*1 all jury ing eumstances that members of the guilt may be considered a mitigating probably find exists. If no member circumstance. Ruiz v. 299 Ark. jury finds that other circum- mitigating exist,
stances probably space leave the be- portion The final 2 permits of Form low blank. jury specify any mitigating circum- not specifically
stances listed on the form. Other mitigating Specify circumstances. may be rare and extraordinary IsaThere in writing mitigating below other cir- cases in which no specific mitigating cir- all jury cumstances that members of the cumstances are listed on the verdict form probably find If no exists. member case, submitted to the jury. In such a jury other mitigating finds that circum- Form 2 should include the final por- exist, probably stances leave the be- space tion in jury which the may specify in writ- low blank. ing its own mitigating circumstances.
addition, Form 2 be should modified to require the jury to write “None” in the space provided mitigating circum- FOREMAN stances, thereby permitting appellate ON court to determine jury NOTE USE consid- rejected any ered and mitigating circum- respect With to each circum- mitigating stances. stance Form listed on should (1)
indicate jurors that either all find that exists; mitigating probably circumstance (2) one,
or jurors at least but not all find
that the mitigating probably circumstance
exists;
juror
no
finds that the miti-
gating circumstance exists.
even imprisonment pending a suc-
cessful appeal from a death sentence. Carolina,
Skipper v. South U.S. (1986),
S.Ct. 90 L.Ed.2d followed
Pickens v. required The trial court is not lingering regard- instruct that a doubt *4 Firm, by:
James Law “Bill” William O. James, Jr., Roсk, appellant. Little for McDaniel, Gen., Att’y Dustin by: Valer- Fortner, Gen., ie Att’y Glover Ass’t appellee. HANNAH,
JIM Chief Justice. Maiden, | ]Appellant, Donnie was con- premeditated victed of cap- and deliberate ital murder and was term sentenced a imprisonment of life parole.1 without conviction arose as a result of the shoot- ing Kylaus appeal, death of Williams. On (1) Maiden contends that the circuit court prevented abused its discretion when it him impeaching Bradley from Tim with (2) untruthfulness; prior his acts of circuit court abused its discretion when it him prevented impeaching Trenell prior Emerson with his inconsistent state- (3) ments; the circuit court erred in de- nying his motion for mistrial based on (4) violations; discovery overlap Arkansas Code Annotated sections 5-10- 101(a)(4) 5-10-102(a)(2) (Repl.2013) and penalty. 1. The State waived the death passenger’s section of the Arkan- arriving
violates article seat. After at (5) Constitution; location, joined sas circuit court Williams’s Emer- car, ridi- committed reversible error when it son in the backseat of the and jury’s counsel in the pres- culed defense Williams drove the four of them to “B. (6) |2the ence; court abused its at request. Upon and house” Maiden’s their | house, when it B. stopped discretion failed conduct arrival Williams sat hearing pursuant Bradley began to Daubert v. Merrell car and to exit car to Pharmaceuticals, Dow opened 509 U.S. use the restroom. Maiden then Williams, S.Ct. L.Ed.2d before door to exit the car shot expert testimony Bradley about a admitting palm took off running. Maiden print dragged car, found the scene the murder body Williams’s out of the as and identified Maiden’s. Because this and he and left the scene. appeal is a criminal in which a sentence eventually Maiden and Emerson aban- parole of life has imprisonment without doned car аnd ran. Maiden then jurisdiction been our imposed, pursuant is taxi, called which took him and Emerson 1- Supreme to Arkansas Court Rule to a hotel downtown Little Rock. Subse- *5 2(a)(2) (2013). We affirm the circuit quently, bought they bus tickets and court. a Greyhound boarded bus to California. Maiden not the challenge Using Because does the cell phone number that the men him, sufficiency against hotel, of the evidence to register had used at the Arkansas police a brief recitation of the facts neces- is tracked the GPS coordinates of the sary. phone On November and Williams’s were able to the determine body Highway found at in stopped was men’s location. The bus was County; Phoenix, Arizona, Pulaski of in police the cause death was and men of multiple gunshot custody by wounds. As a result were taken into the Phoenix death, its investigation police. into Williams’s County developed
Pulaski Office Sheriff’s Maiden first contends that the circuit suspects, Maiden and Emerson as and court abused its discretion preventing they later at an were arrested Arizona bus impeaching Bradley, him from Tim a wit- charged capital station. Both were with ness for the with prior his acts of murder. untruthfulness. Specifically, Maiden con- The at that adduced Maiden’s tends the circuit court its dis- abused Tim Bradley reveals that November cretion when it him would not allow to Williams, cousin, along Bradley’s and with of a impeach Bradley pend- with evidence Butler, motel, Leroy they charge drove to for ing providing where theft and a false Maiden, picked up police. Maiden and Emerson. five to According The name to hotel, admissible Bradley pursuant drove to another and exited evidence was to Ar- (2013) 608(b) purchase nearby the car to a drink from a kansas Rule of Evidence to during store. he that gone, Bradley conveniencе While was show had lied voir marijuana charge to sell Williams left some dire when he testified that the had they waiting Maiden. As were to hear been dismissed. Williams, Butler left. that, State Rule The counters because 608(b) restrictive, reported
Williams later called and
is intended to be
arbitrarily
he had
to
court
not
been robbed and asked them
circuit
did
act
or
drove,
pick him
was
up.
