*1 294 the criminal characteristic the adversarial process means that ultimately That the differently.
justice system proceeded acceded they evidence that death Robbins to sentenced instruc- to follow the court’s is presumed The jury his wishes. 776 S.W.2d tions. Logan at 423. 27 S.W.3d the result of was not that the death sentence We hold or prejudice. passion enumer- issues for the remaining
No error reversible appears 10. P. —Crim. ated under Ark. R. App.
Affirmed. Z. v. STATE of Arkansas
Eric GRILLOT CR 01-792 Court of Arkansas Supreme delivered May
Opinion *6 Lisk, Associates, D. for Ed Webb& by: appellant. Lynn Gen., K. Ass’t Mark by: Clayton Hodges, Att’y Pryor, Att’y Gen., for appellee. Eric Z. Appellant Imber, Clinton Justice. murder,
Annab elle Grillot was convicted jury theft of and hindering robbery, property, apprehen- aggravated sion, Grillot first argues and now raises five on points appeal. his confessions. He court the circuit erred refusing suppress evidence to his con- of the also challenges sufficiency support claims that the For his third and fourth victions. points, motion for a new trial based circuit court erred in his denying to allow defense counsel to misconduct and erred refusing juror in closing different standards argument. argue burden-of-proof the model instruction for final he cоntends that jury point, of the law and that murder contains an incorrect statement it was error the circuit court to instruct the on lesser- *7 included' offenses. 14, 1998,
On Eric Grillot left February his home in Alabama with and his roommate Will The Jeremy Phillips three Jackson. were inoff Arkansas where his going drop lived. Phillips family drove all in truck and were They night lawby stopped Jackson’s enforcement officers once in Dumas for while Grillot speeding was in the Fairfield area driving. arriving about 7:00 Upon Bay 15th, a.m. on the of the the three at morning the home of stopped Grillot’s in where visited for one parents Shirley they or two hours. had never been to Fairfield so drove him Bay, they Jackson drive, around him the area. showing a During at they stopped station in Greers where gas made Ferry some Phillips purportedly calls in an phone obtain attempt marijuana. Eventually, they went to remote area of Fairfield known undeveloped as Bay, Rocks,” “the and waited for of the delivery marijuana. truck,
All three men were in the sitting Grillot the driver’s seat, seat, in the front and in the back passenger Phillips Jackson seat behind when Jackson, .44 caliber to the Phillips put pistol him, back of head and shot him killing instantly. Jackson’s evidence is as to whether Grillot was disputed awake the time of Nonetheless, shot, after shooting. was Grillot drove Jackson the truck a short distance to some trees remove helped Phillips it into the body drag woods. some blood Phillips wiped seat, off the back of the and then Grillot drove to his Phillips mother’s house and him off before back to Ala- dropped heading bama in truck. Jackson’s Alabama,
When he reached Grillot abandoned the truck at a and walked storage facility home. He made a call to his phone to let them parents know he had made it back to Alabama safely Later, and then went to work. he threw the to the truck and keys wallet into a canal. The next nearby father day, Jackson’s Jackson’s called and asked if Grillot had seen Grillot told him that Jackson. last time saw before he went to just work after Jackson the two of them had returned to Alabama. Grillot also told Jack- son’s father that had Florida, received a offer so he job Jackson 20, 1998, have there. On might gone father February Jackson’s filed a missing with the person’s Baldwin report Sheriff’s County Office in Alabama. was found by truck abandoned after Subsequently, Jackson’s officers, in for was called ques- Grillot enforcement
Alabama law time, with the he told At that deputy March 1998. on tioning he had with Sheriffs Office gone Baldwin County Jackson Arkansas, seen since they and had not inoff drop Phillips Jackson later, back to Grillot moved time Alabama. A short returned to live with his Arkansas to parents. 10, 1998, Office the Van Burén Sheriffs County
On March of the missing receipt Grillot and following Phillips questioned as the last two and Phillips peo- that listed Grillot person’s report told the Van Burén investigators seen with ple Jackson. s in Bald- to the Sheriff Office he had told same story previously 13, 1998, Then, body March win Alabama. County, Jackson’s *8 it in the woods. had left where and was found Grillot Phillips to the Van and and were transported Grillot Phillips picked up It at for was further questioning. Burén Sheriff’s Office County rid of the body get that admitted Phillips Grillot helping point However, he denied knowing any- murder. evidence of the and He stated that was to kill about thing Phillips’s plan Jackson. was shot. the truck at the time in the driver’s seat of asleep Jackson Grillot, that he had been hired had told him to Phillips According Moreover, to Grillot claimed agreed give to kill Phillips Jackson. $3,000 trouble.” him “for his His to story, himself confessed shooting Phillips Jackson. Grillot timе, said that with version. Phillips Grillot’s aligned subse- contract. Phillips did not know about murder-for-hire and was sentenced first-degree guilty quently pleaded to life imprisonment. with hindering apprehension, Grillot
Initially, charged However, Phillips and theft of robbery, property. aggravated Grillot knew about and told the his story police changed and com- with its contract and helped planning murder-for-hire him to take had for agreed they mission. According Phillips, him, he fall, bad about because things but Grillot began saying result, filed As the information against decided tell the truth. a murder. count of Grillot was amended include capital-felony 23, to trial on 2000. On August August Grillot’s case went selection, 24, dis- dire and one juror voir following contact with Grillot’s that he had come into closed to the court sister after she overheard him talk with his wife about the case. The court to conduct an in camera and the proceeded hearing, State moved to have the removed for cause. Grillot juror objected motion, to the State’s and the circuit court ruled the State. against trial, At the of conclusion Grillot was convicted three-day murder, theft of aggravated robbery, property, total, He was sentenced to a hindering apprehension. of twenty years’ convictions imprisonment. Arkan- appealed sas Court which then certified the Appeals, case to this court. We certification and now affirm the accepted convictions.
