas and Elliotts, autopsies on each formed housed at Varner Unit of the Arkansas four deaths were to be and all determined Department Correction in the bar- same homicides. Carl’s death was the result of Billy. Shockey racks with testified that he head, gunshot two wounds to the with one Canah, friend, had a from the home- same point-blank range, shot and the other younger town who was much than Shock- away. cutting from farther Carl also had time, ey. At Canah in his to his face testi- wounds and neck. Peretti midtwenties, and Shockey in his midfor- fied that Carl’s wounds were consistent received from regularly ties. Canah mail being by
with inflicted a knife a small if girlfriend. Shockey his asked his Canah Dr. gun. caliber Peretti next testified girlfriend a friend send had that would Gregory’s death was at least by caused Shockey. letters to Canah responded wounds, blunt-and-sharp-force nine trauma an man Shockey was old and too old and that wounds were consistent girlfriend’s Shockey friends. respond- by wounds could have been caused ed that liked young girls, younger he by tire tool and a knife. also Dr. Peretti Shockey the better. As com- made this Gregory cutting testified suffered ment, Billy up walked overheard that, among things, wounds cut other end of their conversation and smiled. through artery, his trachea and his carotid later, Shockey days testified that a few with being consistent a knife. inflicted Shockey him Billy approached and told Dr. Peretti testified that Lisa Elliott died young girls Shockey that he wounds, liked as well. multiple blunt-force trauma Billy that explained girls twenty-seven, at least and also suffered were in He referencing their twenties. stabbing cutting wounds. Lisa had defensive wounds to her and suf- stated “there ain’t no hands testified multiple pussy. fered wounds to head and pussy young her like And I mean *11 you, “if crossed talking pedophile, what I am a but someone You know young pussy. out, taking even if it meant you take them about.” family. they is how out the whole [That] Billy asked Shockey testified that then every- do He said things Pocahontas.” Billy incar- Shockey if he knew what was Man,” body Billy as “Wild and knows Shockey and about cerated for told “[t]hey Billy knew not to cross Green.” Shockey that testified Elliott murders. story that made Shockey testified him murders follows: explained the Billy sick, age, he had a Felicia’s daughter that Elliott murders were thought the everyone Billy and that no child deserved what and actually but it about Chad drugs about was Chad had done. and that and “messing” with Felicia Carl Cantrell, Hensley former Bonnie Chad’s Shockey about it. Elliott knew Lisa girlfriend, also Bonnie testified testified. | up meeting that a with Chad set ^testified | that known her entire had life Chad iashe issue, discuss shot by the creek to Carl Billy and was a had known since she teen- head, in the went to the Elliott then Carl always ager. She testified that car- Chad death, house, beat the brother to killed the Billy always ried a carried a knife .22 and mom, was for Felicia he looking and when that loop. on his belt Bonnie testified banging on door. Chad realized heard murders, morning after the she received a through had the mom crawled window call at her workplace, from Chad Archer’s he to the trailer next door and finished Cafe, approximately at 8:00 a.m. Chad did by cutting her her throat. Chad killing him pick ride and her to up have a told put got went back and Felicia and her his house on Allen great-grandmother’s Billy, back of his truck called Trail. Bonnie testified she left work that Billy reporting up. that he had messed picked and went and came up Chad. Chad Chad, say told “Don’t another word” and house, car, got out from in the behind They meet took Felicia to a went to Chad. said, “Quick let’s out of here be- get house, kept her a trash can with somebody fore sees us.” Bonnie testified lid, and bungee raped cord across the then wearing long-sleeved was cover- Chad days. They kept her for two her in the home, they alls at her he and when arrived can on the with porch bungee trash back off. took the coveralls She testified that out, get on it so some- cord she could up he was scratched and torn like “some- Billy times for hours. then told “All Chad saw-briars,” body him had beat with good things must come to an end” but bloody was a mess. went to Chad shower Felicia, he because Chad “loved” could not returned to Bonnie Bonnie work. tes- kill her —so carried her into the tified she that when came home work Shockey that Felicia woods. told that day, gone. was Bonnie testified Chad “please don’t hurt me.” took said later, days went to several she Chad’s woods, her into a creek in the and when where and on parents’ house he lived off was over the water at a level Felicia’s her pick up belongings. some of Bonnie head, Billy held her under and cut her arrived, Billy that when testified she