Johnson v. State

430 v. STATE of Arkansas

Stacey JOHNSON 934 S.W.2d 95-427 CR of Arkansas Court Supreme delivered October Opinion Hutto and Richard Ellen Arkansas Public De- Mary Vandegrift, Comm’n, fender DeborahR. for by: Sailings, appellant. Gen., Holt, Gen.,

Winston Kent G. Asst. Bryant,Att’y by: Att’y for appellee. Robert L. Brown, Stacey Appellant appeals Justice.

his conviction for murder and his sentence of death lethal capital reversal, He raises bases for an asser- injection. multiple including tion that his identification in a the victim’s six- photo lineup by was inadmissible We and reverse year-old daughter hearsay. agree of conviction and remand for newa trial. judgment Carol Heath was murdered in her brutally duplex apartment 1, 1993, DeQueen either or the morn- night April early beaten, hours of 1993. She was and had ing April strangled, six, children, throat slit while her two young age Ashley, two, were home. The facts the murder Jonathan, age regarding its aftermath are from At and trial gleaned pretrial testimony. ap- 2, a.m. on the victim’s 6:45 Rose proximately April Cassidy, sister-in-law, knocked on the victim’s door but did not receive an unlocked, answer. Because the door she entered and found on the room floor nude living body lying Carol Heath’s partially and then the street to call the ran across police of blood. She a pool niece (Jonathan), check on her (Ashley) nephew returned to testified bedroom window. out the Cassidy she saw whom looking ac- had asked what happened. Ashley responded, that she in, who, and had broke and I said “[S]omebody cording Cassidy: man.” The victim was white. said a [bjlack she (Ashley) Tucker of the Police DeQueen Keith Department Sergeant nude for a t-shirt that he found Carol Heath’s testified body except her around her neck. He stated that that had been body pushed up tilted its back between a couch which was on was located up legs a coffee table which had been moved toward the apparently middle of the room. Chief of Police Smith arrived DeQueen James at the later. He testified that when he the t-shirt apartment pulled neck, from the victim’s he saw that her throat had been away slashed. Peretti,

Dr. Frank an associate medical examiner for the State Crime testified that Carol Heath’s death was caused Laboratory, neck, and blunt-force head He cutting strangulation, injuries. that her attacker stated left a four-inch two-inch cut wound on her neck that went inch into her He observed one-quarter spine. face, that she had several bruises and abrasions on her head and she had on her hands and arms consistent with injuries defensive wounds, that she had a bite mark on the of her breast nipple right breast, and an on abrasion her left and that there was a one-quarter- inch on her contusion labia minora. Dr. Peretti could not right conclude, evidence, based that she had been either physical assaulted or sexually raped. Officer a criminal the De- with Behling, investigator James Police testified that

Queen he observed a Department, pair next to Carol Heath’s He an area of noted panties right thigh. between and around the and below the lighter-colored liquid legs area of the victim. An douche and an botde genital empty empty condom box were found in the bathroom sink. “Lifestyles” 5, 1993, Kenneth On found a in the woods April Bryan purse between and Horatio which he later realized DeQueen belonged the victim. He took Officer to the location. Officer Behling shirt, examined the area and a found Behling bloody pullover green t-shirt, Sakevicius, an a white Lisa towel. bloody bloody section, with the trace evidence State Crime Laboratory’s expert similar to the hair testified that hairs victim’s were microscopically found on all three of these items. She further testified that hairs breast, retrieved from under the victim’s left from the floor victim, and from the white t-shirt were of Negroid origin. Jane Parsons, a forensic testified for the State that no semen serologist, was found connection with the victim. She admitted that the of semen would be if the used a finding unlikely, perpetrator condom and douched the victim. Weber,

DNA evidence was introduced at trial. Melisa a staff molecular at Cellmark conducted a Restric- biologist Diagnostics, tion test on the Fragment Length Polymorphism green [RFLP] shirt for State and testified that to a reasonable of scien- degree tific the blood matched that of Carol Heath. She also certainty conducted a Chain Reaction test on several Polymerase [PCR] items, the white t-shirt found in the a butt including park, cigarette shirt, found in the and hairs taken from the of Carol green body Heath and near to where the was located. With to the body respect t-shirt, white Weber testified that the victim could not be excluded as the source of the blood and that the of this DNA probability 12,000. come from another Caucasian 1 in With having respect hairs, butt and Weber could cigarette opined not be excluded and that the that another African- probability American was the donor of the DNA in was 1 in 250. question McWhirter,

Officer an with the Hayes Arkansas investigator Police, Heath, talked State with the victim’s daughter, Ashley the afternoon of 1993. Also at the time was April present Emerson, a with the of Human Cynthia supervisor Department Services. Officer McWhirter made the from mad at male was The black out of he had jail. said just got other over two He had been Branson. for mother dating male The black times, a time it a while or long ago. but was them I saw fighting. hair as about as much had [McWhirter.] male the black the floor. I saw on Then I saw mother laying truck, I I think. in a brown and he and he got leave got up beside truck was a The brown parked a knife and saw gun. he the window. When looked out the house. Mother on knocked, mother was she let him in. While laying then room. We floor, into the bath the black male walked the to the bath I came out the door in the closet. were hiding in his hand beside male had a knife and the black room left, I went After he floor She was on the bleeding. mommy. at looked mommy momma in and saw bleeding. Jonathan and then in went to bed was covered blood. We twice. She door, I was knocked on the when someone this morning screamed, I knew she the door. When Rose scared to open I time saw all over her. saw with blood Every mommy male, he had clothes on. black a stack of seven that he handed Ashley testified