I. the Evidence Sufficiencyof Preservation of Grillot’s double right against jeop that we ardy requires consider his to the challenge sufficiency the evidence before we consider trial error even alleged though the issue was not as the first issue on presented Davis v. appeal. In order to contest the of the evidence to sufficiency conviction on support appeal, defendant must move directed verdict at the close of the at the prosecution close of all the again evidence. Ark. R. P. Crim. 33.1(a) (2002); Doss v. Moreover,
413 (2003).
defendant,
we have made it clear that a
verdict,
his motions for directed
making
must
anticipate
instruction
lesser-included offenses and
address
specifically
*9
elements of that lesser-included offense on which he wishes to
the
State’s
in his
challenge
motion. Brown
proof
308,
At the close of the State’s Grillot made the fol- lowing argument: moves fоr directed verdict as to Count Capital [D]efense basis, Murder. On that the Judge, evidence is clear that there is no that underlying felony has been in this case. . . proven Jeremy . he did Phillips it for premeditation, that he basically [testified] did it for hire. . .. State would have to show that Eric [T]he anis There accomplice. is no testimony whatsoever that
shows Eric Grillot is an accomplice in that--- Jeremy Phillips - when he committed those murders. The statements and testi- own, is that mony basically Jeremy did this Phillips on his that Eric anything murder, Grillot did was the basically cover up was under the aid, murder which assist in the abet or not to So, verdict on ask for a directed we would theory. accomplice murder charge. the capital evidence, for a Then, the Grillot moved of all at the conclusion directed verdict stating: clear . . evidence is murder[,] . to count capital [t]he [A]s the trigger who person pulled was the Phillips that Jeremy That fact is uncontroverted. Will the who shot person Jackson. can be murder guilty capital that Mr. Grillot way
The only
that he aided and
accomplice;
to be an
be if he is found
would
that
evidence that indicates
only
and the
abetted in
planning
. .
statement. . Which
Jeremy Phillips’
have been true is
may
that
cor-
his
has to be
The law is that
statement
is uncorroborated.
evidence,
evidence,
to indicate
with some
independent
roborated
end of the
the court said ... at the
will be true. As
the charges
Court could find would
evidence the
case[,]
only
State’s
evidence was suffi-
evidence but felt circumstantial
circumstantial
is
sufficient
evidence
to the
Circumstantial
jury.
cient
go
Grillot was an
to make a
that Eric
finding
uncorroborated
is that the State is amend-
. . . [M]y understanding
accomplice.
Well,
is that
testimony
hire.
to add murder for
charge
ing
Jeremy
an act with
Phillips
the murder for hire was---was
shooter,
do that. His
testimony
that he was hired to
testified
It
testimony.
is
accomplice
Eric did not
plan. Again,
of that is what
evidence we have
only
uncorroborated.
Jer-
move for a
as
I
capital
charge
So
Phillips says.
emy
charge.
verdict on that
directed
matter,
that the motion for
the State contends
As a threshold
is insufficient to
suffi-
directed verdict
above
preserve
quoted
murder conviction because
ciency challenge
murder charge
addressed
only
directed-verdict motion
offenses. We agrеe.
and not the lesser-included
that,
held
in order to
challenges
This court has
preserve
convictions for
the evidence
to the
sufficiency
supporting
offenses,
address the lesser-
defendants must
lesser-included
court
the trial
either
name or by
included offenses
by
apprising
their
offenses
the elements of the lesser-included
questioned
directed verdict.
motions for
Haynes
*10
the sufficiency
that
336 (2001) (concluding
challenge
S.W.3d
conviction was
murder
first-degree
of
evidence
support
with
when the defendant
charged
capital
barred
procedurally
and failed to move
murder
for directed verdict on the
specifically
lesser-included offense of
see also
murder);
Ramaker v.
first-degree
In the instant Grillot failed to move for a directed verdict on lesser-included offense of murder. Not first-degree did he fail to address the lesser-included offense of only first- name; but, he also failed to address the elements degree of the lesser-included offense as from the of elements distinguished to the dissent’s assertion that capital-murder charge. Contrary “there was no distinction between murder and capital consider,” murder for this court to the elеments that the State had in order to obtain a conviction either offense were prove different. The instructions that given demonstrate issue elements at in this case were not identical. capital-mur der and the instruction instruction first-degree-murder given read, trial in relevant as follows: part, Eric Grillot is charged the offense of accomplice [as an] murder. To sustain . . capital . this the State must charge, prove First, beyond reasonable doubt. that following things Eric Grillot or an entered into an accomplice that agreement they
would cause the death of another in return for of person anything second, value. And to that pursuant agreement, they caused the death of William Or . . . with premeditated Jackson. deliberated the death of purpose causing any Eric person, Grillot or an caused the death of accomplice William Jackson.
[**] * * If have a you reasonable doubt of the defendant’s guilt murder, you then will consider the of first charge degree murder. sustain To the State must charge, prove follow- ing things beyond reasonable doubt. That with the purpose causing Jackson, death of William Eric Grillot or an accom- caused the death of William plice Jackson.
Thus, motion, his directed-verdict making Grillot was required to set forth the elements.1 See differing Jenkins 1 Under the dissent’s on this the issue of of the evidence analysis point, sufficiency a conviction of lesser-included offense would be a directed- support any preserved by nothing verdict motion that addresses more than an element common to the crime both charged and the lesser-included offenses.