throat. came out outside the home. Once Chad Shockey further testified he home, Billy looked and Bonnie at Chad story said, him the thought told because with hands on hips his Billy thought Shockey young you telling liked are lies that- doing “[W]hat they you “kindred girls, spirits.” telling were them lies Chad Shockey testify night you went ex- know damn well on to other she that he raised his to be Bonnie testified that re- plained had not son wasn’t.” *12 people phone. Mary her to tell testified that sponded, Chad had told she night of the wanted to he was with her the murders. talk to because she Chad had while; however, Billy further testified that intimi- not done so in Billy Bonnie and said something dated and scared her went to the phone, talked to Chad for a hell out of “get to the effect of here minutes not let Mary few but would talk to don’t come back.” Bonnie testified and Mary Chad. as soon Billy testified that conversation, as a of that she Chad, that result hung up phone with he then went to law enforcement. to Mary headed the bedroom and followed upset that she not able to was talk to family Several of the Green members bedroom, they got Chad. When Billy to Mary Billy testified at have also trial. grabbed | gloves. trench and some [5coat |14children. five Three of those children Billy She testified that said he had “go to County were in at Randolph the Green mess, mess,” up clean got Chad’s in his murders, Jason, night home on the truck and took testified Billy off. She Mary Amber and Josh. those three usually pistol carried a and a knife children testified. kept a rifle shotgun in his truck. Mary testified that she knew Carl and Mary they further testified that always Lisa Elliott and their She children. testi- police-scanner had a in their home and Billy fied that Carl ran around with Chad, night Billy later had after left she and Carl came to their home fre- a report heard of a quently, two or domestic disturbance approximately three times Elliott home in Dalton. week. She She testi- approx- further testified that fied imately murders, that the first in her thought one month before the mind was hoped that she coming Billy Carl had and Chad were stopped Mary around. involved during they plenty testified because had also this time she time get to the Mary Elliotts’ home. Billy telling overheard Chad that testi- Carl had fied that she ripped Billy again him did not see they going off and were until have day next take and she never saw the trench Mary care of it. testified that Billy again. mad coat was about the situation. She testified paid she attention conversation Mary further testified that she next saw because she had noticed that Carl had Billy daybreak around the following day stopped coming by house. Mary their fur- go get when asked her to Chad to meet ther testified that was a drug dealer. him and the other Green sons at an inter-
Mary’s testimony regard with they go section so to work. Mary could night is as relying murders follows. She testified that Chad was on them for p.m.-ll:00 p.m. worked the 3:00 transportation shift at go asked her to Rehabilitation, Pocahontas Nursing get Chad because did not have regular drove her home which enough gas Mary route took in his get truck. went to minutes, Chad, 15-20 and arrived home but around she could not wake him and he p.m. Mary 11:20 testified she drove never came out. then She continued to route, regular longer her and not the Billy. Mary route the intersection to meet testi- drove up she when the roads were that once Billy, flooded. fied she met with home, She testified that she police arrived instructed her to tell that Billy Jason, Billy, Amber, and Josh were night all at was home all her and Mary the home. “when phone you testified that the went Chad for get work he it, rang, Amber answered announced it had a toothache or sick and couldn’t Chad, and she and both to work.” go headed days. Billy several time after not seen Chad for Mary that some testified *13 wife, murders, workplace Mary, her that his called police came to testified that the her. testified that to check on night prior leaving She work the questioned and minutes after she that twenty thirty status and to make sure the within road enforcement, her law called met with were not further tes- roads flooded. had “you said he had heard August at work and on tified that 1998 Chad called they to have a fami- and needed company” pick they him and as up, him to come were Mary that she called meeting. testified ly killing the driving Chad admitted to Elliott everyone and arranged family of the kids cry. all began Bil- Chad 117and got meet at their home after she to come ly in detail that had commit- testified Chad evening Billy gathered That work. off the murders but that he did not have ted | they told needed to family and them murders, only anything to do with the the lfithe night night he was home all people tell cover-up. Billy testified that he and his