*1
of Arkansas
A.
WALLS STATE
Charles
v.
“Jack”
Hubert W. Jon Gen., Moll, Gen., Asst. Att’y by: Sandy Winston Att’y Bryant, for appellee. A. Charles Robert L. Appellant Brown, Justice. the cir- a sentence from given by Walls appeals "Jack" counts of and to five
cuit his guilty rape judge following plea The circuit judge contendereto one count rape. of nolo plea and four life terms in terms Walls to two forty-year sentenced states several Walls grounds to be served consecutively. prison, erred in that the circuit allowing a claim judge including appeal, evidence irrelevant for sentencing and then considering purposes of the for the murder Stocks family. to Walls’s relating culpability discretion, and an abuse of we that this was We with Walls agree reverse and remand for resentencing. leader who sexually was a scout Walls boy troop Jack four counts care. After he
molested under his pled guilty boys contest, two counts of and one count of no the boys raping were murder Hogan family solicitation to commit involving 22, 1998, circuit conducted a nol On January prossed. called boys At the hearing, sentencing hearing. their in some instances as witnesses and who were Walls’svictims that Walls It evolved at the hearing grandparents. parents
493 alcohol, and sex- introduced his victims weapons, pornography, ual acts The focal of the with him. point hearing actions, to the of Walls’s and the relating rapes particu- lar, on the lives of boys.
Our
law
that in the
sentencing
provides
sentencing
trial,
of the
evidence relevant
include vic
phase
sentencing may
evidence and statements. See Ark.
Ann.
Code
16—
tim-impact
§
statute
97-103(4)
1997).
further
(Supp.
provides
that relevant character evidence and evidence of
aggravating
be allowed.
circumstances
See Ark. Code Ann.
mitigating
may
&
Our
has
16-97-103(5)
(6).
caselaw
dealt with the
primarily
§
in the
evidence
context of a
relevancy
murder
victim-impact
See,
State,
79,
Noel
victim.
v.
331 Ark.
example, evi victim-impact dence that toll informs of the of the on the murder vic jury Tennessee, tim’s v. family. Citing U.S. 808 we Payne (1992), in Noel said that when evidence is unduly prejudi cial, it render the trial unfair and violate may fundamentally Due Process Clause. our
We that the circuit begin analysis noting *4 in he was error when twice overruled defense coun objections by sel and stated that the rules of evidence do not to apply sentencing or to evidence in hearings In victim-impact we particular. 16-97-103, that held the evidence listed in victim- including § evidence, “must be our rules of governed by admissibility exclusion; otherwise, and these would not con proceedings pass 408, 413, stitutional muster.” Hill v. 887 S.W.2d 275, 278 (1994).
We turn then whether was received and the circuit irrelevant weighed by was and judge sentencing whether resulted. Prior Walls’s prejudice sentencing hearing, victims, Stocks, of his Heath one had been of convicted murder- mother, father, his and sister. Heath ing was sen- pled guilty tenced to life without At Walls’s prison parole. on relevancy first grounds defense counsel objected his
hearing, Stocks, about Heath’s grandmother, of Dorothy to the testimony into background murders. Delving the Stocks family members, about the had asked family prosecutor murdered Heather, Heath’s and what and Barbara Stocks occupation Joe counsel sister, After defense objected, was like. and she involved at hearing, there was no answered that jury their deaths as far as the Stocks would “relate” added that she her to circuit allowed proceed. Heath. The judge effect on time on grounds a second relevancy Defense counsel objected Heath the last time she saw about Stocks’s testimony Dorothy overruled But the circuit judge again the murders. before were statements the basis that these on objection matters. and not evidentiary Harris, was called as Annie
Heath’s other grandmother, May Stocks, her Barbara She testified that daughter, the next witness. Heath and Walls in bed together that she had found had told her secret” that the “horrible Mrs. Harris told judge in her house. and his was Heath until he family gone. inside exploded, grew “hit him to be a told Heath he training She said that Walls for the same defense counsel objected pur- man.” At that point, on and said that this was “hearsay his as objection pose previous there was no to cross-examine on and that way hearsay” hearsay reminded The circuit on these assertions. the witness counsel that he was “not following colloquy defense jury.” he defense counsel that the circuit assured ensued where the relevant from the irrelevant: could separate understand that I am You’re to have to going The Court: law, information and the in the and that I will take what trained — that and use me and disseminate they give facts — I wanted to just Defense Counsel: — that. Part and discard what’s appropriate The Court: healing statement is for of the reason for a victim impact them to do this. and so I’m to allow going therapy, *5 like an idiot I didn’t want to look just Defense Counsel: here, and not say anything. sitting Judge, Mr. done client an excellent job, The Court: You’ve your Alexander. He described
The next called was Heath Stocks. witness that he how introduced him to alcohol and told Walls him. He also testified was eleven or twelve when Walls first raped that introduced him to him how to Walls taught pornography shoot at human The then asked Heath targets. prosecutor whether talked to him about At that Walls killing point, people.