Officer McWhirter twice. and she out of photo lineup photographs, picked Johnson New Mexico. arrested Albuquerque, subsequently Johnson trial, to found incompetent the trial court Prior thus, and, unavailable. That trauma due to psychological testify moved in limine then not an issue in this is appeal. finding Johnson McWhirter made to Officer to exclude all statements by Ashley of the motion in his brief in Emerson. support argued Johnson to be the statements was one of the selection from the lineup photo reflection and it was the of Ashley’s because product suppressed a time during was made in deliberation and response questions hearing After a no of excitement. when showed signs was hear- related McWhirter whether her as Officer testimony to the statements police trial court determined that Ashley’s say, officer and Emerson met the criteria of excited utterances and were as an admissible rule. This necessa- exception hearsay ruling embraced selection of from the rily Ashley’s photo lineup Johnson on the two occasions. The trial court also ruled that state- Ashley’s ment to Rose as an excited utterance. At the same Cassidy qualified time, the court excluded statements made to EMT by Ashley per- sonnel and to even these statements were made on family though the same to her statements to Officer McWhirter. day prior The trial court determined that the statements were not reliable and did not as excited utterances. qualify trial, At found murder. jury Stacey guilty capital Johnson

Following found the crime be penalty phase, jury aggra- vated three circumstances: (1) committed previously another an element of which was the use or felony, threat of violence to another or a substantial risk of death person or creating serious to another physical injury (2) murder was person; capital committed for the of or an purpose arrest or avoiding preventing an from effecting the escape (3) murder was custody; capital committed in an cruel manner. The especially jury unanimously that there were no agreed circumstances and sentenced mitigating to death lethal by injection. Johnson We first address whether selection of Ashley’s photo- Johnson’s from a as an excited

graph photo utterance. lineup qualified

I. Photo Lineup At 2, 1993, 3:30 on the afternoon of approximately p.m. April McWhirter, Emerson, Officer accompanied by Cynthia supervi- Services, sor with the of Human Department went to Ashley’s home outside, to visit with grandparents’ took Ashley. They Ashley and she mother, told them what to her which was happened related Officer statement, McWhirter at trial. After the the of- police ficer showed her seven one of whom was photographs, Johnson. She was told to look at the went closely She photographs. through the and selected photographs carefully Officer picture. Johnson’s McWhirter them, then retrieved the shuffled photographs, showed them to a second time. He asked to look She went carefully again. back the she pictures again through selected as the The trial court culprit. permitted testimony Johnson of the selection excited officer as an utterance. We police conclude that as an excited utter- this allowing testimony hearsay of was an abuse discretion. anee of the Arkansas Rules of Evidence defines 803(2)

Rule rule: “A statement “excited utterance” exception hearsay event or condition made while the declarant to a relating startling the event or condi was under the stress of excitement caused by has, occasions, This court on numerous this tion.” applied excep of children who tion to cases may, involving testimony young not, or at trial. The basic of may eventually testify requirements “excited utterance” are as follows: exception

First there must be an occasion which excites the declarant. Second, the must be uttered during period [s]tatement excitement and must the declarant’s reaction to the express occasion. these tend to If there practice, merge together. declarant, was a sudden event which startled the his ensuing stimulus; utterance will be assumed to be his reaction excited, if the statement to be it will be assumed the appears occasion was exciting. State, 524, 529-30, 94,

Smith v. 303 Ark. 798 S.W.2d 97 (1990) Louisell, 4 D. FederalEvidence 439 (quoting (1980)). § Officer McWhirter to about By allowing testify Ashley’s selection, contends he was denied his to con photo right front as under the Sixth Amendment. The guaranteed right of confrontation two for a criminal provides types protection defendant: the to face those who him right physically testify against and the to conduct effective cross-examination. Dela opportunity Fensterer, ware v. 474 U.S. 15 317 Ark. (1985); Suggs denied, 547-A, 879 S.W.2d Ark. 879 S.W.2d 432 reh’g Bowden v. (1994); 301 Ark. S.W.2d 783 842 (1990). counsel contends that he was foreclosed from asking Johnson’s such as: how was she able to see Ashley questions how Johnson, him, furniture, did she see was her view blocked long were the by on, and so forth. lights