groundlessly by refusing
permit
Brad-
him,
in
Bradley
ley’s
seat behind
cross-examination with either
of another wit-
or his testified belief
ness or untruthfulness
pending
charge
theft
had been dismissed.
witness
charge
that the
ness as which character the
long held
this court has
State asserts that
has
being cross-examined
testified.
are not
previous
thefts
evidence
interpreted
This court has
Rule 608
thus,
and,
Brad-
probative
truthfulness
permit
inquiries
on cross-examination
ley
impeached
could
have been
with
not
clearly probative of
into conduct that
is
Moreover,
| ^charge.
according to
the theft
to disal
truthfulness
untruthfulness but
misunderstanding on Brad-
any
specific
into
instanc
low cross-examination
ley’s part
regarding
status of
dishonesty.
merely probative
es that are
not
charge against him was
evidence that
E.g., Bailey
lying.
he was
(1998). This court has
or ex
The decision
admit
admissibility:
test for
adopted
three-part
within the
discre
clude evidence is
sound
(1)
question
good
be
must
asked
court,
will not
tion of
circuit
and we
(2)
faith,
value
must out
probative
manifest
reverse
decision absent a
effect,
weigh
prejudicial
its
abuse
discretion.
Laswell
conduct must relate
the witness’s
prior
404 S.W.3d |¿truthfulness.
Id.,
no at Likewise, Maiden has failed to demon- 426 S.W.3d at in holding strate that our Scamardo re- Here, The quires reversal in the instant case. sought impeach to inconsistency in Scamardo in- by demonstrating challenged Emerson that he had prior by volved a statement the victim given different statements to Massiet being whether she was truthful possessing marijuana, purpose about the about against the accusations the defen- guns, for and who had hired a cab about buying Hеre, regarded the inconsistencies escaping. when Emerson and Maiden were dant. matters, trial, able to that he did not collateral and Maiden was At Emerson testified Emerson had made inconsistent mistrial is an a prose- show that extreme sanction for not The circuit court did cutorial discovery statements. violation and is to be allow refusing abuse its discretion in unless avoided the fundamental fairness of impeach prior Emerson with Maiden to the itself Thompson trial is at stake. See inconsistent statements.