defense counsel on the basis that this objected again victim-impact evidence had to do with solicitation to commit murder. nothing The that and controlled Walls prosecutor responded manipulated Heath. Defense counsel answered that he would like to move in limine to from into solicitation to prohibit prosecutor going murder because those related to the and had charges Hogan family been dismissed. The circuit and said Heath was judge interrupted a victim and that he would listen to whatever Walls did to Heath his life.” The circuit out that “impacted judge pointed had not asked about solicitation to murder or the prosecutor yet Hogans. that there were “two different cir- prosecutor injected about,
cumstances” she would be which was an obvious talking reference to Walls’sinvolvement murder of regarding potential and the actual murder Stockses. The Hogans added that she was allowed to into other “bad acts” as go part evidence. The discussion ended with the he would not include dismissed saying Walls’ssentence: charges Well, if to consider you’re going those Defense Counsel: n — n then we should
things, have we could have pled guilty Because, if everything. you’re to consider solicitation of going — — to, murder that we were that we didn’t then guilty plead Allen, The Court: Mr. are you assuming this Court then, would include sentencing, that have been dis- charges missed, and that’s not going happen. But I am entitled to know the mind-set of I these people. — — mean, choose,
am entitled I I if I’m entitled to know the mind-set of client. But the fact that he doesn’t your want to has say anything absolutely no on me. bearing *6 can things to to she testify if these are going But people them, to allow it. going it has I’m impacted relate to how up would not be included for that acts With the assurance uncharged would listen to but that the circuit judge sentencing purposes life, the continued. Heath’s sentencing hearing whatever impacted overruled, the defense counsel’s prosecu- After objection of Walls’ssolicitation elicited from Heath a vivid tor description more and an even recounting murder Hogans graphic murders. The essence of in the Stocks Walls’s involvement assassin. After that had trained Heath to be an was Walls testimony his homosexual relation- his mother and sister about Heath told Walls, he had done. According with he told Walls what ship Heath, which he “take care of the Walls told him to problem,” counsel, “kill it.” Defense' on cross-examina- to mean interpreted tion, murders in an blamed Walls for the whether Heath explored murders, not that committed the Walls. effort to establish Heath Marble, minister of the next called Robert Concord, as a witness. Reverend United Methodist Church on Marble testified that Heath told him two occasions Walls kill Defense counsel did not
had told him to his family. object this testimony. 4, 1998, the circuit sentenced Walls.
On February judge sentence, the made a statement Before judge lengthy pronouncing statement, Towards the end of his said: about case. I do not have to believe Heath Stocks’s testimony you he finest (sic) him to kill his to know that was your told victim, creation, and to know that most vulnerable perhaps that, in the he what him to be. I know you taught only became least, the deaths of Joe, are very you indirecdy responsible and Heather Stocks. Barbara of these followed this with a that “many
The circuit finding thereaf- men stalked the Shortly Hogans young [Walls].” sentence. ter the circuit judge pronounced
I. Objection Proper Before the merits of whether Walls’s addressing culpability *7 vic- Stocks murders was irrelevant unduly prejudicial evidence, we must determine whether the issue was tim-impact for our review. The State contends that this properly preserved evidence, times, at was allowed into evidence without objection, and, a it. as we cannot review We consequence, disagree.