Elliott of the murders. family were aware had commit- that Chad they ted the murders but did not turn at the Green testified that he was Jason they in because feared he would be Chad murders, night Green home of the executed. p.m. went to bed around or 10:00 he 9:00 and that his dad was at home when p.m., preceding Based on the facts and went to bed. Jason testified that Chad he circumstances, we hold that there is sub a .22 him and always carried with support stantial evidence to convic side knife. further testi- carried a Jason tions and sentences and the circuit court murders, some fied that time after err in denying Billy’s did not motions for family meeting called a and instruct- directed verdicts. everyone to tell the authorities that the ed First, proof through State offered family night, were all at home that includ- Samons deaths were homicides. Billy and ing Chad. Jason also testified dispatched testified he was Samons brother, Josh, girl- Josh’s that his report after the DuBoises’ and Thomases’ friend, Tracy, family were from the ousted of “their dead on their daughter front meeting Tracy family because was not at the address. porch” Elliotts’ Samons Billy got Tracy mad and made Josh and body Elliott Gregory found inside leave. home, the Elliotts’ Elliott on and Lisa Green, one Billy’s daughters, Amber of a porch nearby front house-trailer. Sa- that she home on the testified was also at 1, 1998, August mons also testified that on murders, night of and that Chad called deputies body found Carl Elliott’s floating dad, the house. She that her testified river. in the Samons further testified that Billy, go talked to Chad and then left to September on Felicia’s remains Chad, and she her help did not see dad were found Mud in the Warm Creek following day. until the Amber also testi- area .5 miles from Springs about where heard re- police-scanner fied that she Billy lived. Dal- of a call in port domestic-disturbance Second, proof through State offered night of ton on the the murders. he Huddleston’s found a Billy testified his defense that had with it in the tire tool blood on Elliott known Elliott. testified Carl He further children’s bedroom. Springs that he was home in Warm Third, murders, death, regard not receive with causes of night did testified that all four were homi- phone night, call Chad that had Peretti Carl’s, Lisa’s, cides, Gregory’s Billy family to lie concerning instructed having night consistent with been caused his whereabouts the deaths murders knife, gun, a a tire and to an alibi by a small-caliber manufacture that he was cutting Mary had from a fact home that testi- evening. tool. Carl wounds also twice, point- morning had been shot once fied that the mur- following knife and ders, away, Chad, once from with a to pick up blank and farther sent her |13she gun. Gregory reported Lisa and were when small-caliber Chad was *14 there, asked, severely Billy beaten and a tool her that if both killed with told she was Billy knife say with a tire tool and a had to that was home all and night consistent a used to cut each of their throats. that had toothache or sick Chad was too 11sbeen approximate- remains were found to come Felicia’s to work.
ly Billy’s .5 miles from home. Seventh, State Bil- proof the offered of
Fourth, Shockey’s ly’s sufficient of the testimony is concealment crimes when Jason jury Billy the family to allow to conclude that testified about the that meeting and that, asked, principal accomplice Billy say an in the crimes. told him if he was to testified that aware Shockey Billy everyone that was at the house the on Elliotts, murders, a disagreement night had with the of including Billy Chad the and proof Billy offered that concealed further Billy also Chad. Jason testified that from law He fur- the crimes enforcement. carried a knife and side Chad carried a .22. Billy killing ther testified admitted Eighth, State proof Billy’s the offered Felicia. the connection to crimes when tes- Amber Fifth, Billy always murders, Bonnie testified that tified the night that on of the side knife Billy phone and, carried a and Chad carried a .22. received call from Chad thereafter, also testified that Billy shortly Bonnie intimidated left go help to Chad. telling her quit her that she better Amber also testified that she the heard lying about Chad’s whereabouts on the police-scanner report a domestic distur- the night of murders because Chad and bance in that night. Dalton Billy night. at home together were review, Upon testimony presented