306 878 (2002); S.W.3d Walker Brown v. supra; 831 (1994). following before disclosure made be noted that the It should prosecutor
trial started: intends to bill of State rely Counsel: particulars] says
Defense [The saying in addition that murder rule. Are you felony relying murder that there was on the statute are capital you in the furtherance of the that committed felony felony was killed? Will Jackson hire and that it was a murder for It is our separate Prosecutor: position that, but not from that or rather addition to and apart —it is it that, was upon premeditated dependent under .... There is a number of sub-sections deliberate murder statute. capital is hire. I that. One of them murder for understand Counsel: Defense them would of them is one of murder, One felony Prosecutor: сapital might murder for hire and the other be be premeditated be able be deliberated. All three of those may charged this We’ve it as case. capital felony proved being underlying aggravated with murder robbery offense. charged. That’s what you’ve Defense Counsel: changes, extent then there To the may Prosecutor: proof for on one of different sub- some basis reliance those proceeding the State on the But sections. point murder. felony case-in-chief, verdict at the close of the State’s Before Grillot moved for directed his earlier pleadings to amend the to conform to the and reiterated moved proof prosecutor charge: regarding the of the statement scope capital just just rest to I want to make reflect, I want to before we Prosecutor: morning mention, that what we did when yesterday asking was bill of sort of particular-type questions? Ralph going we what we were under? And told About section . . for hire. . him and deliberate and murder premeditated pleadings just I want to move to amend to conform what we him before the for told yesterday .... empaneled grant the I motion. Court: Thank you. Prosecutor:
Nonetheless, Grillot
asserts that because
denied any
murder,
and all
he did not believe a lesser-
liability
*12
basis,
included instruction would be
On
warranted.
he con
was no need to address the
tends there
lesser-included offenses in
his directed-verdict motions. This
is without merit for
argument
the reasons stated later in this
when we address Grillot’s
opinion
asserted
of error
instructions. As noted
point
regarding jury
by
defendant,
State,
in Brown
court
v.
a
supra,
making
verdict,
motion for directed
must
an instruction on
anticipate
308,
lesser-included offenses. 347 Ark.
our case law are clear. As in order to already preserve evidence, based on the of argument a sufficiency defendant must move for a directed verdict with at the of close specificity State’s case-in-chief and at the close of all the again evidence. Ark. Crim. State, R. P. v. 33.1(a); Haynes we supra. Additionally, have held that murder is a consistently lesser-included State, offense murder. premeditated McFarland 337 capital Ark. S.W.2d 899 (1999); Allen Bell v. Ark. (1992); A mere belief that instruction on a lesser- included offense should not be submitted does obviate the defendant’s to move for a directed verdict with duty specificity.
Grillot also challenges of the sufficiency evidence sup- his convictions for porting and theft aggravated robbery of prop- Defense I Judge, Counsel: As understand the motion, now before the Court, ruling is the State has amended their felony information murder it is murder for hire. capital say No, Prosecutor: ask us morning about what sub-section you yesterday going we were under? Under murder? And we capital told and deliberate to kill you premeditated purpose someone and murder hire. all. That’s So only charge. amendment is to the murder Based between the and defense it counsel, above-quoted colloquies prosecutor clear charge that the State amended its murder before the close of case-in- its capital-felony chief and before Grillot moved for a amended, directed verdict. As the State’s capital charge murder, included murder, and murder- capital-felony premeditated capital 5-10-101(a)(l), (4), 1997). for-hire. See Ark. (7) (Repl. Code Ann. §§ no he intended to there was evidence
erty, contending A commits person aggravated the owner of any deprive property. he is armеd with deadly if he commits robbery robbery armed, or that he is word or conduct so or represents weapon to inflict death or serious injury he or physical inflicts attempts 1997). Ann. Ark. Code 5-12-103 (Repl. another person. upon § if, of committing commits with robbery A purpose person immedi- theft or or misdemeanor resisting apprehension felony thereafter, or threatens to employ immediately ately employs 5-12-102 another. Ark. Code Ann. (Repl. force physical upon § if he theft of “[k]nowingly A commits 1997). property person over the of another unlawful control takes or exercises property thereof.” Code the owner with depriving person purpose 1997). Ann. 5-36-103(a)(l) Deprivation property (Repl. § *13 make “under its restora- the circumstances requires disposal 1997). 5-36-101(4)(C) tion Ark. Code Ann. unlikely.” (Repl. § case, after In took from money Phillips Jackson addition, aban him. In Grillot took truck and killing Jackson’s Then, he the the truck doned it in another state. threw keys acts in the of Mexico. All these wallet Gulf Jackson’s was From from event where a used. stemmed deadly weapon facts, infer that neither the truck nor a could these reasonably estate. the were to be restored to or his wallet likely Jackson, evidence we conclude there was sufficient to support Accordingly, the convictions. robbery theft-of-property aggravated
II. Motion Suppress forth In his first on Grillot sets several argu- point appeal, First, he ments to the voluntariness of his confession. relating not vol- that the waiver of his Fifth Amendment rights argues Next, because he was under the influence of drugs. untary and, arrested, thus, should maintains he his confession was illegally as fruit of the tree. Lastly, have been poisonous suppressed tenor contends that when the nature and of an interview change, Mirandized, be who been must re-Mirandized. has already suspect the these circuit court Based on Grillot maintains arguments, in motion to his confession. erred suppress denying
309
For
Grillot relies
on the deci
authority,
solely
Arizona,
the
sions of
United States
Court in Miranda v.
Supreme
States,
This court has also two other standards of review in applied cases of custodial statements. We have involving suppression stated: recently a trial reviewing ruling a motion to judge’s we suppress,
make an independent determination based
upon
totality
circumstances,
the evidence in a
viewing
light most
favorable
the State
and we
[appellee],
reverse
if
only
ruling
clearly
against
preponderance of the evidence.
686, 701-02,
190 (2002)
Jenkins
*14
State,
552,
Howell v.
Ark.
added);
350
89
(emphasis
S.W.3d 343
State,
147,
v.
Fairchild
(2002);
349 Ark.
310 of a confession. cases3 to the voluntariness
search-and-seizure 514, State, 87 Russell (1990) (citing v. 303 Ark. 798 S.W.2d Moore 619, State, see also Taborv. 751 334 (1988)); v. Ark. S.W.2d 295 429, Norman v. State, 227 333 971 S.W.2d (1998)(citing Ark. 210, State, 96 (1996)). 326 Ark. 931 S.W.2d different standard for оf cases sets out a Another line slightly of a defendant’s motion review a trial court’s denial sup- of a confession: press based upon totality
We make an determination independent circumstances, resolved in favor of individ- of with all doubts ual and safeguards. rights 508, State, State, 477 Davis v.
Bisbeev.
