Andrew SASSER v. STATE of Arkansas
CR 94-933
Supreme Court of Arkansas
July 17, 1995
902 S.W.2d 773
Winstоn Bryant, Att‘y Gen., by: J. Brent Standridge, Asst. Att‘y Gen., for appellee.
DONALD L. CORBIN, Justice. Appellant, Andrew Sasser, appeals the judgment and commitment order of the Miller County Circuit Court filed May 4, 1994 convicting him of capital felony murder,
BACKGROUND FACTS
The state charged appellant with capital felony murder for causing the death of Ms. Jo Ann Kennedy, on or about July 12, 1993, in the course of or in immediate flight from his commission or attempt to commit the victim‘s rape or kidnapping under circumstances manifesting extreme indifference to the value of human life. At the time of her death, the victim was working alone as the store clerk at the E-Z Mart in Garland (also referred to in the record as “Garland City“). The autopsy report showed the victim died of multiple stab and cutting wounds and blunt force head injuries, and that no anal or vaginal injury or any spermatozoa were present.
Following voir dire and immediately preceding the trial‘s commencement, the state announced, in camera, that it intended to offer evidence of prior crimes committed by appellant in 1988 at an E-Z Mart in Lewisville against its store clerk, Ms. Jackie Carter, for which he was convicted of second degree battery, kidnapping and rаpe. The state relied upon
At the jury trial, appellant‘s guilty plea was not accepted by the trial court due to the state‘s refusal to waive the death penalty. At the trial‘s commencement, appellant stipulated that he caused the death of the victim while in the possession of and while driving his brother‘s pickup truck. Other stipulated facts included: appellant stopped at the E-Z Mart in Garland City two or three times to buy chips and to use the telephone between the hours of 3:00 p.m. on July 11, 1993 and approximately 12:00 a.m. on July 12, 1993; the victim was discovered nude from the waist down; and the pants and panties found in the E-Z Mart‘s men‘s bathroom were hers.
The state‘s first witness at trial, Jeanice Pree, testified she and her mother, Gloria Jean Williams, lived across the street from the Garland City E-Z Mart. Pree testified she had an unobstructed view of the store. Pree testified she also worked at the E-Z Mart and believed its front door was locked at 12:00 midnight and thereafter customers were required to use a drive-through window. Pree testified she was sitting on her couch watching television when she looked out her window, saw the victim and a man behind the store counter and assumed he was a friend of the victim. Pree testified she looked back and saw the victim and the man coming to the store‘s front door. Pree testified she could tell the victim was being forced to come out because it looked like her hands were behind her back. Pree testified she telephoned 911. The police dispatcher testified he received Pree‘s 911 telephone call at approximately 12:46 a.m. on July 12, 1993, and that she stated “there was a woman that she believеd was being killed at the E-Z Mart, being drug through the window.”
Williams testified she watched the E-Z Mart from the window in her house while her daughter (Pree) telephoned 911. Williams testified she saw a truck leave the store, and then the victim “came around from the side of the E-Z Mart. She reached
Miller County Sheriff‘s Deputy Jim Nicholas testified the victim was found lying just outside the E-Z Mart door on the sidewalk, and appeared to be dead. Nicholas testified the victim was nude from the waist down, and what appeared to be her panties and pants were located in the men‘s restroom of the store. Nicholas testified one of the victim‘s shoes was in the front aisle and one behind the counter, and a large wad of hair was found behind the cash register near the drive-through window. Nicholas testified blood spatters were observed at the drive-through window, on the store‘s “outside aisles,” counter, and on the men‘s bathroom wall. Nicholas testified the drive-through window was open. Numerous items of physical evidence and photographs were introduced into evidence through thе testimony of Nicholas and Miller County Sheriff‘s Department Investigator Toby Giles, including a photograph of the drive-through window and cash register area showing two plastic containers of nachos.
Arkansas State Police Investigator Robert Neal testified he and Miller County Sheriff H.L. Phillips interrogated appellant at the Lafayette County Sheriff‘s Office in Lewisville for approximately two hours beginning around 7:45 p.m., on July 12, 1993. Appellant‘s tape recorded statement and a transcript of the same were introduced at trial and provided as follows. Appellant stated he drove up to the window at the Garland City E-Z Mart and ordered nachos from the victim. He described the victim as a “lady . . . [who] had an attitude” and was angry because someone else had ordered nachos, then failed to pick up the order. Appellant stated the victim tried to sell him two orders of nachos, but he declined. Appellant stated they argued and the victim slammed the drive-through window on his hand. Appellant stated he jerked the window open whereupon the victim cut him with an knife-like object with a blade. Appellant stated he grabbed the victim and she jerked him through the drive-through window. Appellant stated they scuffled, moving from the drive-through window area, down the counter area, out into the store‘s interior, back to the store office at the rear of the store, and up to the potato chip rack at the front of the store. Appellant stated the victim opened the store‘s front door, they exited the store and the victim followed him to his pickup truсk, still fighting. Appellant stated he entered the vehicle and left.