Sixth, Mary’s trial, Bil- testimony established in the light viewed most to favorable Elliotts, ly’s relationship State, with the the dis- establishes the crimes were Carl, agreement Billy between and committed and Billy connects to Billy’s anger about Mary the situation. crimes. Evidence was offered to establish further Billy’s testified she arrived home at relationship with the victims p.m., driving 11:20 after her 15-20 regular disagreement Billy. between Carl and drive home minute as there was no flood- Evidence was also offered that al- Billy ing to her on a longer send alternate route. a knife ways carried and a small-caliber Mary testified received a call phone pistol with him. Evidence was further Chad, from left to help up Billy’s clean Chad’s offered to establish whereabouts on mess, on, put a trench coat gloves night left evi- including murders home, plenty get and had to to time dence that call phone received the Chad, mess, the Elliotts’ home before she heard the call left go up to clean police-scanner mess, on the about distur- Chad’s and that left a trench bance in Dalton. Mary also testified that coat gloves. Evidence was offered a knife pistol carried and a him. had the time to El- reach the She she Billy’s testified never saw trench liotts’ in Dalton and home commit the mur- murders, again coat and that after report ders before the disturbance Daven of- could not differ thereon.” was further minds Evidence police-scanner. conceal Billy’s attempt to port fered of 373 Ark. Final- an alibi. and to manufacture is free
crimes The trier of fact Billy killed was offered ly, evidence in witness testimo assess inconsistencies Felicia. Barnes v. ny. family
| 2qA member’s lie about an was asked to he or she light Accordingly, in the when viewed the com during whereabouts appellant’s the evidence most favorable is connect a crime sufficient to is mission jury evidence for the convict sufficient I, See Green crimes. appellant Billy. hold We that substantial 487-88, at 647-48. 231 S.W.Sd 365 Ark. at n supports | Billy’s the cir- convictions that, Further, we have held properly cuit court denied motions lay aside required is not [t]he *15 for directed verdicts. the ordi evaluating sense in its common life, may it infer nary affairs of II. Chad Green’s Out-of- expla guilt improbable defendant’s Court Statements conduct. incriminating of nations State, 21, v. Ark. 43 Branscum 345 appeal, Billy his second For State, v. Chapman (2001); 148 S.W.3d the asserts that circuit court erred it (2001). 643, Ark. 305 343 admitted Chad’s out-of-court statements improbable ... [Additionally,] false and rights his and violated Sixth Amendment as evi may considered statements be to con- under Confrontation Clause State, v. Gregory guilt. of 341 dence accuser. front his asserts Sa- (2000). 243, 15 Ark. S.W.3d 690 testimony prior regarding mons’s Chad’s Martin Ark. 57 346 prove statements to Samons were used (2001). 136, 141 S.W.3d prove they were fact false and Finally, credibility of wit in the murder of that Chad involved jury’s a matter consider nesses is for the the Elliotts. contends cir- 25, Tryon v. 263 ation. erred cuit court because Samons’s testimo- 475 court does not “This concerning ny Chad’s statement violated weigh or assess the attempt imper- and was Confrontation Clause witnesses, credibility of the as that deter testimony. agrees The State missible province mination lies within the of the statement was testimonial nature jury may ques trier of fact. The resolve subject but is not to the Confrontation conflicting testimony and inconsis tions of because the statement was admit- Clause may evidence and choose to believe tent only police ted to show action. rather the State’s account of the facts than 32, Id. the defendant’s.” 263 S.W.3d at is testi- At issue Sheriff Ron Samons’s testimony conflicting, is 481. “Where mony regarding investigation credibility of the pass upon we do not colloquy following Elliott deaths. The oc- right disregard witnesses and have no curred: witness after 8th, August On some nine ProsecutoR: credence, it cannot given
has it full where homicides, days you after the did have be it was inher said with assurance to speak the occasion with Chad? ently improbable, physically impossible, clearly reasonable Samons: I did. so unbelievable Sheriff Cantrell, again, Hensley And is tak- with Bonnie this Chad’s for- PROSECUTOR: on mer investigation girlfriend. ing steps talked to him? you this that In hearsay order state Yes. Sheriff Samons: be admissible against ments to defendant suspect he a ... Prosecutor: Was trial, at a criminal separate require l^two No. Sheriff Samons: ments must be met. See Crawford at that ... time? ProseCutor: 60, Washington, U.S. 124 S.Ct. | No. Samons: First, L.Ed.2d an ^Sheriff Okay. you Can tell us did exception general rule prohibiting Prosecutor: you knew indicate whether he Second, must be hearsay demonstrated. the Elliotts? hearsay the admission cannot violate the defendant’s Sixth right Amendment Yes. Sheriff Samons: “to be confronted with the witnesses did he say? Prosecutor: What against him.” Chambers v. said, I Samons: He said he—he Sheriff (inter 407, at know Allen Elliott —who is Allen Carl omitted). Thus, nal citations for the Con said, Elliott, I Elliott. He know Allen invoked, frontation Clause to be the state well. but not real I’ve known him for nature, ment must be