341 Ark.
17 S.W.3d
(2000);
State,
264,
261
I);
Ark.
1
Giles v.
(Davis
275
630 S.W.2d
(1982)
State,
492,
413,
479
v.
262 Ark.
Ark.
549 S.W.2d
Sutton
(1977);
State,
631, 501 S.W.2d
Watsonv.
A statement made
custody
presump
and the
is on the
aby
burden
State
tively involuntary,
prove
that a
statement was
of the evidence
custodial
preponderance
3 We
clarified our standard of review for determination of reasonable
have recently
alleged
searches
to be in violation of
or
cause as
relate to warrantless
they
probable
suspicion
die Fourth Amendment
to the United States Constitution. See Davis
(2003)(citing
States,
517 U.S.
Here, it is that Grillot was in at the time undisputed custody Moreover, he confessed. it is that he a form signed undisputed reflects and waiver his of Miranda acknowledgment rights, his statement and answer agreement give questions. was statement and later transcribed. two and taped Approximately one-half hours he from time elapsed waiver until signed the time he finished his statement. giving
A. Intoxication it Grillot asserts is reasonable to infer was under the influence of at marijuana the time he Form” signed “Rights his Miranda waiving to the of rights. According his transcript statement, took near the end of following colloquy place interview: 1: Are now or you high right you straight?
Officer as hell. Sober Grillot: 2: You haven’t or smoked drank today? anything
Officer Yes, I have I today right before come in here. Grillot: 2: What time? you But are not high now? Officer man, no, Grillot: No I wasn’t thirty or high forty-five minutes ago. Well, 3: let’sjust do it this do you feel like way, you Officer are impaired? No, Grillot: no.
When an claims that his appellant confession rendered of because or involuntary alcohol drug consumption, level his of is a factual matter comprehension resolved trial court. S.W.3d 536 Jones the voluntariness one who claims testing intoxication time statement, waiving rights this court making determines whether the individual ofwas sufficient mental capac — to know what he was ity the mean- saying capable realizing
312 — from not and that he was suffering any of his statement ing Id. or delusions. hallucinations did case, claim that he not makes no
In the instant Grillot he was unable to under mental or that have sufficient capacity, Moreover, there is no evi of statement. the his stand meaning hallucinations or delusions. he was from dence that suffering any interview, fact, the Grillot detailed the the of In first during part and law had told father he same story previously Jackson’s and Arkansas. officers in both Alabama Additionally, enforcement the officers. asked he fielded investigating cogently questions such a account able to relate detailed The fact that Grillot was mental disabilities. that he was not from suffering any indicates is See, (“[I]t Ark. 42 S.W.3d at e.g., Jones that the accused voluntariness making finding significant mental indications of or disa answered without physical questions see also bilities.”); Riggs factor is a legitimate (1999) (“Rational response questioning consider.”). the trial court to here does not indicate that Grillot was
The record he did realize the under influence of such that drugs confession, Prior Grillot had of his statement. meaning officers, and he waived his been interviewed twice by police Miranda on both occasions. Additionally, transcript rights Based that he was lucid. Griflot’s confession reveals completely evidence, circuit court’s of the we cannot our review say of the evidence. is ruling clearly against preponderance B. Arrest Illegal lured that because he was to the station on Grillot also alleges few his arrest just answering follow-up questions, pretext the statement should be was and therefore illegal, pretextual, tree. For cites as fruit of the authority, poisonous suppressed In 45 (1990). State v. Shep- Shepherd, into a defen- herd, used an entrance illegal subpoena gain police view.” Id. where then seized evidence dant’s house they “plain abused its The trial court ruled that prosecutor subpoena Id. evidence. The because the real gather objective power we Id. affirmed. evidence was suppressed Here, case sheriffs Shepherd inapposite. did when asked Grillot to answer nothing illegal they deputies fact, some death. follow-up questions concerning Jackson’s concedes he went sheriff s office to voluntarily *17 the death of answer about William questions Upon being Jackson. he custodial was entitled to the interrogation, Miranda subjected earlier, Arizona, v. noted See Miranda As warnings. supra. informed of
was his Miranda and waived them. rights
C. Ne-Mirandization Grillot’s the voluntariness principal argument concerning his confession deals with the When concept “re-Mirandizing.” first the Grillot told a rendi- reported missing, рolice Jackson tion of events that Alabama. sheriffs placed depu- Jackson area, ties later found in the Fairfield body which Bay Jackson’s and, indicated that had never returned to Alabama there- Jackson fore, Grillot was Officers lying. Grillot to sheriffs transported office to answer about death. Grillot started questions Jackson’s Then, out officers the same he had told earlier. telhng story officers told Grillot knew was because interviewing they lying had found the victim’s they body. Grillot, moment this
According
change
occurred,
is,
the interview’s focus and nature
that
when the
officers asked him “do
want to start
you
should have
again,” they
Moreover,
m-Mirandized him.
he asserts the Miranda warnings
States,
line” test for officers.
provide
“bright
Dickersonv. United
U.S.
This court
the Miranda
(2000).
soon
applied
ruling
after it was announced
Court,
the United States
by
Supreme
on, we held that a
early
need not be rt-Mirandized
suspect
during
See,
State,
continuous
Sossamonv.
interrogation.