Appellant stated he did not recall going into the E-Z Mart‘s
The state‘s final witness, Ms. Carter, testified appellant attacked and raped her on April 22, 1988 at the E-Z Mart Store in Lewisville. Carter testified she was the only employee on duty when appellant entered the store at approximately 1:00 a.m. and purchased cigarettes, returned fifteen minutes later and purchased a soft drink, then returned five minutes later, asked to use the telephone and stated he had had a wreck on his motorcycle. Carter testified appellant then stood in the store after stating he was waiting on his wife to pick him up. Carter testified that, at approximately 1:35 a.m., a truck drove up and appellant went outside to talk to its occupants. Carter testified she moved from behind the cash register and began putting up items in the freezer when appellant approached her from behind and hit her on the back of the head with a soft drink bottle. Carter testified she and appellant struggled and he сontinued to hit her, then forced her to a utility\bathroom located at the back of the store. Carter testified another man approached and appellant decided to take her out of the store. Carter testified appellant forced her out of the store, picked up his bicycle, and pushed Carter and the bicycle into an alley. Carter testified that, when the other man drove by, appellant forced her across the street, told her to pull down her clothes, pulled down his оwn clothes, and raped her. Carter testified appellant then told her he should not have done it and should kill her whereupon she begged him not to and agreed to say a truck had dropped her off and appellant had found her. Carter testified appellant forced her back to the store where the police were waiting. Carter testified that, when she gained the opportunity to speak privately to a policeman, she identified appellant as her attacker.
The state then rested and the defense presented no evidence. The jury returned a verdict of guilty; the verdict did not identify
ADMISSIBILITY OF CARTER‘S TESTIMONY
In admitting Cаrter‘s testimony, the trial court effectively made two separate evidentiary determinations: the first under
Appellant argues the trial court‘s ruling on the
Certainly the state‘s capital felony murder case against appellant was founded upon and strengthened by the stipulated fact thаt appellant killed the victim. However, as noted, the charged crime also required the state to prove beyond reasonable doubt
Conflicting evidence pertinent to the alleged kidnapping and attempted kidnapping predicate offenses was introduced when the testimonies of Ms. Pree and Ms. Williams are compared with appellant‘s custodial statement. Ambiguous evidence was admitted pertinent to the alleged rape and attempted rape predicate offenses inasmuch as the victim was discovered nude below the waist but the autopsy report showed no evidence of rape and appellant denied raping or attempting to rape the victim in his custodial statement.
Further, the state‘s case against appellant included circumstantial evidence of blood, hair, fiber, and other physical items introduced at trial as exhibits to various forensic reports prepared by the FBI and the State Crime Lab. Although appellant stipulated to the admissibility of these reports analyzing the circumstantial evidence, he did not stipulate as to the truthfulness of any conclusions or findings of fact contained therein.
On this record, we cannot conclude the state‘s capital felony murder case was “virtually a sure thing” at the time Carter took the witness stand. Therefore we reject appellant‘s first contention that the testimony was offered solely for prejudicial effect.
Next, appellant states the possible prejudice resulting from the erroneous admission of evidence is greater in death penalty cases. The conclusion he draws from this observation, apparently, is that Carter‘s testimony was offеred solely for its prejudicial effect because the state sought the death penalty in this case. Appellant‘s second contention fundamentally misinterprets
Finally, although appellant was entitled to a cautionary instruction to the jury limiting the purposes for which it should have considered Carter‘s testimony, his failure to request the instruction precludes our consideration of this argument on appеal. Lindsey v. State, 319 Ark. 132, 890 S.W.2d 584 (1994); White, 290 Ark. 130, 717 S.W.2d 784. Therefore we reject appellant‘s third and final contention that the testimony was offered solely for prejudicial effect.
As with other evidentiary determinations, the balancing of probative value against prejudicial effect is a matter left to the trial court‘s sound discretion. Neal, 320 Ark. 489, 898 S.W.2d 440; Robinson v. State, 314 Ark. 243, 861 S.W.2d 548 (1993). In this case, the trial court held Carter‘s testimony concerning appellant‘s 1988 crimes of second degree battery, kidnapping and rape was probative of appellant‘s intent and modus operandi in the present case under
The dissеnt contends the challenged testimony was inadmissible under
This court has repeatedly ruled that trial courts have broad discretion in deciding evidentiary issues, including the admissibility of evidence under
COMPLIANCE WITH RULE 4-3(h)
We conduct no comparative proportionality review with respect to the death penalty in this case. See Williams v. State, 321 Ark. 344, 902 S.W.2d 767 (1995). In accordance with
The judgment is affirmed.
HOLT, C.J., and DUDLEY and NEWBERN, JJ., dissent.