testimonial in pretty good while. *16 for its admitted truth. Id. you Did he indicate to Prosecutor: last when was the time he seen— had Here, the testimony was not ad ... again its truth mitted for but was admitted to approach? Can we Defense Counsel: explain a series of police actions in the Further, police investigation. jury objec- The circuit court overruled Billy’s to instructed consider only the statements tion to about testimony Chad’s statement unpersuaded for that purpose. by We are jury: and admonished the affirm Billy’s argument, and we the circuit right. gen- The Court: All Ladies and ruling court on its regarding Chad’s out-of- jury I give tleman of the am going court statements. you limiting jury instruction. And testimony that is about ley III. Bonnie Hens Cantrell’s Wayne
Charles Green -with regards Statement5 testifying sheriff that he is to is not offered for truth of the matter For point Billy his third on appeal, as- simply asserted in this trial but is serts that circuit court erred when it offered as to the of his furtherance denied motion for mistrial based on investigation proceeded. how it Hensley Bonnie Cantrell’s statement The circuit court allowed con- drugs” Billy Samons to she traded “sex for testifying tinue about investigation. years his she was fifteen old. contends testify Samons went on to Chad’s highly about that Bonnie’s statement preju- statements regarding his whereabouts on dicial could not a limiting be cured instruction, July have may Chad and the circuit court erred in grandparents’ been stranded at his house granting a mistrial. The State re- on Allen transportation. sponds Trail without Sa- has failed to demonstrate regarding meeting mons then testified unfair prejudice, his and the instruction cured Hensley Hensley. 5. Bonnie Cantrell testified at the first trial Bonnie as The circuit affirm the motion for mistrial. error; urges denied the it this court Injury that court admonished the circuit court. and to disre- was inadmissible statement following At issue is the statement. gard direct examination: Bonnie on long how Approximately, Prosecutor: Further, the record demonstrates that known Green? you have consideration, much debate and after ten, probably I was Since Bonnie: at the jury court sent the home end years old. twelve day, following came back the morn- So . . . ruling made his after the circuit ing and _[^PROSECUTOR: Pretty my much all life. law had time to review case Bonnie: you are Okay. How old The circuit court think about its decision. Prosecutor: now? attorneys explained ruling to Forty-seven. follows: Bonnie: long you And have how Prosecutor: going is rule Court The Court: know Chad Green? that this was not solicited bad faith. Pretty much all his life. Bonnie: That, is egregious, while Court you Now Pve—I need for Prosecutor: mistrial. IAnd will going to declare a you get jury, how did explain to the extent admonish to know Green? saying response by the last parking met lot. I him in a bar Bonnie: witness was as evidence inadmissible say it be fair to Prosecutor-. Would they are this evi- not to consider you one time were romanti- in their dence deliberations. cally involved with Green? *17 objections continued that an Over romantically. Not We traded Bonnie: testimony, would instruction not cure drugs. sex for granted, a mistrial be and that should approximately Ah—and Prosecutor: following court then gave ad- long ago how was that? monishment to the jury: I fifteen. Bonnie: When was about Okay. yesterday We broke with Bonnie know- And in the course of Prosecutor: Hensley on the witness Cantrell stand. Green, you known him ing Billy have am response limiting And her last ... to be —I jury. response by The the wit- last Attorney: Honor, may Your Defense response has ness—that the Court ruled approach? we response that is an or inadmissible Attorney: Honor, I move Your Defense testimony. inadmissible that last state- for a mistrial based on that she knew ment. She testified Therefore, you to consider are not by trading drugs. sex for any way your consideration this remedy for Billy asserts that there is no case. Is that understood? prej- too
curing testimony, Bonnie’s it was udicial, erred circuit court Jurors nod disagree. The granting mistrial. We everybody nod. Is everybody I need objec- that after the record demonstrates Does know what I everybody with me? tion, that the state- the circuit court found faith, talking about? in bad am ment was elicited
747
(1993).
some
jurors
respond
All
nod and
The
trial court has wide discre
yes.
verbally
granting
denying
tion
or
a motion for
mistrial, and the decision of the trial
regarding
our law
Turning to
court will not be reversed except for
mistrials,
is an extreme and
a mistrial
abuse of
prejudice
discretion or manifest
remedy
only
drastic
resorted to
to be
Davasher v.
to the
complaining party.
prejudicial
there
so
has been an error
State,
154,
308 Ark.
S.W.2d 797
A motion for
in Novak v.