e.g.,
306,
station and give first, At following two statements. Id. gave questioning of or the defendant disavowed any knowledge Miranda warnings, Later, he was told Id. after in the murder. complicity scene, he to the the crime confessed friend him at had placed lasted two Id. That interview process approximately murder. hours. Id. case, court concluded
In the Upton to that from that of a witness voluntary status defendant’s changed Nonetheless, Miranda we held that initial Id. suspect. Fifth vio there was no Amendment were sufficient and warnings noted that a statement this court first lation. Id. so holding, from the Miranda warnings after a hiatus two-day made voluntarily also a decision Id. We relied was constitutional. upon similar facts and of Connecticut involving quoted Court Supreme *18 with language following approval: must be made later than that Miranda no requires The disclosure into When the custody. time when an accused taken faith good precustodial investigation are police conducting in difficulty determining have they may police headquarters, interroga- moment turns into custodial precise when questioning the uncertain Miranda are warnings Although tion and required. and does not interrogation line between custodial questioning late it does for provide justification validity excuse warnings, are to warnings sufficiendy faith which early proximate good to the alert the custody person being questioned formal of these constitutional rights. importance 247-49, A.2d 195 Conn. Id. State (quoting Burge, case, where It therefore that in instant follows (1985)). and one-half hours and the interview lasted two approximately time, initial Miranda warnings took without break place sufficient. were False
D. Promise his con- to contend that In a related argument appears he statements. fession was induced the officer’s Specifically, states, intended the rely upon clearly Appellant police “[t]he forward in their about his Miranda false statement rights go involvement in the He murder.” then “the confessing suggests clear of Miranda and Dickerson is spirit they import may not he about the Miranda meaning Grillot’s suspect’s rights.” stems from the that took dur- argument following colloquy place the interview: ing He said he
Grillot: it. for got paid it? paid Officer: Got Said Yeah. wanted him dead. somebody
Grillot: Did Officer: who or say why? I don’t Somebody know. wanted Will dead and
Grillot: he was for it. gettin’ paid you Officer: Do believe him? know, he’s, I don’t I I don’t believe him. think I
Grillot: —I don’t know. I’m just asking your as far as do you Officer: opinion why think did it? [Phillips] not here Grillot: [Phillips f***^’ listening every is] Iword is he? say, Officer: Sir. No
Grillot: Is going court? played No, won’t. ask Officer: tape They you tes might But we’re tify. just now. . . .5 talking right Grillot maintains the above statement effectually abrogated earlier Miranda because the officers lied about the effect warnings of the Miranda waiver. More he contends his confes- particularly, sion was because the Miranda involuntary advise an warnings *19 court, accused that a confession can be used in while the officer told him the would not be in court. tape played
For a statement
to be
the confession
involuntary,
have
must
been induced or influenced
the
officer’s state
by
police
State,
508,
Bisbee v.
ments.
316 context, it taken Additionally, appears
cured the statement. by hear- concerned about Phillips Grillot was only possibility above, we for the reasons stated his confession. Accordingly, ing to of Grillot’s motion the circuit court’s denial cannot say was against his custodial statements clearly preponder- suppress ance of the evidence.
III. Misconduct Juror erred in is that the circuit court third Grillot’s argument misconduct. new trial based juror his motion for a upon denying wife and Patterson called his selected as a Upon being juror, John the tele- sister overheard the case with her. Grillot’s discussed the case. talked with Patterson about conversation and phone attention, was to court’s This information whereupon brought the matter. The held an in hearing investigate court camera from the Grillot that Mr. Patterson removed State asked jury. contact minimal and he would that the was objected, arguing value.” “take at face Patterson] [Mr. that a
This
without merit. We have held
point
relief to which he
cannot
on
about
agreed
complain
appeal
party
State,
v.
Ark.
IV. ClosingArguments
claims the
court
For
fourth
circuit
point,
various
erred in
to allow defense counsel
refusing
explain
Without
standards during
argument.
closing
burden-of-proof
he asserts that a criminal defendant has
citation to authority,
contrast
various standards of
right
proof
compare
We have stated on numerous occa
ensure a
understanding.
jury’s
will
that are
sions that we
not consider
arguments
supported
it is not
or
citation
authority
convincing argument,
taken.
research that the
is well
without further
argument
apparent
See
Wooten
(2002);
S.W.3d
Kelly
317 Furthermore, not Grillot’s is argument persuasive. The trial court is broad discretion to control counsel in clos given and we will not interfere with that discretion ing arguments, State, 92, of v. absent manifest abuse discretion. Smith 352 Ark. State, v. Leaks S.W.3d 448 (2003); It is the trial to maintain court’s control of the trial (1999). duty and to counsel from Smith prohibit making arguments. improper State, supra.
At issue is the to defense coun prosecutor’s objection sel’s use of a chart the various burden- illustrating comparing standards used the law. The circuit court allowed of-proof Grillot to use but the chart ruled that “he refer may any burden of other than a reasonable doubt’ proof ‘beyond standard in case.” we conclude that the making ruling, court circuit confused properly guarded against jury becoming other standards that are in crimi burden-of-proof inapplicable Indeed, nal cases. the circuit court burden of explained proper Therefore, to the we conclude no manifest abuse proof jury. discretion has been demonstrated.
V. Instructions Jury In his final Grillot point makes a appeal, attack two-prong on the instructions to the He given contends that the model jury. instruction for jury murder contains an incorrect statement capital law, of the and that it was error for the circuit court to instruct the on lesser-included jury offenses. This is also without merit. point Instruction
Cаpital-MurderJury that the argues model instruction for jury murder (AMI Crim. 2d capital 1001) states law. erroneously Yet, Grillot was murder when the acquitted found jury him murder as a guilty lesser-included offense. This court has held that it will not reverse and repeatedly remand for a new trial in the absence of v.Hill 318 Ark. prejudice. Indeed, verdict renders an instructional
error harmless when the finds on the issue against appellees involved in Brown, the instruction. Cates S.W.2d 658 (1983). An erroneous instruction is harmless when the of the jury rejects instruction. Sasserv. theory *21 318 318, State, 93
375, v. 326 Ark. 901 Hall (citing S.W.2d (1999) 993 Here, of the jury charge capital 363 (1996)). rejected S.W.2d harmless. Thus, that instruction is from murder. error any resulting Instructionson Lesser-included Jury Offenses As all for murder. denied and capital any liability on such, should not have been instructed that the he argues jury draws of murder. Grillot offense lesser-included a that it erroneous instruct jury a case law is on of stating body defen- it with the a offense when is inconsistent on lesser-included an offense. of all for liability dant’s denial any offense instruction on a lesser-included is An appropriate State, Britt v. even evidence. when it is slightest supported 13, 363 An instruction should (2001). only 38 S.W.3d Id. A no rational basis for it. be excluded when there is giving will to submit a instruction trial on whether jury cоurt’s ruling State, 344 abuse of Hill v. not be reversed absent an discretion. Ark. 751 (2001). S.W.3d reversal, our Grillot relies
In upon support point S.W.2d 694 (1986). decision in Doby case, of a con- In that the defendant was with charged possession deliver, he ever intent to denied trolled substance with pos- arrested, that, Id. testified after he was Officers sessing any drugs. Thus, the defendant defendant confessed to having drugs. that of the rested entire on his against defense credibility that, officers, matter, as it came down to whom such a practical (cid:127)— Id. We the officers or the defendant. should believe jury a lesser- the trial refusal to an instruction on give affirmed court’s so included offense testimony sharply stating, “[the officers’s] that it would not be reasonable to conflicted with Doby’s expect of a lesser and choose and come with finding jury up pick a liar to do was offense when so would require finding Doby liars Id. court and the officers in The Doby part.” explained occurred, be no defendant act there where the denies any may See offense. rational basis for instruction a lesser-included 699 Flurry reliance on our decision
Grillot’s Doby misplaced. Here, would not conflict in a manner that did testimоny to conclude Grillot was either require jury guilty or all. did He the act of murder nothing deny rather, occurred; he denied that had the mental state. requisite contrast, was asked decide jury whether or not a Doby to. — Here, act occurred the act of mur- specific possession drugs. conceded, der was and the to decide whether required *22 Grillot acted purposely.