Maiden next contends that the circuit denying court in his motion for mis- erred trial, At testified he Emerson that had trial, discovery alleged which was based on witnessed Maiden He shoot Williams. fur- by the He that violations State. maintains ther testified that when he provided his timely failed to disclose him State Arizona, in statement he not telling was testimony provide that Emerson would at the truth when he stated was that he not prior trial that was inconsistent with a in car when the shots were fired. On police. he Specifi- statement had made | cross-examination, admitted ^Emerson |intestimony cally, points he to Emerson’s that when he with in spoke officers Ari- actually he trial that had -witnessed zona, he was he lying when told them that Williams, which Maiden shoot contradicted he been had at the side of the house. The prior dis- police statement to and was day, presence next jury, outside the he was at side closed that mistrial, counsel for Maiden moved for a of the house when the shots were fired. asserting that the defense had learned af- in change He claims that the Emerson’s ter Emerson had testified that Emerson was testimony prejudi- both material and given prosecuting attorney had a state- cial it was until because not discovered ament week-and-a-half before after had and that the tеstified was consistent with his but in- attempt any preju- circuit court’s to cure prior consistent with his to Ari- statement dice insufficient. The State was contends police. zona Maiden contended that did its the circuit court not abuse recent statement had not been disclosed discretion Maiden’s mistrial denying by the in violation of Rule 17.1. motion he because cannot show that responded The State it was not omission was sufficient undermine required disclose Emerson’s recent in the outcome of the confidence trial. product it was statement because work and, thus, grant deny only decision it had to be if it disclosed However, motion mistrial within is the sound was written or recorded. after a issue, discretion of the trial and will not be brief recess to court research the showing overturned absent a it have acknowledged abuse State should prejudice appellant. provided change mаnifest Emerson’s state- Johnson apologized ment to defense. The State A mistrial is a for its mistake failure and asserted that its remedy drastic way and should be declared to disclose the information in no prejudicial when there is error so intentional. The circuit held a court then justice hearing, Lloyd cannot be served brief continuing evidentiary at which *9 trial, Warford, Emerson, when it be and cannot cured counsel for confirmed jury. E.g., Tryon days instruction the that he had been with be- gave 488 fore when Emerson statement respect prosecution changed With to motions for mistri the and that Emerson story al being based Arkansas Rule of his at the of the Criminal side 17.1, shooting being we when Procedure have observed that house the occurred ample op- then have The defense will Maiden fire the seeing and in the car Em- Trenell portunity that he to cross-examine also confirmed weapon. Wаrford prior the inconsistent counsel about erson on both informed Maiden’s had not changed the statement. in the statements. statement and change the yester- There was cross-examination that to the circuit court argued Maiden I’m inconsistency, giv- day about the prosecution’s the prejudiced he was additional cross- you a chance for ing his defense was failure to disclose because disclosures in view of the examination for Emer- adequately prepare unable to morning. made this addition, In son’s cross-examination. prejudiced by claimed that he was they that are to jury I will inform the |12because his de- discovery
the violation argu- my instruction that remember on the fact that there premised fense was state- during opening of counsel ments shooting the eyewitness no had been are not during remarks ment and emphasized counsel had and that defense evidence, that will be the cure that “no one is opening in his statement prejudice. the tell on this witness stand and going get addition, court informed the circuit you they saw it.” it would have a record of both sides that that the prosecu- The circuit court found | shearing Supreme to the Court sent 17.1(a) under Rule obligation tion had an on Professional Conduct. The Committee counsel to disclose to Maiden’s defense motion court then denied Maiden’s made a statement that that Emerson had for mistrial. original state- was inconsistent with courtroom, jury’s return to the Upon at the time relating presence ment to his jury of its the circuit court reminded shooting. The circuit court found the trial beginning at the instruction inconsistency in the statements of counsel or remarks “that statements that the State’s failure to was material and attorney during opening statements inconsistency prejudicial disclose the are not evi- during remarks the trial inability because “the to know about this ... they’re not to be treated as dence and certainly bearing had a on whether not the circuit In accordance