The United States Court discussed Con Supreme frontation Clause in Idaho v. Rule exceptions Hearsay 497 U.S. 805 (1990): Wright, Roberts, Ohio we set forth a for “general approach” statements admissible when

determining incriminating under an rule meet the also to hearsay require- exception 440 U.S., of the at 65. We

ments Confrontation Clause. in that the two noted Confrontation Clause “operates sepa- admissible rate to restrict the of Ibid. ways range hearsay.” “First, in the Framers’ conformance with for preference accusation, face-to-face the Sixth Amendment establishes a , rule of In the usual case . . . must necessity. prosecution of, either or demonstrate the produce, unavailability declarant whose statement it wishes to use against Ibid, Second, defendant.” once a witness (citations omitted). unavailable, is shown to be “his statement is admissible only if it bears ‘indicia of can be reliability.’ adequate Reliability without in a case where the evidence more ivithin a inferred falls cases, rooted In other the evidence firmly hearsay exception. excluded, must be at least absent a showing particularized Id., at trustworthiness.” guarantees (footnote omitted); Stubbs, see also Mancusiv. 408 U.S. 213 (1972). 497 U.S. at added). 814-15 Wright, (emphasis

The Officer McWhirter of how description by studied the and made her two selections of photographs Johnson’s smack of a deliberate and reflective act photograph young excitement, and not of conduct we associate with girl spontaneity, or Officer testified at the McWhirter omnibus hear impulsiveness. that he handed the “like a deck of cards.” ing photographs He stated that she went them once or twice and that he through told her to make sure “she looked at them She good.” chose and Officer McWhirter the exer photograph, repeated Johnson’s case, The cise. evidence was a critical in the State’s and the cog defense was thwarted in its the matter completely ability explore cross-examination of the declarant. This is not a case where through a declarant is shown a member and shrieks an by family picture Cir.1975), identification. See United States v. 518 F.2d (9th Napier, denied, rt. 423 U.S. 895 We know of no (1975). case any ce which stands for the that a to iden jurisdiction proposition request followed a deliberate of an offender from a tify choosing lineup such have as we here as an excited utterance. qualifies Officer McWhirter of selec testimony by Ashley’s tion from the should have been excluded as unreliable photo lineup and as to confront the hearsay running contrary right Johnson’s witnesses trial him. We reverse the court on this against point remand for a new of the raised in this trial. Because points many However, retrial, them. at we will address occur appeal may again is of the inadmissible since we hold that the lineup testimony photo the relia- address the issue raised we need not concerning hearsay, that will be of that There is Ashley bility possibility lineup. matter, which would deemed to at a retrial of this testify competent Nevertheless, into we view back bring lineup’s legitimacy play. as too for us to consider the point. contingency speculative II. Points on Retrial

a. Statement McWhirter. Ashley’s Officer we consider the deliberate act of from a

Though choosing with the excitement and photo lineup incompatible impulsive utterance, associated with an excited we hold differ- spontaneity with verbal statements. do so We based on endy respect Ashley’s before and her statement as during descriptions Ashley pro- vided Emerson and Officer McWhirter. by Cynthia

First, there are Emerson’s comments at the Cynthia revealing which related to and atti- competency hearing Ashley’sappearance tude on the afternoon of The 1993. conversation with the April occurred some nine hours after had been re- young girl moved from the where her mother covered in blood. apartment lay Emerson, After and Officer McWhirter went outside her Ashley, house, into Emerson’s grandparents’ Ashley jumped lap. police officer informed the that he wanted to know what had young girl mother, to her started accord- happened Ashley “just talking,” — to Emerson. She added: “She rambled about ing know just you it was out of a lot.” sequence

Emerson’s with the follows: colloquy prosecutor it fair

PROSECUTOR: Would be say had control over that statement you got?

EMERSON: Definitely, definitely.

PROSECUTOR: You said earlier that she had some- what of an obsession to tell this? — EMERSON: It’s like I don’t know. Like Right. —

some kids have a want to out. It’s something they get — like almost an She we didn’t explosion. just completely have chance to ask any questions.... really testified Emerson “rat- later omnibus At the hearing, Ashley her and it officer when that was telling tled” to the story police cross-examination, Emerson stated that fast On “very pace[d].” excited as she was At trial became more relating story. Ashley Emerson testified: know, adults, know, we

EMERSON: You you put Kids, in order. when or nervous about they’re things upset and, know, not in talk it’s something, they just you sequence. And that’s the PROSECUTOR: Okay. you’re saying was? story way Ashley’s Oh,

EMERSON: She was to tell the yes. very eager in story, my opinion.

PROSECUTOR: Was she upset? but it was EMERSON: She was very upset hyper, like when she was us the she was focused in telling story, just was wasn’t aware that we were what She really happening. there. I mean she was us this but it wasn’t a telling story, to her. It was she needed to story just something say. Officer McWhirter’s followed a similar description Ashley At he theme. one of the pretrial hearings, responded affirmatively trial, “She unloaded on At he described question: just you?” at the time as “scared.” He asked what had happened the and then described her previous night response: knew, I next she started thing just talking, spontane- [T]he

—ous I mean she started She would into one talking. go she and never thing, just kept talking stopped, during the time she was she would ask me which talking questions, answer, I wasn’t so let her until we going just talking keep she finished.