We first consider it that the significant was conducted before a not a have We hearing judge, jury. times in both civil and criminal cases that the
emphasized many
of a
circumstances
bench trial are different with
to relevant
respect
evidence because a
is better
to sort out what is
equipped
State,
See,
to the issue at hand.
v.
Stewart
332 Ark.
pertinent
e.g.,
138,
311 Ark.
In
this
we are
reaching
not unmindful of two
recent cases where we held that a
is
contemporaneous objection
in order to
required
issues that were raised in a
preserve
appeal
State,
38,
motion in hmine. Slocumv.
325 Ark.
tested evidence is mentioned a bench during there is no risk becausea trial is ableto considerevidence its prejudice onlyfor properpurpose.
Stewart, 322 Ark. at at S.W.2d 796. added.) (Emphasis us,
In the case before defense counsel to the objected of Heath Stocks’s two con Counsel testimony grandmothers. Stocks,
tested the who was asked to testimony Dorothy give about the murdered Stocks mem- information family background to the of Annie Mae bers. Defense counsel objected testimony that Heath told her that was train- Harris when she testified Walls him to be a “hit man.” defense counsel ing Finally, objected him when the asked Heath whether Walls talked to had about Defense counsel victim killing argued impact people. to do with the dismissed solicitation-to-murder charges nothing effect, and moved in limineto that but the circuit judge responded that he would listen to whatever did to Heath that had an Walls on Heath’s fife. circuit ruling scope judge’s clear that he would allow as whatever Heath, Walls said or did to of whether it embraced the regardless solicited murders of the or the actual murders of the Hogans Stocks Under these circumstances where bench trial is family. made, involved where has been continuous ruling objec- *8 tions to the same on are not testimony relevancy grounds required. hold that the issue is for our review even We though preserved defense counsel did not to the later of Reverend object testimony Marble.
There is one final of this point concerning preservation issue. After the the circuit that he would all allow ruling by judge on Heath caused the any showing by rapes, defense counsel cross-examined Heath about Walls’s role in the so, Stocks murders. The is whether defense question by doing counsel waived to this evidence. We think not. In any objection case, an held we counsel did not waive an analogous plaintiffs made in a motion in limine use objection regarding marijuana by Fowler, the in a medical case. See Burnett v. plaintiff malpractice Fowler, 869 694 In the S.W.2d motion was (1994). overruled. After the counsel was to first ruling, plaintiffs present the to evidence of use the jury marijuana by plaintiff. jury verdict, returned a defendant’s and the moved for a new plaintiff trial, which the trial court on the basis that the evidence granted use had been too In marijuana prejudicial. holding plain tiff s first introduction of the did not constitute marijuana usage waiver of on the issue we said: “We see no reason appeal, why, settled, once the matter of has been either admissibility may party Fowler, Ark. at in evidence not use the question.” at 696. S.W.2d case the circuit judge’s ruling in the instant
Similarly, in the Stocks Walls’s role develop allowed counsel and defense door was open, murders. After ruling, could. the issue as best their client on they were obliged protect in this defense counsel regard. no waiver We see II. VictimImpact in involvement evidence of Walls’s turn then to whether
We We evidence. murders was relevant victim-impact the Stocks stated, reasons for that it was not. As already policy conclude A in a bench trials is clear. judge trials from distinguishing jury wheat from better able to evidentiary bench trial is separate her deci- in his or the chaff in what is relevant making deciding case, at one to the circuit In this judge sion. prosecutor argued involved, he should allow that because a was not jury point murders. The circuit to the Stocks testify grandmother that he the same theme and said on two occasions on picked up from what was irrelevant could the relevant evidence separate at one that he would not include dismissed offenses added point his sentence. circuit at the heart of our decision is that the
What lies today words, held for the Stocks his own Walls judge, by responsible that, least, murders. The said: “I know the very only *9 are for the deaths of Barbara indirectly Joe, responsible This, course, evi- Heather Stocks.” of very victim-impact that counsel to exclude but was thwarted dence Walls’s attempted Thus, for so. if it was and unduly prejudicial doing improper be and considered the circuit this evidence to allowed by judge, Walls’s sentence must be reversed. is testimony.