with evidence.” able to antici- the defense would have been told the ruling, prosecutor then court’s before Trenell Emerson testified pate in Emerson’s testimo- change that the testify way in a different from his he would the car and then ny being “from outside The cir- previously disclosed statements.” in- witnessing this was not inside the car there was a cuit court then found ... Emer- counsel until formed to defense and outlined remedy any prejudice to cure yesterday.” The son testified on the stand be taken to execute steps that would Emerson, who reem- State then recalled remedy: he had lied in his phasized that it can cure the The Court believes outside police being Arizona about (A) prejudice by requiring the State to was shot. On the car when Williams Emerson, re-call Trenell disclose cross-examination, testified that he statement, prior inconsistent disclose the that he prosecutors time he told the first coun- fact that it did not inform defense shooting during in the car had been until change sel about the statement days before trial. was three began after the trial and disclose fact, among the is, dispute There is no fact that the new statement to disclose that the State’s failure prior parties statement. inconsistent with
273 disclosed, to the in Emerson’s statements the materials not change previously grant 17.1(a), continuance, violation of Rule defense was a a the prohibit party from part, which in relevant provides, introducing in the evidence material not disclosed, or enter other such order as it provisions of 17.5 [s]ubject to the Rules proper deems under 19.4, the circumstances. аttorney shall prosecuting the counsel, upon timely disclose to defense Although defense counsel did request, following material and in- the in the opening “you’re state statement that may formation is or within which come to going anyone never hear throughout the control, possession, knowledge the or of of say entire course this trial that they saw attorney: the prosecuting Williams,” Maiden Kylaus Donnie shoot it is clear the that the record circuit (ii) or state- any written recorded great court pains took to ensure that any any ments and the substance of oral prejudice was by instructing cured the by the statements made defendant jury multiple times that the statements of codefendant. evidence, by counsel were not requiring 17.1(a)(ii). Ark. have held stipulate R.Crim. P. We the State to admit and to the that the of the rules is purpose discovery jurors that it had not informed defense require to the State to disclose its evi of the change counsel Emerson’s state dence to the in time for the ments, defendant by providing Maiden an addi of defendant to make use the [ opportunity tional to cross-examine Emer 14beneficial N.D. E.g., information. v. 2011 change son about in his testimony. 282, key at 383 S.W.3d 401. The Moreover, it is well within for a discovery determination reversible discretion court’s which sanction to em violation appellant is whether E.g., Reed ploy.
prejudiced
prosecutor’s
by the
failure to
S.W.2d
Bray
disclose.
322 Ark.
additionally cites this court to
hsMaiden
88, 89
908 S.W.2d
If the State
Clements v.
provide
does not
information
pursuant
however,
(1990);
his
S.W.2d
reliance
pretrial discovery procedures, the burden
decision
In
misplaced.
is
Clem-
is on the
appellant
establish that
ents, the State failed to turn over to the
confi
omission was sufficient to undermine
grand-jury testimony,
defense witness’s
Id,.,
dence in the
outcоme
the trial.
which conflicted with
in-court identifi-
S.W.2d at 89.
320-23,
appellant.
cation
at
Id.
claims
relief
that,
at 840-42.
court held
This
granted by
any
the circuit court to cure
case,
under the circumstances of the
prejudice resulting from the State’s failure
wrongly
circuit court
denied Clements’s
disagree.
to disclose was insufficient. We
appellant
mistrial
motion for
because
Pursuant
to Arkansas Rule of Criminal
type
prejudice
suffered
could
19.7(a) (2013),
Procedure
324-25,
only by
be
a mistrial.
Id. at
cured
during
at
The court
[i]f
time
course
842-43.
noted
witness,
is
atten-
proceedings
brought
it
that the witness was an unbiased
witness,
tion
than the
party
appel-
of the court that a
has failed and the
other
wife,
accomplice,
comply
applicable discovery
alleged
place
with an
lant’s
an
at the
of the crime.
pursuant
appellant
rule or with
order issued
scene
thereto,
addition,
may
party
ordеr
Id. at
any prejudice was
murder,4
5-10-102(a)(2),
and section
first-
of the witness
lant’s eventual confrontation
murder,5
2,
article
degree
violates
section
the
testimony because
grand-jury
with his
3,
Accord-
of the Arkansas Constitution.
eight days that
“trial
was unaware for
Maiden,
consti-
ing to
the “same conduct
story from
which
[a witness]
it had heard a
capital
first-degree
murder and
mur-
tutes
the one he
totally inconsistent with
der,”
only
and the
difference between the
824,
grand jury.”
the
Id. at
796
had told
capital
two offenses is that
murder and
at 848.
S.W.2d
first-degree
prescribe
murder
different
case, Emerson testified on
In the instant
argues
punishments.