Also, Grillot was under a of lia- charged theory accomplice law, Under Arkansas a is an of another bility. person accomplice if, in the commission of an offense with the of person purpose offense, or the of commission an facilitating he: promoting Solicits,advises, (1) or encourages, coerces the other to person it; or commit Aids, aid, (2) to or to aid agrees the other in attempts person or it. planning committing Ark. Code Ann. 5-2-403 1997). A (Repl. commits person § in the first murder if with a of the death degree of purpose causing he another causes the death of another Code person, Ark. person. Ann. 5-10-101 A 1997). acts with (Repl. person purposely § to his conduct or a result thereof when it is his respect conscious to in conduct of that nature or to object cause such а engage result. Ark. Code Ann. 5-2-202(1) 1997). (Repl. § earlier,
As a stated charge includes the lesser-included offense of murder. first-degree See McFarlandv. Thus, the in case supra. question this is whether presented there was a rational to an basis instruction on support first-degree murder based More there upon accomplice liability. specifically, need be some evidence at trial that only could a presented support the that finding by Grillot or facilitated purposely promoted the murder.6
6 The dissent notes that the issue of whether the State is entitled to an instruction on
a lesser-included
1997)
offense
to Ark.
(R.epl.
Code Ann.
5-1-110
been
has
left
pursuant
§
urges
unresolved, and
to
court
resolve the issue here. See State v.
We
case,
in Cook
the defen
defendant is an
where
accomplice
that criminal
we said
to the
aid or encouragement
principal
renders the
dant
requisite
issue,
the fact
the offense
irrespective
with
regard
Furthermore, a
the murder. Id.
commit
defendant did not directly
and
if
assisted
actively
liable as
defendant
accomplice
may
Moreover,
Id.
when two
assist
the crime.
persons
participated
crime,
each is an accomplice
the commission of
one another in
of both. Id. A
can
conduct
liable
participant
criminally
take
because he did
personally
part
not disclaim responsibility
as a
Id.
to make
the crime
whole.
act that went
every
up
case,
in this
evidence
According
undisputed
who had
Grillot
there was an initial
between
Phillips,
plan
childhood,
to set
transaction in
each other since
up drug
known
dealer.
drove
and then rob the
Fairfield Bay
Jackson’s
he admitted
More
truck from Alabama Arkansas.
importantly,
the murder
truck to
remote location where
driving
*23
shot and killed
is not
that
Jackson,
took
It
disputed
Phillips
place.
and
then
of the victim’s
and
Grillot
dispose
body
property.
helped
that
was in on a
indicates
Grillot
testimony
some
Additionally,
he
to be
to
for a fee because
paid
scheme murder
expected
Jackson
Moreover,
officers first
when law enforcement
“for
trouble.”
lied about the
Grillot
began investigating
disappearance,
Jackson’s
the scene of the crime.
victim’s whereabouts.
he fled
We
Finally,
to
arrest
often
that evidence of
avoid
bemay
have
stated
flight
State,
v.
as
Williams
considered
corroborative
jury
guilt.
State,
728,
Flowers
342 Ark.
v.
(2002);
instruction,
the issue
the issue is not one of
but
sufficiency,
Britt
evidence
instruction.
is whether the
supports
slightest
There is
evi
Thornton part. J.,
Corbin, participating. Hannah, Justice, concurring part dissenting I must I dissent. with the hold- part. respectfully disagree Jim that the failure to move for dirеcted verdict on ing first-degree consideration of the issue of of the precludes sufficiency evidence in this case. Grillot did not move for a directed verdict murder; rather, on and deliberation under premeditation capital moved for a directed verdict aon lack of substantial evidence of The elements of do not accomplice liability. accomplice liability differ between Therefore, murder and murder. the trial all court had the issues before it in the directed-verdict motion, and the issue of of the evidence is sufficiency properly before this court.
Further, I do not criminal agree defendant is required what the State anticipate seek to submit to charges may A criminal defendant cannot jury. reasonably expected move for a directed verdict until he or she is made aware of the to be submitted to the charges we need not jury. Additionally, discuss Grillot’s that model instruction argument jury capi- tal murder states the law because the issue erroneously is moot. Also, I that this court has disagree addressed the issue of previously the nature and extent of the State’s and receive right request instructions.