Finally,
mistri
287 Ark.
al is only appropriate
(1985),
where the error is
“We
however,
the circuit court admonished
remedy and
with
a
rests
mistrial is drastic
disregard the
judge.
It should
statement.
the trial
the discretion of
Bonnie’s
judge
repeat
careful
prejudice
is so
only when
granted
be
did
prejudicial
jurors
remark
case the
justice
cannot in
the trial
manifest
not hear it the first time. The trial
277,
Id. at
698 S.W.2d at
continue.”
position
is
better
to determine
State,
538,
284 Ark.
(citing
McFarland
and the
jury,
effect of such remarks on the
(1985)); see also Sanders
Second, during questioning resulted from counsel’s Further, tell Mary initially Mary. testified that she did not circuit court instructed to they jury testimony, the truth when came not consider police to following colloquy her presume jury visit at work. we that a follows circuit occurred: in deciding court’s instructions the case. 385, 391-92, Attorney: Hall v. 315 Ark. to the you So lied
Defense 456-57 We do not find police? regard error with to second Mary’s state- Mary: I I I did. truth guess evaded the ment. free because I was to tell truth. Third, Billy Mary’s asserts that then a mis- Defense counsel moved for on redirect prejudicial statement was also trial, stating, redirect, Billy error. Prior to and the right That is a She—it goes mistrial. State the judge had conferenced with back to the she statement testified before. concerning question the bench line of this goes It Supreme to the control issue. The ing. Billy objected to questioning testify specifically they Court said can’t to Billy’s said it to went control or influence was, Billy’s testimony control. And her T to the objected questions. The circuit wasn’t the truth.’ objection free to tell court overruled | question. allowed On redirect S1 objec- circuit court overruled the IsoThe following colloquy occurred: tion, mistrial, motion for struck denied the regard ProseCUtor: With to all of the answer, Mary’s and instructed the ... police statements officers not consider it. you ... early on in this investi- Mary’s asserts that statement was case; gation you gave before highly prejudicial goes Billy’s con- statements, those who was the Mary, per trol over which was inadmissible only you who person ever told what to Green I. police they tell the ask. case regard that any We hold error Mary: Billy Green er ing this statement constitutes invited that it error asserts was for the error, ror. Under the doctrine invited to allow questioning this one cannot be heard to complain of testimony was error it because served responsible. error for which was only to reiterate that she not free McGhee v. 330 Ark. Billy’s tell the truth because of influence. (1997). Here, although Billy’s counsel Billy argues Mary’s testimony impli- Mary did not intend for to make such cated the issue of “control” over statement, it nevertheless was made her. response questioning. to his a wit Where legitimate ness’s answer response evidentiary This court reviews rulings counsel, a question posed by standard; such using defense an abuse-of-discretion tri- appellant was invited and al are afforded courts wide discretion in evidentiary rulings. circuit court did not abuse its discre See Hawkins refusing tion in declare a See mistrial. In *20 State, 89, Woods v. Ark. 367 relating 342 27 S.W.3d to the of issues admission State, 250, (2000); Hogan 281 663 a ruling great v. Ark. trial court’s is entitled to (1984). result, Billy S.W.2d 726 As a can will not weight and be reversed absent an State, complain not of error that have v. may abuse of discretion. Cook 345 750 Now, (2001); you v. know that Chad 264, S.W.3d 820 Gaines 45
Ark. PROSECUTOR: 2011, (2000). in right? was tried 99, September State, 8 547 Ark. 340 Billy: Yes, sir. circuit asserts Although you So who did contact Proseoutor: discretion, Mary disagree. we abused its you even after trial when knew Chad’s lie to the her to told testified exactly ... creat- evidence that he was police, which is Objection. Can we AttorNEY: Defense involve- up to cover his a false alibi ing your honor? approach ment. objection
The circuit court sustained
reviewing
Mary’s state
In
all of
for
question, denied the motion mis-
review for
our standard of
ments with
cautionary in-
gave
trial and
mistrials,
find no error. A mistrial is
we
Billy objected
cautionary
to a
struction.
granted
remedy that should be
drastic
it would
instruction and asserted that
not
by
justice cannot be served
only when
alleged
cure the
error. The
court
State,
v.
2010
continuing
Taylor
the trial.
objection
gave
overruled the
fol-
372,
trial court
372 S.W.3d
The
Ark.