9,
moved for
April
and counsel for Maiden
him
statutory
equal protec-
scheme denies
day.
denying
next
After
mistrial the
of
law becausе it “creates two
tion
mistrial, court imme-
motion for
similarly-situated
classes of
individuals
rein-
diately
ruling
effectuated its
in
arbitrary charging
that differ
deci-
the statements
jury regarding
structed the
sions.”
its
of counsel. The State then had
admit
rejected
This court has
the claim that
disclose,
in
failure to
on the record and
statutory
arbitrary
our
scheme creates
jury,
and Emerson was re-
front of
in
Pro
Equal
classification
violation of
further examination
both
called for
tection Clause of the United States Consti
Further,
sides.
Emerson was not an unbi-
State,
379,
tution. See Rankin v.
329 Ark.
in
ased witness like the witness
Clements.
(1997);
son causes the death of Ark.Code another Ark.Code Ann. 5-10- 5-10-101(a)(4). 102(a)(2). §Ann.
275
one,
protec
a
process
equal
of due
or
constitutional
when the appellant
denial
tion.
presents
citation
authority
no
to
or con
vincing
is
support,
apparent
and it
not
510, 621
at 488.
Id. at
S.W.2d
without further
argu
research that
issue
Maiden concedes that the
is
ment is well-taken. E.g., Hollis v.
law,
under
federal constitutional
settled
175, 179,
756,
55 S.W.3d
759
that
this
but he contends
court should
(2001).
that
Arkansas
conclude
Constitution
protection.
him higher
offers
level of
point
his fifth
on appeal, Maiden con-
asserts
this court
Specifically, Maiden
that
tends that the circuit court committed re-
overlapping statutory
should declare the
versible error when it ridiculed defense
3,
a violation of article
of
scheme
section
jury’s
counsel in the
presence. According
“guard
the Arkansas
and
Constitution6
Maiden,
to
court interrupted
circuit
prosecutorial discretion
against unfettered
defense counsel’s
cross-examination
resulting
arbitrary
in
decisions.”
Marlon Smith
admonish defense counsel
occasion,
provide
On
this court will
more
for
over”
“talking
the witness
made
and
protection under the Arkansas Constitu
extremely
unprofessional
harsh and
com-
that provided by
tion than
the federal ments, calling defense counsel’s intelli-
courts under the United States Constitu
gence
question. Although
into
ac-
Maiden
See,
v.
860
e.g.,
tion.
Polston
that
knowledges
object
he failed to
(2005).
201 S.W.3d
413
We
trial,
at
court’s comments
he asserts
in
pivotal inquiry
have stated that one
this
the comments prejudiced the
is
this
regard whether
court has tradition
against him and that the error is of the
ally viewed an
than the
differently
issue
type
by
that should be addressed
Id., 201
at
federal courts.
pursuant
court
exception pro-
the third
Maiden does not contend that
this court
vided in
v.
Wicks
traditionally
equal protection
has
viewed
S.W.2d 366
differently than the federal courts. Rath
support
er,
argument,
in
Maiden
11sof
In response,
the State
contends
jurisdictions
cites
cases in other
preserve any
Maiden failed to
error
state
have
rejected
which
courts
rea
appellate review because he did not con-
soning
Batchelder
hold
their
temporaneously object to
court’s state-
respective state constitutions were violated
Moreover, |1flthe
ments.
State maintains
with
overlapping criminal statutes
dif
fails to
demonstrate how
penalties.
fering
People Marcy,
See
comments,
court’s
which were directed at
(Colo.1981);
Hoang,
P.2d 69
State
both
counsel
well
defense
as
(1997);
Hawai'i
State v.