Thus, had a child from two who you six-year-old reports scared, mur was and excited when she about the told hyperactive, der of her mother on the afternoon after the discuss homicide. in criteria we the excited-utterance ing weigh considering we have looked in the out set exception, past summary Shell, Circuit Court of in United States v. Iron Eighth Appeals F.2d 77 Cir. (8th 1980): of time event and the out-of- between lapse startling is not in the relevant dispositive although

court statement is it declar- Nor controlling 803(2). [the application Rather, to an made response inquiry. statement ant’s] must in deter- the trial court weigh these are factors which is within 803(2) testimony the offered whether mining include the of the to consider age factors Other exception. declarant, of the declarant, mental condition the physical and the matter of the event subject characteristics of it must find that 803(2) ap- In order to applies, statements. time was such that condition at the the declarant’s that pear rather excited or impulsive the statement spontaneous, and deliberation. of reflection than the product State, v. 303 in Smith omitted) citations Id. at 86 (internal (quoted 94, 524, 531, (1990)). S.W.2d 98 Ark. 798 of the fact note in the Smith case further took

This court interval after an of the time was toward that the trend expansion liberal in so that some courts are more doing event and exciting State, 530, Ark. at 798 is a child. Smith v. 303 when the declarant Binder, Handbook 2.03 (1983)). D. at 97 Hearsay S.W.2d (citing § State, See, trend. Greenleev. 318 has followed that This court e.g., 191, made the next utterance (excited S.W.2d 947 (1994) Ark. 884 of sexual abuse the a informing parent morning by six-year-old State, utterance made v. (excited by boys night); Suggs supra previous their mother stabbed hours after witnessed being 24 to 30 having State, Ark. S.W.2d 573 (1991) v. 818 times); Cole after the utterance made (excited day rape by twenty-three- the mental of a six- retarded victim with capacity year-old mentally State, (1991), 306 Ark. 813 S.W.2d 792 v. year-old); George 374-A, denied, utter (excited 951 (1991) 306 Ark. 818 S.W.2d reh’g child awoke from a ance made when two-and-a-half-year-old abuse); and related of sexual Smith supra story nightmare made after the next a utterance (excited morning by three-year-old of the author a murder the afternoon). previous light witnessing nine more than view the statement made we do not by Ashley ity, was removed mother’s was discovered and she hours after her body and as inconsistent with the from the spontaneity impul apartment with an excited utterance. siveness associated to Rose Cassidy trial court also dubbed statement Ashley’s But excited utterance. a black man as the as an concerning culprit made comments the court then refused to allow various and Officer McWhirter to the conversation with Cynthia prior Emerson:

— about 7:00 a.m. that To EMT Archie in the house and that and her mother heard something to see what it was and had fallen. mother got up — sister, To the Melissa a victim’s 45-minute Cassidy during man in killed her

conversation a black broke mother.

— Heath, To her Arlene over the course of grandmother, that she heard someone come in the day apartment him sit on the couch saw with playing gun,

she hid the television set in the hall and saw her blood, mother that the man was bald but also lying hat, had a black that he was blue wearing jeans boots, that he had on black and a and a green jacket pants black shirt with red and that he had a orange designs, tie, in it and with wore a and that he was gold ring glass chunky.

The trial court no for it found these state- gave explanation why ments unreliable and not excited utterances. A reasonable explana- tion would be that a statement made a 45-minute conversa- during tion or random comments made the course of the do during day not muster. the foundation laid Emerson pass Certainly, by Cynthia and Officer McWhirter excited demeanor when regarding Ashley’s was not laid for the statements made to telling story similarly Archie Melissa and Arlene Heath. Johnson, Cassidy,

We conclude that the trial court did not abuse its discre tion in to what told Officer McWhirter allowing testify him. we that at the retrial hold of this matter Ashley’s Accordingly, of the crime as related to Emerson and Officer description Cynthia McWhirter, other than her identification of from the Johnson is admissible as an excited utterance and does not photo lineup, violate the Confrontation Clause.

b. and Rule Testimony Drug Trafficking 404(b). of in limine to from moved State’switnesses prevent Johnson between him and The connection mentioning any drug trafficking. trial, motion was denied. raised the issue again prior Johnson trial, it was denied. At Shawnda Helms testified as of the again part her on two the victim and State’s case that approached Johnson 1, 1993, was on The first occasion during occasions. February the victim’s house: called us into social at gathering “[H]e that we could us if we knew or kitchen asked anybody anyway have them some kilos because he needed to trans- help transport he me and if we would out with and then asked Carol go ported, no, him and we told him because we didn’t date guys.” [b]lack Helms that she to mean The testified understood “kilos” “cocaine.” 15, 1993, second occasion was on at an establishment February named “In Your there and Ear”: called us over asked us if “Stacey we had of who could him them thought anybody help transport no, and we told him then he asked if (kilos) Carol she again [a]nd — him, would back out with him if she would out with go go she said no.” Helms testified that when refused to with the they help cocaine, “looked like he was mad. He was pretty upset with our answer.” First, is twofold. he contends argument appeal Johnson’s that the statements are evidence under inappropriate “propensity” Ark. R. Evid. he 404(b). maintains that even if the Secondly, relevant, statements were their value is out- probative substantially of unfair under Ark. weighed by danger R. Evid. 403. prejudice He that the references did but argues drug his nothing “impugn character and mind him.” The improperly sway jury’s against State counters that about cocaine are requests transporting Johnson’s from Rule because 404(b) established excepted they knowledge the victim. It can also be from the garnered Shawnda testimony Helms that refusal to as well as the refusal to transport drugs date were motives for the slaying.