769.
lowing instruction:
discretion to decide whether
has the sound
asked,
question
last
_|^[T]he
mistrial,
will
and this decision
grant
you
who did
then after Chad’s
contact
|S2be
showing
overturned absent a
trial,
to,
being objected
the court has
upon
prejudice
abuse or
manifest
objection
and is instruct-
sustained
478,
I,
Ark.
party. Green
365
complaining
you to
that utterance ...
ing
disregard
State,
638;
340 Ark.
231 S.W.3d
Jones v.
rendering your
in
decision.
(2000).
390,
Additionally,
jury to Due Process Clause of the Fourteenth (2003); State, 468, Ark. 801 351 95 S.W.3d 619, 96 Amendment.” Id. at S.Ct. 2240. State, 40, 727 v. 292 Ark. Dandridge similarly This court held Jarrean v. S.W.2d 851 60, (1987), 565 v. Ark. Clark no error affirm the circuit We find S.W.2d 812 In Holden testimo- rulings regarding Mary’s court’s (1986) ny. ... we stated that the “issue is whether a comment on the statement] was [the Testimony Dale V. Gh-een’s right of a defendant to remain silent.” We appeal, For his fifth exactly the case was not concluded that the circuit court erred it asserts as in “There Doyle. the same was no grant during a mistrial his own did reference the State to the defen- direct during cross-examination. that the emphasis dant’s silence defen- during cross-examination asserts statement, refused to make a which is dant Ohio, 426 Doyle violated U.S. State Id., Doyle.” the error addressed in (1976), 96 S.Ct. 49 L.Ed.2d S.W.2d at 616. Billy’s right against to silence and used previously, a mistrial is an As stated Doyle. him in violation of be remedy extreme and drastic resorted an only when there has been error so following colloquy: At is the issue
751
justice
by-
jury
cannot be served
circuit court to instruct the
on
prejudicial
accom-
State,
v.
continuing the trial.
306
Billy
Russell
plice liability.
contends that
436,
Because
Ark.
Having Billy’s allega found that Gregory Felicia A Elliott or Elliott. tions of error were we not errors hold that person criminally responsible is for the argument Billy’s cumulative-error is with person conduct of another when he is an out merit. not recognize “This court does accomplice in the commission of an of- the cumulative-error doctrine there fense. is error to See no accumulate.” Gaines v. (2000); An accomplice directly who partic- is one Nooner ipates in the commission an offense or We affirm the circuit court on who, with purpose promoting or point sixth on appeal. facilitating the commission of an offense: AMI 2d Jury
VII. Crim. U0U Solicits, advises, encourages or coerces Accomplice Instructions on offense, the other commit person to Liability aids, aid, or agrees attempts to aid person planning other or commit- For his seventh on ap peal, Billy ting asserts that it was error for the the offense.
752 Billy killing confessed to Fe- law is that a testified that
“Our case clear concealing when the other three jury to a instruction licia to party is entitled Mary of when it is statement law and homicides from law enforcement. a correct in the to Billy’s relationship some basis with the there is testified as to Carl, Elliotts, instruction.” v. giving the Wilson support Billy’s disagreement 550, 554, 222 Ark. a knife a Billy always 364 that carried (2006). Further, instruction “[a]n phone a call from pistol, Billy that received is no only murders, be excluded when there should the and that night Chad it. A giving for trial court’s rational basis Billy up left to clean join Chad “Chad’s jury a instruc ruling on whether submit night in the the mess” a trench coat of abuse tion not be reversed absent an will of time to reach the plenty murders with Ark. of Grillot discretion.” police-scanner report Elliotts before the 136, 150 318, 107S.W.3d Billy the in Dalton. later told disturbance Mary to whereabouts on the lie about his regard accomplice liability, With night of murders. Jason testified that the two assist another in persons or more one knife and Billy always carried a told the crime, an of a each is commission family that was home on police tell liable for “accomplice” criminally and is night of the murders. Amber told both, and participant the conduct of one police phone received the call responsibility cannot disclaim because night from Chad the murders part every take act personally did not went to She also testified that help Chad. up make as a whole. that went to crime police-scanner she heard on the about the Further, § Ann. 5-2-403. Ark.Code in Dalton domestic-disturbance call persons two assist one another “[w]hen night. Finally, Billy’s testimony sup- own crime, the commission of a each is an 137Billy accomplice. an ports |¡¡(-.accomplice criminally for the liable Parker conduct of both.” testimony In reviewing supporting 578 S.W.2d instructions, it cannot be accomplice Finally, previously, “we do as discussed testimony, said with assurance credibility not of the wit- pass upon including Shockey’s, inherently im- right disregard and have no nesses probable, impossible, or so physically testimony witness after the has clearly that reasonable minds unbelievable credence, given where it cannot be it full Accordingly, could differ. See id. we inherently it said with assurance that was hold the circuit court did abuse its improbable, physically impossible, or so accomplice discretion instruc- giving clearly unbelievable that reasonable minds tion. We affirm the circuit on this thereon.” Davenport, could not differ point. at 270.