JACK HOLT, JR., Chief Justice, dissenting. I respectfully dissent. The sole question on appeal is whether the trial court abused its discretion by admitting testimony concerning other crimes committed by appellant Andrew Sasser against a convenience store operator some four years earlier to show modus operandi and intеnt. The trial court committed error in allowing this evidence under
Arkansas Rule of Evidence 404(b) provides as follows:
Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
For “other crimes” evidence to be admissible, it must have independent relevancy to the offense for which the defendant is standing trial, but it need not be tied to the list of permissible purposes delineated in the rule. Neal v. State, supra; see also White v. State, 290 Ark. 130, 711 S.W.2d 784 (1986). Admission of
Although the lower court properly examined the evidence on the basis of both rules, and even though the method of operation (modus operandi) as well as proof of intent or plan is a legitimate basis for introducing evidence of other crimes, the trial court need not have balanced the evidence under
This court recently examined the admission of other crimes for the purpose of establishing a mеthod of operation in Diffee v. State, supra. To introduce other unrelated acts to show a method of operation, two requirements must be met: “(1) both acts must be committed with the same or strikingly similar methodology; and (2) the methodology must be so unique that both acts can be attributed to one individual.” Diffee v. State, 319 Ark. at 675, 894 S.W.2d at 567 (citing Frensley v. State, 291 Ark. 268, 274, 724 S.W.2d 165, 169 (1987)); See also Edward J. Imwinkelreid, Uncharged Misconduct Evidence, §§ 3.10 to 3.12 (1984). Neither requirement was met in this instance.
The general purpose of showing a method of operation is to identify the accused as the perpetrator. See Diffee v. State, 319 Ark. at 675, 676, 894 S.W.2d at 568 (citing Imwinkelreid, supra). Here, Sasser stipulated to a number of facts involving the homicidе, including the fact that he caused Ms. Kennedy‘s death. There was no issue as to the identity of the perpetrator, and thus there was no necessity for proving a method of operation. Moreover, the incident involving Ms. Carter fails to meet the required elements for establishing modus operandi.
As noted by Professor Imwinkelreid, and as cited in Diffee, supra, the degree of similarity between the two incidents must be very strict in order to establish identity. Granted, the unre-
The second requirement, uniqueness of methodology, is clearly absent. For purposes of establishing a method of operation, the methodology used by the perpetrator must be so unique thаt it independently identifies the accused as the perpetrator. Courts and commentators have stated the methods must be “bizarre,” “highly characteristic,” “distinguishing,” . . . “exceptional,” “a fingerprint,” and other such terms as would single out one person as being the unmistakable assailant. Diffee v. State, 319 Ark. at 677, 894 S.W.2d at 568 (citing Imwinkelreid, supra.); See also Frensley v. State, supra. This case is distinguishable from Thrash v. State, supra, upon which the trial court relied in making its ruling. In that case, the defendants used wigs and particular disguises to rob a liquor store and a truck driver. The disguises provided an element of uniqueness that marked the defendants as the perpetrators of bоth crimes. Here, there is nothing unique or distinctive about the way Sasser carried out the crimes so as to justify the admission of the previous incident for purposes of establishing a method of operation.
Lastly, admission of the evidence to show plan or intent was also error, for this court cannot logically assume that, because Sasser had previously committed the offenses of second degree battery, rape, and kidnapping involving a convenience store clerk, that this constituted evidenсe of a plan or intent on his part to commit the murder of Ms. Kennedy. The facts in this case are unlike those in Brenk v. State, 311 Ark. 579, 847 S.W.2d 1 (1993), where the defendant was accused of killing his wife, dismembering her body, and leaving her torso in a cooler, which was found floating in Lake Norfolk. At trial, Brenk‘s former wife was allowed to testify that Brenk had tried to kill her and threatened her that he would kill her, cut her body to pieces, and scatter the remains. We held that, “given the similarity of the circumstances of [the two deaths], and the specific threats made to Jackie Brenk, although several years earlier,” the threats were admissible to
Here, the majority is wrong in concluding that there was sufficient similarity of circumstances or threats to permit Ms. Carter‘s testimony into evidence to show that Sasser had a plan or intent to murder Ms. Kennedy. Sadly enough, convenience stores, which are quite often open all night, are staffed by employees who are subjеct to robbery, attack, sexual assault, rape, and death. The victims are often threatened with death by their attackers in an attempt to ensure their silence. Neither Sasser‘s threats nor his actions, as previously discussed, were carried out under compellingly similar circumstances to support the inference of an intent to kill Ms. Kennedy. In my opinion, admission of the evidence on this basis was prejudicial error which necessitates a retrial.
DUDLEY and NEWBERN, JJ., join this dissent.
Notes
Character evidence not admissible to prove сonduct, exceptions — Other crimes. — . . . .
(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.