We with the State that the agree evidence was permissi ble. Both and motive are to Rule knowledge exceptions 404(b). Nor do we view the evidence as under Rule unfairly prejudicial 403. relevance of circumstances which tie the perpetrator the victim and raise a motive for the is possible killing patently obvious. The fact that that came about in the context of knowledge an deal should not be testi attempted drug for grounds excluding about the mony transaction. proposed There is also the fact that did not a limiting request Johnson

instruction that the not be considered for the drug testimony pur- sure, of to be a bad man. To be refusal to pose finding Johnson such an well been a instruction could have matter of trial request Yet, counsel’s an of that kind on defense instruction part. strategy char- would have directed attention from jury’s away Johnson’s acter and toward the motive and knowledge exceptions. There was no error in allowing drug testimony.

c. DNA Testimony.

The two sides a fierce battle over the admission of waged statistical with to PCR probabilities respect testing. Johnson Crew, Mark Dr. a molecular presented testimony by biologist, used databases Cellmark for PCR underlying by Diagnostics were unreliable because were insufficient in size. In his testing they the databaseswere unreliable because did not include opinion, they taken from the Sevier County gene samples pool. Word, Cellmark,

Dr. Charlotte a molecular with biologist admitted that the databases for the PCR took employed testing from areas rather than from Arkansas. samples major metropolitan But she also stated that the databaseswere tested and determined to be in that the Hardy-Weinberg Equilibrium, meaning frequency certain in the is re- types genes general population adequately attained, flected in the databases. this When is it is then equilibrium in terms of the entire possible predict frequency, population, of how common it would be to find a combination of the different in one genes person. This court decided this issue recently against See Johnson. State, 529, Moore,

Moorev. 323 Ark. 915 S.W.2d 284 (1996). we stated:

The trial court also determined that correctly any challenge to the conclusions reached the state’s expert, including match, statistical whetherthe test resultsconstituteda probabilityof trial, would be made at cross-examination appropriately of the state’s the defendant of his experts presentation by own about the results of experts express differing opinions the FBI tests and statistical of a match. probability Moore, Ark. at 915 S.W.2d at added). 294 (emphasis Furthermore, for both and the State experts agreed Cellmark conservative” statistical provided “falsely probabilities, factor that this court has afforded some whether weight assessing databases were in See Prater Hardy-Weinberg Equilibrium.

307 Ark. 820 S.W.2d 429 (1991). all but concedes that the battle of the experts Johnson is a matter for and cross- over statistical probabilities litigation Nevertheless, examination. he asks this court to revisit the issue and the DNA decline consider tests. We to do so. There was excluding this evidence to be no error allowing presented jury.

d. to Date BlackMan. Intent

The State extracted statements from four witnesses that Carol Heath did not date black men or entertain black men in her home. evidence, to this to introduce the response attempted Johnson who worked with the victim at testimony Johnson, Cynthia DHS, 31, 1993, that told her on Carol March Wednesday, Green, African-American, an had asked her for a date. Green Doyle was an auditor who lived in Litde Rock but was in DeQueen some work for the local DHS office. doing apparently Cynthia also testified that Green was the one of three Little only Johnson 1, Rock auditors who decided to spend following night, April 1993, in thus the inference DeQueen, that he could have creating admitted, however, been the murderer. She on cross-examination did she not know Carol Heath on a basis and had no personal idea whether she dated Green. actually Doyle

The trial court found this to be properly testimony excluded unduly it. Evidence that does speculative properly no more than an create inference or of another’s conjecture is guilt State, inadmissible. v. Ark. 852 S.W.2d Zinger 320 (1993) Wilson, State 367 S.E.2d 589 (citing (N.C. There was 1988)). no abuse of discretion.

e. Narrounngof Offenses.

This court has laid to rest the that an uncon argument stitutional occurs between our overlapping murder statute capital and our murder statute. The forth first-degree argument put 87, 107, was answered in Noonerv. 322 Ark. recendy 907 S.W.2d 687-88 (1995):

Nooner that the definition murder argues of capital does not narrow the crime sufficiendy for which death can be He penalty alludes to imposed. specifically overlap between definitions of murder and first mur- capital degree der, which we have discussed. The United States already Court has held that the Supreme required narrowing occur at the the may crimes to death susceptible penalty that has held trial. This court the previously penalty phase the by limiting our the requirement statutes narrowing pass sufficient cir- aggravating death crimes involving penalty contention. (Ci- no merit to Nooner’s cumstances. There is omitted.) tations 178, State, Reams (1996); Ark. 919 S.W.2d 943