P.2d
trial,
throughout
as at some witnesses
Clements,
241 Kan.
Witness: Your the state say We cannot counsel], The Court: when he’s [Defense the circuit er ments court constituted say anything. don’t When talking, ror, let alone error na of such a serious anything. I’m talking, nobody says ture as to warrant review pursuant Five-year-old in a room with children out, As the State the circuit points Wicks. It person obey one can this. befud- not coun court did admonish defense people gone dles me that who have sel-it also cautioned the State and several prove can’t law school do it. Please “kindergarten witnesses to follow thе rule” yourselves capable obeying what a speaking. when someone else is More five-year-old can have do. Both sides over, the circuit comments were doing this. court’s Stop it. been maintain dig intended to the decorum and added.) (Emphasis nity proceeding. of the court Reversible contempo It is well settled that a an error occurs when unmerited rebuke objection raneous is required preserve gives jury impres the circuit court appeal, court has issue being sion that counsel is ridiculed. rule, recognized four to the exceptions McDaniel v. rk. 283 A ^exceptions. known as Wicks 732, 735 But this court will S.W.2d 256, 260-61, Springs v. reverse when court’s com not the circuit excep S.W.3d 686-87 These ments reveal mere irritation at counsel’s (1) court, in tions occur when a trial tactics. Id. at case, death-penalty bring fails 735-36. jury’s attention a to its matter essential itself; case, clearly consideration of the penalty death In this the circuit court was (2) keep reminding a trial court errs at a time when de- irritated that it had to counsel no knowledge fense has counsel and witnesses not to talk over each other, but, noted, object; error and thus no as the circuit opportunity previously just a trial court should intervene on its own not focused court’s statements were such, on defense counsel’s conduct. As that Maiden’s Daubert motion was untime- statements were not prejudicial more ly. Maiden contended that it timely was to the defense than to the State or its and that independent testing required witnesses. This court has stated that to determine the reliability of the State’s Judge presiding
[a] Circuit at a about the print. The circuit trial should not be a mere automaton on court made following ruling: bench, exerting no control over what The Court: The motion is denied. If goes on bеfore him. He should be more you have not made a timely request than a keeps moderator who order while for the palm print, it is unreasonable counsel do say they please what *14 for this Court to consider days before jury. before the It is duty to see not trial an objection to a palm print that only the trial proceeds in accor- the defense has not requested. Do law, dance with proceeds it you have any precedent for that at all? efficiently and effectively, and in keep- Defense ing Counsel: I have a justice. precedent with the ends of not allowing evidence that is shown to 679, 682, Fuller v. 217 Ark. be unreliable jury. before a Maiden has failed to demonstrate that the circuit court’s comments warrant reversal. The Court: I don’t need to have evi- point Maiden’s final on appeal is that the dence the independently analyzed. circuit court abused its discretion in failing do, and, therefore, You it would be- to conduct a hearing Daubert before ad- you, if you hoove wanted to have that mitting expert testimony palm about a evidence independently analyzed for print that was found on the vehicle in motion, the purpose your of to have which trial, the victim had been killed. At brought the motion at a time that Sossamon, Wesley latent-print examiner would have allowed the Court the rea- Lab,
with the Arkansas State Crime testi- opportunity sonable your to consider fied that the print belonged to Maiden. Otherwise, you motion. run the risk of Appellant argues appeal that this court ruling Court the motion is should reverse and remand because the untimely, which is the ruling. Court’s palm print physical sole evidence —the Next issue? against him—was introduced without re- view of reliability pro- the scientific appeal, this Maiden does not cedurеs supporting that evidence. assign error to the circuit ruling court’s that his motion in untimely.