Directed Verdict *24 The refuses tо hear Grillot’s majority from the denial of appeal his directed-verdict motion because Grillot all although presented to facts the trial necessary court for the decision on directed-verdict motion, he failed to include the words “first specific mur- degree der.” Grillot moved for a Admittedly, directed verdict “as to Count Murder” and was convicted the Capital of lesser-included offense of However, murder. it is first-degree obvious from the motion that Grillot was that there was no evidence of asserting his as an liability heIf was not an to accomplice. murder he accomplice could capital This court tradition- murder. to be an first-degree not accomplice words.” See has “magic Mayfield not required ally the To that is no case. It longer 12 (1987). appears S.W.2d this is to issue in case the to hear sufficiency-of-the-evidence refuse over substance. exalt form rule that a criminal to the the
Contrary majority opinion, the a directed verdict not only must move for defendant lesser-included offenses is simply but also on crime charged motion for directed verdict in case.1 Grillot’s applicable of accom of the evidence the issue of sufficiency raised properly court, the the issue of of sufficiency in trial the liability plice this court. is now before liability properly evidence of accomplice liability. this case was based on in liability accomplice Grillot’s the committed murder. never an issue of who actually There was the murder. confessed Phillips motion that there was directed-verdict his argued of to submit the issue evidence of
insufficient
accomplice liability
court denied
an
to the
The trial
as
accomplice
jury.
liability
motion,
asks this court to determine
and Grillot now
the
properly
the motion.
trial court erred in denying
whether the
directed-verdict motion
The record is clear that Grillot’s
There is
lack
evidence to
liability.
based on a
prove accomplice
as
accom-
distinction between the
liability
no
requirements
murder. All
murder as
first-degree
capital
opposed
plice
be aware of were raised
elements the trial court needed to
either the offenses or
is sufficient where
motion. The motion
contained in the motion. Ramaker v.
elements are
required
519 (2001).
motion must also address
The rule that the directed-verdict
that the trial
based on a
lesser-included offenses is
requirement
deficiencies in the case so that
court
alleged
apprised
stating
I assert
is no
majority
of this dissent
there
The
misses
point
in this case. That
murder and
between
only
distinction
partially
capital
majority
recognize that the elements of
fails to
characterizes
dissent.
accomplice
my
first-degree murder, and
charge is
murder or
are the same whether the
liability
charge
deciding
issue
as
one
the trial court in
therefore,
liability
accomplice
requiring Grillot
as to
other.
the court is
Thus,
decided
issue
parrot
necessarily
putting
form over substance.
magic
to no
words
purpose,
*25
directed-verdict motion
either
or
be
the case
may
granted
the
be
if
so
offered. Walker
necessary
reopened
missing proof may
(1994). When
trial
verdict,
court ruled on Grillot’s motion for directed
the suffi-
of the evidence as to the elements of
to
ciency
accomplice liability
murder and the elements of
for first-
capital
accomplice liability
murder were
tested. The trial court was
degree
being
given
to rule on the
of the evidence
opportunity
as
sufficiency
elements of
To
the trial
liability.
court
rule
accomplice
require
on a
for
motion
directed verdict as to the lesser- included offense
in
this case is to
vain and useless act. This we will
require
not
do. Box v.
Where intent is at for directed verdict on moving murder due to a lack of capital evidence of premeditation deliberation, but not for a directed verdict on intent moving murder, under means the trial purpose required first-degree court is never with the issue of whether the presented State presented lesser intent murder. adequate proof required first-degree While the ain case be not to show proof given might adequate murder, and deliberation for premeditation it required capital be to show as might adequate purpose required murder. Because the trial court must allowed consider lower offenses, intent lesser-included this court has that a required directed verdict motion also to include lesser-included speak Walker, offenses. supra. case, however,
Under the facts of this the trial court was with all the issues it could decide on the directed-verdict presented motion and the issue of accomplice liability, sufficiency evidence is before this court. Grillot was properly with charged murder as an tried his case on the accomplice theory that he involved in the murder in He any way. alleged lack of evidence of intent of Intent with accomplice liability. to the murder was respect not relevant to his motion based on One is an to an accomplice liability. offense committed accomplice another if one “with the by or purpose promoting facilitating commission of an offense” commits one of enumerated acts such as or Ark. Code Ann. 5-2-403 aiding encouraging. 1997). (Repl. § Grillot either acted with and facilitate Will’s purpose promote case, or he was not an there Phillips, accomplice.
324
murder
murder
between
first-degree
was no distinction
had included
even if Grillot
first-degree
to consider
for the court
motion.
in his directed-verdict
murder
for not
Grillot is now
also curious that
being penalized
It is
offense before
on a lesser-included
for directed verdict
moving
the instruction was
court even decided whether
applica-
the triál
an
refused had he later sоught
have been
ble.
would
Grillot
because it was
Gril-
on
contrary
instruction
v.
that he was not
of the case
accomplice. Doby
lot’s theory
408,
State,
. I note there is something disquiet must also profoundly criminal defendant to “anticipate” a rule that about ing requires be as is currently required the issues that may jury presented State, 308, Brownv. 347 Ark. 65 on directed-verdict motions. See was not aware 394 (2001). specifically S.W.3d Naturally, be to the until trial instructions would submitted jury of what after the close of evi court made the decision instructions must occur renewal of the motion for directed verdict dence. The State, 464, 95 before the is v. 351 Cathey jury charged. 280, State, 348 Ark. 72 S.W.3d (2003); S.W.3d 753 Robinson State, 412, 977 (1998); Willisv. 334 Ark. S.W.2d 890 (2002); 827 State, 379, 948 S.W.2d Webbv. (1997); Rankin v. 329 Ark. State, Claiborne (1996); 326 Ark. 935 S.W.2d Marshall v. (1995); Walker, and its appear progeny what that the criminal defendant correctly jury guess require later Aside from not much instructions be given. making may sense, Marshall, is in direct conflict with supra, requirement decision, that the cases follow that which and the require before the is directed-verdict motion brought charged. be clarified. The Marshallline cases appears These cases should with to when the directed-verdict to state the law correctly respect made, line cases not. must be and the Walker does motion to hear line that this court has refused Grillot’s The bottom with the that has do based on nothing technicality appeal defendant must The rule that a criminal administration of justice. is not a directed verdict on lesser-included offenses being move for Grillot waived his to hear Grillot’s because used in refusing appeal or because he failed to all the issues right appeal, bring court, rather, before the trial but we hide behind a techni- today issue, to avoid our to avoid cality doing job, and to reaching rules, avoid Grillot the review that our giving case appellate law, and common sense declare that he should receive.