See also v. 324 Kemp State, 336, State, v. 317 Greene (1995); v. 322 Ark. 909 S.W.2d 324 State, 227, 350, v. 315 Ark. Buchanan (1994); Ark. 878 S.W.2d 384 235, State, v. 309 Ark. 831 S.W.2d (1993); 866 S.W.2d 395 Mauppin is true this case. argument The same holds (1992). 104 Johnson’s meritless. an Cruel as Circumstance. Aggravating Especially

f. cruel” contends that the “especially aggravat Johnson circumstance, Ann. codified at Ark. 5-4-604(8) Code (Repl. ing § the and Four is and overbroad violates 1993), Eighth vague Constitution and Article Amendments the United States teenth 2, have Constitution. We previously section 9 of the Arkansas an this and overbroad” decided “vague argument against appellant, and in so we stated: doing atrocious, heinous, or cruel”

The aggra- previous “especially this was declared unconstitutional circumstance vating it the court it was so violated because vague Eighth cruel unu- against Fourteenth Amendments’ prohibition State, 682, 295 Ark. 751 sual See Wilson v. punishment. rewrote S.W.2d 734 (1988). legislature aggravating definitions of circumstance in and based statutory 1991 manner” cruel manner” and depraved “especially “especially of its Court’s Arizona limiting interpretation Supreme heinous, or circum- cruel depraved” aggravating “especially found the United States stance that had been Supreme muster. Court to constitutional pass 384, 350, 360-61, State, (1994) v. Ark. 878 S.W.2d 390 Greene 317 Arizona, also Bowenv. U.S. See (1990)). Waltonv. 497 639 (citing State, (1995); 322 Ark. 911 S.W.2d 555 Coulter has advanced no argu- Ark. S.W.2d 348 (1991). Johnson in a Arkansas Constitution us ment that persuades interpret manner. contrary

Nor can there be doubt that evidence abounded any in an manner. The murder was cruel perpetrated especially considerable of the victim is to that damage body testimony were, too, wounds, fact. There the defensive the circumstantial evidence of and the of the victim found on rape, bloody fingerprint the linen closet which Carol Heath did not die suggested immediately. — Circumstances the Class.

g. Aggravating Narrowing contests in this case and avoiding-arrest aggravator that all murders could have been committed to urges avoid arguably arrest. As a he contends that this circum- consequence, aggravating stance did not narrow the classof for the effectively persons eligible death for the penalty jury’s purposes.

This overbreadth has precise been argument previously court, this and rejected by cites no that authority persuades Johnson us to our State, See Coulterv. change position. further supra.Johnson that the statute is argues unconstitutional in that it allows for a of finding circumstances at a lesser aggravating standard than “be a reasonable doubt.” This yond is belied the argument by plain of Ark. Code language Ann. 5-4-603 which 1993), re (Repl. § of quires a findings reasonable aggravators beyond doubt and the by verdict form returned penalty-phase the in his case. jury The State that the murder was argues committed for the pur- Carol Heath pose as a eliminating victim-witness in a battery trial or as a evidenced, in a trial. prosecutrix-witness This is rape to the State’s according his to “clean theory, by the attempts up” victim and eliminate circumstantial evidence of and his imme- rape, diate to New departure Mexico after the Albuquerque, crime. First,

We need not address this there argument. is no assurance that this will be particular submitted on retrial. aggravator But, addition, in there were two other circumstances aggravating found the which jury the clearly of no outweighed jury’s finding Hence, error, circumstances. the mitigating if was harmless. See any, Ark. Code Ann. 5-4-603(d) State, 1993). Accord v. (Repl. Kemp § supra.

h. Victim-ImpactTestimony. the at

During prosecution’s the closing argument penalty he made several phase, statements classifiesas that “victim Johnson “I evidence: sure won’t forget right hope you

impact” life, to had learn and had to that she grow Carol Heath right had know and love children and that to and love her two they right was left with ... “The manner which Carol Heath their mother” ... “Punish the man those two children the death justifies penalty” and to know and love watch who took Carol Heath’s rights away And to watch up Ashley grow up marry.... grow Jonathan do with him and see him with things grow struggle Jonathan, ... have lost They’ve up” parents] rights. precious “[Carol’s daughter.” statute, that the Ark. Code Ann. argues victim-impact not does sufficient 5-4-602(4) 1993), (Repl. give guidance

§ evidence, as to what and as victim-impact judge jury comprises it and Fourteenth Amendments to United such violates Eighth 2, section of the Arkansas States Constitution and Article Consti- tution. He also attacks the statements relevancy prosecutor’s that 5-4-602(4) and claims has penalty phase impermissibly § thus, and, been is an ex law. post applied retroactively facto answer is argument simple argu Johnson’s evidence, ments are and the trial court instructed the of counsel not Furthermore, 2d there was See AMCI no 101(e). jury accordingly. or for an admonition at time the objection request prosecutor made these statements. 313 Ark. See Woodruff But, addition, in these issues decided S.W.2d 299 were in (1993). Nooner, State, the In Nooner v. this court supra, against appellant. held: of the evidence permissible during the “{B]y expanding scope the General has not the Assembly of penalty expanded scope phase, added circumstance. hold or a new We punishment aggravating an this . . . did not constitute ex law.” permitting testimony postfacto Nooner, 322 Ark. at 907 S.W.2d at 689. Nooner, the constitution we also upheld underlying Nooner, 322-23, of See 322 Ark. at

ality victim-impact testimony. Tennessee, U.S. 907 S.W.2d at 688-89 v. Payne (citing the in does not (1991)). As was case Kemp supra, forth an that would convince this court to interpret put argument the the in a different manner. Arkansas Constitution provisions and