The limine was responds State that this court Rather, need not he contends that the address Maiden’s circuit court argument be | cause abused its he discretion in get ruling failing on the to conduct a ^failed hearing. merits of the issue. Daubert agree. We On Because the April timeliness 1, 2013, eight days before the trial Maiden’s motion was the began, issue the appellant filed a motion in limine to ex circuit court ruling, considered its we clude expert testimony relating to the cannot reach the merits of argu Maiden’s palm print pursuant Appel appeal. Daubert. ment on E.g., Phillips v. lant 578, 580, maintained that the did not 334 Ark. 976 S.W.2d comport curiam). with Daubert and was scientifical (per Failure to obtain a ly unreliable. At hearing ruling omnibus on an issue at the trial level pre 4, 2013, April held on the State contended cludes appeal. E.g., rеview on Travis v. lies, any- and what—if prejudice where the 269 S.W.3d reasonably preju- cure this thing —could egregious facts less than the dice. Under noted, Maiden was sen- previously As us, court in Clements v. case before this Pursuant imprisonment. to life tenced (1990), 3(i) Rule Supreme Court Arkansas 4— declaring a mis- nothing held that short (2013), reviewed for record has been majority warranted. The has trial was motions, requests objections, all rejecting guidance the clear erred Maiden, and no adversely to were decided worthy decision. error was found. prejudicial prejudice majority believes that Affirmed. Hout’s half-hearted mea could be cured cross-examination, and an culpa, additional HART, JJ., dissent. BAKER and disregard admonishment HART, Justice, LINKER JOSEPHINE belief opening statement. This defense’s dissenting. grasp failure to majority’s reflects the prosecu- damage full extent of the event in this trial oc-
The watershed *15 had on Maiden’s tion’s unlawful conduct Hout, prosecutor, when the John curred defense. the fact willfully from the defense withheld completely Trenell Emerson had
that prosecu- In that the only the statement story prepared and was to changed defense, his to the provided tion the testify eyewitness that he was an to he did not witness the murder. stated that fla- disputes No one that Hout murder. attorneys to craft a de- This led Maiden’s Arkansas Rule of Criminal grantly violated they sought fense in which to establish 17.1(a)(ii)1 requires 17.1. Rule identity Ky- Procedure reasonable doubt as to the any the State to disclose the substance laying shooter. out this laus Williams’s statement, by a defendant or oral statement made Maiden’s opening defense 17.1(d)2 requires Rule dis- codefendant. asserted that no repeatedly trial counsel | ^exculpatory evidence. The they closure of all that testify one would at trial had express ruling an circuit cоurt made witnessed the murder. prosecutor’s wrongful.
the
conduct was
testimony destroyed the
Emerson’s
the defense built its
emphasize
upon
that no foundation
which
important
It is also
to
theory
the case.
It left Maiden’s de-
prosecution’s
the
conduct
disputes
one
12sof
scrambling
team
to re-tool its de-
to Maiden. The circuit
fense
prejudicial
Moreover,
perhaps
and
finding
on fense midtrial.
express
court likewise made
testimony
Emerson’s
de-
important,
with this case more
problem
issue. The
stroyed any credibility Maiden’s defense
majority’s
in the
assessment of
arises
19.4,
(d) Subject
provisions
Prosecuting attorney’s obligations
2.
to the
of Rule
shall, promptly upon
prosecuting attorney
(a)
the
Subject
provisions of Rules 17.5
to the
matter,
19.4,
discovering
attorney
disclose to defense
prosecuting
shall dis-
the
and
counsel,
timely
upon
request,
any
close to defense
or information within
сounsel
material
control,
following
which
material and information
knowledge, possession, or
which
his
control,
may
possession,
come within the
is or
negate
guilt of the defendant as to
tends to
knowledge
prosecuting attorney:
charged
tend to reduce
the offense
or would
punishment
therefor.
(ii) any
recorded statements and
written or
made
the substance of
oral statements
codefendant;
or a
the defendant
jury.
troubling
during
team had with the
It is
that Maiden’s
majority ignores
significance
that the
defense
had
team
been ambushed.
proceed-
fact.
In federal habeas
bar,
is like
Clements
the case
because
defense,
ings, merely promising
an both cases involved initial witness state-
defense, in opening
of a
statement
aspect
ments to
been
police
provided
had
defense,
failing to deliver that
or as-
In both
defense.
cases those witness
held
pect of that defense has been
to be
statements indicated that the
had
witness
counsel, necessitating
ineffectiveness of
Likewise,
no vital evidence.
wit-
star
Hampton
new trial. United States ex rel.
cases,
Emerson,
nesses in both
Vainer and
(7th
Leibach,
Cir.2003);
v.
crime was witness. codefendant, wife,
Clements’s testified present
that she was when her husband Ray Conway
murdered Police Officer Nob-
litt. She heard Clements threaten Noblitt gunshots
and she heard the that cost the App. us, officer his life. In the case before III, RULE, Appellant Herbert C. to testify witness that he saw Maiden shoot Williams. Fur-
ther, it while is true this court states Arkansas, Appellee. STATE did not see Vainer con- No. CR-13-1087. jury testimony with his grand fronted until |9Rtestified, days eight after he had it is Appeals Court of Arkansas. important provided to note that the State June days grand jury two after us, Vainer testified. In the case before provided
Hout never state- Emerson’s It
ments defense. became obvious