Ark. at Pyles VIII. Juror
Here,
Peretti,
Jason, Amber,
eighth point
appeal,
Shockey, Mary,
For his
circuit court erred
theory
all
was either
asserts that the
support
denying
Pyles,
remove Juror
accomplice
or an
in the Elliott
his motion to
principal
part-time
for cause because
operator,
murders. Dr. Peretti testified that one or
office
have
she
at the sheriffs
and was
persons
more
could
committed
worked
homicides,
circuit court denied Bil
weapons,
and three different
a biased. After the
cause,
knife,
tool,
ly’s request
Pyles
gun, a
and a tire
to remove
small-caliber
strike
re-
Shockey Billy
peremptory
kill the
were used to
Elliotts.
used
*23
rulings
now
stract all
him.”
Pyles.
moved
asserts that
adverse to
McGe
State,
404, 413-14,
hee v.
328 Ark.
on
peremptory
forced to use his
strike
585,
Blevins,
Pyles,
accept
to
Juror
forcing him
was a
whose brother-in-law
reserve officer
Here,
record,
in reviewing the
we hold
County
Office.
Randolph
in the
Sheriffs
Billy’s
point
that
ninth
merit. Billy
lacks
Billy argues
appeal
on
that
the circuit
portions
fails to show
inaudible
how
removing Pyles
for
court erred
the
affected the
record
merits
his claim.
cause.
The record and the supplemental record
Billy’s challenge
Pyles
demonstrate
to
for
challenge
In
to
juror’s
order
a
cause after she
she
told them
worked at
appellant
on
the
must
presence
appeal,
the
office part-time.
sheriffs
It further
peremptory challenges
have exhausted his
Pyles
demonstrates that
specifically stated
must
he was
to ac
show that
forced
impartial
that she could be fair
despite
cept
juror
who
have been excused
should
her position as a 911
for
operator
412,
cause.
v.
334 Ark.
for
Willis
Also,
State.
as
in the previous
discussed
words,
In other
point
appeal, Billy’s
on
regarding
claim
to re
“must have asked
court
Pyles
Juror
fails because he did not chal-
cause,
court
juror
move
for
and the
Thus,
lenge Juror Blevins for cause.
improperly
request.”
must have
denied the
portions
inaudible
of the record have no
Id. at
894-95.
on
bearing
Billy’s
the merits of
claim.
Therefore,
|S9on
we affirm the circuit court
Here,
the record demonstrates that
point.
this
challenge
did not
Juror Blevins for cause.
Accordingly, Billy
prove
has failed to
X. Amended Order
juror
forced on him that
the seated
his
on
point
appeal, Billy
final
For
|
she
have been excused for cause.
ssShould
asserts that
by
circuit court erred
Thus, Billy’s
point on
eighth
appeal
is
judgment
its
amending
and conviction or
without merit and we affirm the circuit
der because the circuit
lacked juris
court
court.
requests
diction. He
court
that this
strike
the circuit court’s
order.
amended
IX.
Settle the
Motion to
Record
On October
the circuit court
For
ninth
Bil
appeal,
his
to
entered an amended order
add the re-
ly asserts that the
court erred
quirement
register sex of-
ruling
on his motion to settle the rec
pay
pursuant
fender and
fees
to Ark. Code
portions
ord as to
bench conference
12-12-903,
§§
Ann.
910 (Repl.
905 and
regarding
challenge
to Juror
for
Pyles
2003). Billy
challenge
does not
the sexual-
cause.
registration requirements.
offender
In
Jacobs
327 Ark.
In
McCuen
(1997),
was known DANIELSON, JJ., join. CORBIN were by the wounds suffered the victims having been caused consistent too, up to “clean
knife. And went family mess” and to lie Chad’s told night about his whereabouts on