Reversed remanded. Dudley, Roaf, concur in dissent in Newbern, and JJ., part; part. and Dudley, in part dissenting H. Justice, concurring

Robert for a new trial. The and in remanding in I concur reversing part. was available to tes- murder victim’s daughter, Ashley, six-year-old the of her to because memory but was testify incompetent tify, so, trial court allowed a Even the mother’s murder was impaired. officer, McWhirter, after care- Ashley, testify police Hayes I identified as the murderer. fully studying photo lineup, appellant the that the with ruling wholeheartedly agree majority opinion The about the six constituted error. officer’stestimony prejudicial was Ark. R. Evid. 801. old’sidentification of appellant hearsay. year in evidence under the excited The trial court allowed the testimony rule, the Ark. R. Evid. The 803(2). utterance hearsay exception is not an and careful selection of a photograph simply delayed Thus, I concur in 803(2). excited utterance under Rule reversing new trial. and the case for a remanding further, however, and holds that

The goes majority opinion retrial, an of the McWhirter and Officer Hayes employee upon Services, Emerson, can of Human Cynthia testify Department statements the six old made to them. about year majority the under the excited will allow the at retrial opinion testimony rule. I would not allow the utterance hearsay exception statements because do not fit within the rooted they firmly holdings and, the excited utterance the embracing exception, by allowing evidence, statements will majority deny appellant right confrontation.

The facts are these. Rose discovered Carol Heath’s Cassidy in the room of the victim’s home at about 6:45 in the corpse living sister-in-law, Ms. the victim’s 1993. morning April Cassidy, went to a house and called hurriedly neighbor’s police. Upon home, she to the victim’s saw victim’s six-year-old returning win- brother out bedroom daughter, Ashley, looking scared, dow. Ms. said but not and was Cassidy Ashley crying, had able to Ms. asked what respond questions. Cassidy answered that a black man had broken in. happened, arrived, 7:00 a.m. the and an ambulance had By police children were taken out of the house a window so through they a medical would not see their mother’s corpse. pretrial hearings, technician, Archie testified that was “not emo- Johnson, Ashley condition, her but tional” and that she answered about questions He she seemed to be in shock was said that she because she quiet. told him were him they He said that Ashley find her clothes. helped mother to see and her got up heard something, all when they asleep that her mother had was she knew the next it was. The thing what court ruled The trial an assailant. mention She did not seeing fallen. It were not admissible. to Archie statements that the given Johnson found that the statements the trial court is highly significant The not admissible. were import and Archie Rose Cassidy statements, which did not two first was that Ashley’s of the ruhng utterances, excited and allowed as were not appellant, implicate from that riding. not State does cross-appeal untd their in the ambulance her brother waited and Ashley Heath, Heath, his home. Arlene took them to grandfather, John she that when got testified at a hearing pretrial their grandmother, home, out of control.” grand- was “totally to their Ashley had on and on” about what “rambled indicated that mother Ashley mother, minutes to calm it took about her and thirty happened told her the remainder of Ashley most of day her. During murder, varied. and the detads of the story about grandmother that she saw the man told grandmother For Ashley example, a in this break-in (not in the front door mentioning when he came in, she saw the he came and that when that she version), up got time a At one she with on a couch whde pistol. man sitting playing in a hall and hid the television set that she told her grandmother in blood. Throughout day, saw her mother lying that she detail, but also be- the intruder gained Ashley’sdescriptions bald, but also wore a said the man was more She came discrepant. boots, but later blue and he was wearing jeans hat. She said black a black shirt with red and a black green jacket, she described pants, that after- a tie. before 3:30 a gold ring, orange designs, Just a “bald in the house and saw heard someone noon she said she red black shirt and jacket, man” pants, green black wearing It is signifi- man was “chunky.” again highly She said the bandanna. evidence, into allow this trial court did not hearsay cant that the from the not ruling. and the State does cross-appeal sister, the victim’s to talk to The next person home at about at the arrived grandparents’ Melissa She Cassidy. inside. a.m., minutes before going waited thirty but twenty 8:55 discov- 10:30, the murder was four hours after or almost At about murder took since the ered, considerably longer and presumably cried for forty-five perhaps sat in Melissa’s lap place, a black time “blurted out” that man minutes. this During Ashley at the killed her mother. Melissa remained house had broken in and that She testified at a visitors many most of pretrial hearing day. left, visited with She said that arrived and and some Ashley. during calm, with her had she even cousin played day Ashley periods while, times she was it is for a but at other Again, upset. significant the statements made that the trial court refused to allow to Melissa evidence, into and the State does not cross-appeal.