AccompliceLiability *27 The basis of Grillot’s criminal is unclear in the liability It that Grillot be held majority opinion. may liable for the appears murder of Will both on the basis of as well as direct accomplice criminal was liability. Only The accomplice liability alleged. states, conceded, “Here the act of murder was and majority the to decide whether jury Grillot acted It required purposely.” is not clear whether the here the “purpose” required by majority is with to commission of the “purpose” respect murder or “pur- with and pose” the respect facilitating murder promoting under murder accomplice liability. First-degree requires pur- intent, as does poseful accomplice liability.
The was instructed that to sustain the jury of first- charge murder, “the State must . degree .That with the prove. purpose the death of William causing Z. Jackson, ERIC GRIL- LOT. . caused the death of accomplice William .[as] Jackson.” case, In this murder, Grillot to be held Hable for first-degree had to find that jury acted with the Phillips purpose causing the death of William There was never an issue of who Jackson. murder, killed Will. confessed to the and Phillips Grillot’s alleged for the murder liability was based on his status as an accomplice. A commit an offense person his own may by conduct or by another Ark. Code Ann. person. 5-2-401 1997). (Repl. § If criminal arises from the conduct of liability another then liabil- based is on ity Ark. accomplice Code Ann. liability. 5-2-404— § 403. There is no distinction between criminal of the liability State, and 636, perpetrator v. 317 Ark. accomplice. Riggins When two (1994). assist one another in persons crime, commission of each is an accomplice criminally Stаte, liable for the conduct of both. Davis v.
S.W.3d 872 A cannot (2002). disclaim participant responsibility because he or she did not take act that personally every part Davis, Parker crime as a whole. supra; to make
went up is liable for If Grillot 578 S.W.2d for the murder commit- is liable as an accomplice, the murder intent decision on killing Phillips’s ted Phillips. jury’s would be of murder Grillot what degree determine Will would for as an held liable accomplice. Instruction Murder
Capital notes, that the model jury As the argues majority However, as states law. majority instruction erroneously Therefore, a notes, murder. of capital GriEot was also acquitted instruction to the model court with decision of this respect on The issue is have no GriEot. murder would impact on capital Rather, ren- one of acquittal prejudice. Arkansas, an becomes moot when moot. issue ders the issue no effect rendered would have legal upon practical any judgment Bohanan then existing legal controversy. moot, it need not be Because the issue 708 (1999). therefore,
addressed, harmless error is unnec- the discussion of *28 and confusing. essary on Lesser-included Instructions
Jury
Offenses
erred
whether the trial court
This case includes the issue of
lesser-included offense when GriEot
the
the
in instructing
jury
This court has
had
involvement in the murder.
that he
no
argued
the
court is
the
of whether
trial
obligated
never answered
question
instruct on
5-1-110
1997),
under Ark. Code Ann.
(Repl.
§
the
when the defendant does not want
lesser-included offenses
451, 903
170
State v.
321 Ark.
S.W.2d
Jones,
instruction. See
McCormack,
285,
343 Ark.
The dissent in State
issue has never been
also notes that the
S.W.3d
(2000),
not been addressed
court.
the issue has
Although
addressed
by
State,
was
the
and the
in the
because it was raised by
appeal
past
3,
issue is now raised
under Ark. R.
P.—Crim.
the
declined
App.
the court.
be addressed
a criminal defendant and should
by
by
as
this were an
a by
the issue
if
appeal
The
has discussed
majority
a lesser-
but was denied
defendant who
criminal
requested,
Here,
the issue involves
That is
the case.
included instruction.
the
instruction
State.
an
requested by
State,
Britt v.
The
cites
344 Ark.
Doby, involves a supra, by majority, request by criminal defendant for an instruction. this court noted Doby, crimes, involvement in Doby, any was denying taking case, therefore, an all or in his and nothing there was no approach rational basis for on a lesser-included instructing jury offense. in Roberts v. Similarly, this court held that
(1984), where the denied theft appellant any whatever, his for an instruction on the request lesser-included rational, offense of theft was not by and the trial court receiving committed no error to instruct the on the refusing lesser- jury included offense. In Brown (1995), case involved unlawful of cocaine. In delivery
Brown,the
established that she was elsewhere
appellant’sproof
and
innocent
in the cocaine transaction. The court
participating
held
it
defies common sense to
give
lesser-
included instruction on
of cocaine that she
possession
requested.
words,
The court stated: “In other
if Brown was not
when
present
occurred,
sale
she
could
drug
logically
not be
present
par-
in a lesser offense.
Such
ticipate
proffered instruсtion could do
Thus,
but
nothing
confuse
we hold the trial court
jury.
Brown,
correct in
it.”
321 Ark. at
refusing
416. In another case
where the
the State
charge
were for the actual
proof
deliv-
*29
there
ery marijuana,
was no rational basis for instruction on the
lesser-included offense of
possession requested by
appellant.
Whitener
Section 5-1-110 that the trial provides court is not obligated to instruct a lesser-included offense unless there is a rational basis for that the criminal defendant concluding might acquit- ted of the crime and convicted of the charged lesser-included offense. The cases cited above arise from criminal by requests This court offenses. on lesser-included for instructions
defendants to an is entitled whether the State issue of address the must so. The major- basis doing there is a rational when instruction or answered posed question has not this analysis provided ity MacCormack,supra. See supra; this issue. Jones, dissent. I Based on the respectfully foregoing, Thornton, J., joins.
Corbin, J., participating. Ford, COMPANY, Inc. v. North Point MOTOR FORD HARPER, Milton Harper, The Reverend Janice Church, Leon Dulemer Room Apostolic Upper S.W.3d 168 01-1286 of Arkansas Court Supreme 22, 2003 delivered May Opinion