Officer McWhirter went to the home at Hayes grandparents’ in the afternoon to He asked 3:30 Emer- question Ashley. Cynthia son, Services, an of Human to accom- employee Department him if “to see could tell us with the pany Ashley anything help arrived, case.” When was outside the they home. Ashley playing McWhirter talked to the while Emerson made small grandparents talk with who was neither emotional nor Ashley, McWhir- crying. ter took to the side of the house to her. Ashley She was question timid at first and refused to talk because he a had recorder. tape After he recorder to ask put tape away, Ashley him began about the murder. McWhirter asked her to tell him questions what critical, she could remember. Because it is his as ab- testimony, stracted, was: “I we said need to tell us what saw last you you night. We told her that she could remember from just last anything night or who have been in her house to do this to her might mother we needed to know. Then I didn’t She unloaded say anything. just so, account, me.” In another doing Ashley gave yet most de- tailed account of the She said her mother and she day. were sitting on a couch knocked, or in (not bed), someone asleep and her mother answered and let the man in (no She break-in). said the man was; asked where Branson that the man had a “girl name sounding” that he was (new fact); a black hat with wearing something hanging down the back a shirt (new fact), (not and a green black) sweater She said the man had (new fact). out of and was mad just gotten jail at her mother for Branson She said the man dating (new fact). had McWhirter’s; hair like that she saw the man and her mother fight- (new and saw the man fact) leave in a brown truck ing (new fact); that he had a and a knife (new and that he went to the gun facts); bathroom while her mother on the floor facts). said lay (new she was in the closet (new fact), and that she saw the man hiding her mother with a knife in his hand when she came out standing by left, of the closet to to the bathroom After he she go (new facts). went to bed. McWhirter then showed Ashley photo lineup, of the McWhirter did not murderer out

she lineup. picked emotional, he or distressed while crying, testify “excited,” that she was but admitted her. He testified questioned sum, officer went to the “in control.” In a grandpar- she was police witness, but the six old home to the year ents’ six-year-old question He his recorder and not talk to him at first. away would put tape did not to tell him what asked the six old happened. Ashley year did not a outburst. officer make testify spontaneous emotional, distressed when he her. or began question was crying, Yet, holds that her answers can come in under the majority opinion to the rule. the exited utterance hearsay exception not find that statements made to Archie The trial court did a.m., after or after an adult dis- 7:00 immediately shortly utterances, murder, excited and the State does not covered the were did find that statements made to the trial court not cross-appeal; that same were excited Melissa at about 10:30 morning Cassidy utterances, the does not the trial court did and State cross-appeal; the six old’s find that statements made to year not grandmother, Heath, utterances, the course of the were excited Arlene during day Yet, held, the trial court does not State cross-appeal. affirms, that to a given policeman majority opinion responses in the are admissible as an excited utterance. None of the later day such a cases cited in the majority opinion support holding. to a An excited utterance is statement relating starding “[a] made while the declarant was under the stress of event or condition the event or condition.” Ark. R. Evid. excitement caused by Here, case, under the law of the the declarant was not 803(2). a.m. the stressof excitement caused event” from 7:00 “under went into the stress of excitement until 3:00 but in some way p.m., does A recitation of events past response police questioning. State, Marx v. Ark. not constitute an excited utterance. ut- The statements were not (1987). 724 S.W.2d 456 spontaneous terances; rather, of the officer. were they product questions by old, had six the declarant she years obviously Although only murder with others and then added many discussed her mother’s not a mere the officer. This was new facts upon questioning utterance; statement. The issue is not whether it was complete accurate; rather, it is whether it is excited utterance is trustworthy, lack from under stress and a and trustworthiness comes spontaneity 307 Ark. reflection and deliberation. Cole who showed It was the same officer S.W.2d 573 (1991). the same interview. In some at way, majority

photo lineup but the accom- is holds lineup hearsay, opinion response The statements do not come statements are not hearsay. panying result, As a within the of trustworthiness. guarantees deep-rooted his I would not will be denied confrontation. appellant right into evidence allow the Officer McWhirter’s responses questions retrial. upon Roaf,

Newbern JJ., join. Karl W. SCHWARZ v. COLONIAL MORTGAGE COMPANY, Thomason, Thomason, H. A. Steven Randy Kelly and Delores

Murphy, Murphy 96-458 931 S.W.2d 763 Court Arkansas

Supreme delivered October Opinion notes following conversation and used these notes to refer to when he testified at and at trial: pretrial hearings stated her mother I and were on the couch when Ashley someone knocked on the door. She got up opened The door. No. is the one that picture Stacey Johnson, came in the door. looked at six different Ashley pictures black males.1 Mother likes Branson. He works at Your 1 In photographs. Officer McWhirter at seven revealed that looked testimony, took after and Officer McWhirter what had told Emerson photo lineup place had happened. black was. The where Branson male asked The Black Ear. hat with had on a black name. He sounding male used a girl He had on in the back. green down hanging something male the black were talking, When they shirt and sweater.

Case Details

Case Name: Johnson v. State

Court Name: Supreme Court of Arkansas

Date Published: Oct 28, 1996

Citation: 934 S.W.2d 179

Docket Number: CR 95-427

Court Abbreviation: Ark.