We focus on what victim-impact again proper course, This, of was a hearing rapes sentencing multiple to which The offenses described by Walls guilty. young boys pled their vile and But were sickening. multiple boys parents murders of the Stocks were not Walls’sguilty family part plea. murder with solicitation to commit
Walls had been with charged to the but those had been nol Hogan family, respect charges in association with Walls’s Walls pressed, apparently guilty pleas. had never been in connection with the Stocks charged family facts, evidence, murders. these the circuit heard as Despite judge evidence, that Walls controlled Heath as a hit man victim-impact and ordered him to murder his con- family. judge ultimately cluded that this was true.
We cannot sanction evidence of another crime as evidence. it legitimate is not relevant. victim-impact On Clearly, the issue of whether it was without unduly prejudicial, goes The State that Walls’scounsel made saying. no argues objection under Ark. R. Evid. 403 that the unfair of the prejudice of the Stocks murders its value as victim- outweighed probative evidence. We that an couched Rule agree objection made, 403 terms was not an to the con though objection judge’s is, sideration of dismissed offenses was offered. There clearly course, the that the circuit had stated that point previously the rules of evidence would not evidence. apply victim-impact Furthermore, we have considered in murder previously prejudice cases to be of the of what is relevant part analysis statute, evidence under the See, sentencing 16-97-103(4). e.g., § State, Noel v. Hicks v. also Tennessee, See v. supra; supra. Payne supra.
The State continues that the Stocks murders were relevant to
show the characterof Walls under
As
16-97-104(5).
authority,
§
States,
State cites us to
v.
Nichols United
In the case before the record not does reveal notice any defense counsel that the issue of Walls’s for the responsibility Stocks murders was to be tried to the circuit The record discloses a purposes. motion in limine only *10 under Ark. acts of a disclose other sexual pedophile the circuit stated the fact that Evid. There is also 404(b). R. in consider dismissed sohcitation-to-murder charges
he would not came in The Stocks murders solely connection with the Hogans. case sim- evidence. The Nichols
under the cloak of victim-impact issue. does not control this ply that the solicitation-
The State further contends evidence was admissible as an circumstance to-murder aggravating law, Hill v. under our State cites 16-97-103(6). sentencing § State, We held in Hill that evidence of a as authority. prior, supra, in the was admissible sentencing uncharged robbery attempt the same victim. following guilty plea robbery against phase, But we made it clear in Hill that such relevant evidence should Hill, come in “in the absence of 318 Ark. at only prejudice.” at 278 Pickens v. 887 S.W.2d (citing concluded in Hill that the evidence was
S. W.2d We (1987)). case, however, not to the defendant. In the instant we prejudicial Walls, cannot reach that same conclusion. without question, murders, the evidence of the Stocks for the reasons prejudiced stated. already
We hold that circuit abused his discretion when he this about the (1) allowed Stocks murders as testimony evidence, and he when held Walls (2) victim-impact responsible for those murders in his sentence. fixing
This issue into focus the really brings sharp protections criminal afforded defendants No matter how justice system. committed, the crimes it is an article of faith in reprehensible criminal law we do not sentence for crimes that have not been Nor should evidence be used as a proven.
vehicle for that Walls was an to the murder of testimony accessory the Stocks We how difficult a second family. recognize Nevertheless, will be for the victims and their families. if hearing all, to have credence at it criminal is must justice any system adhere to certain basic It is unfair in the extreme for principles. to consider of an sentencing judge uncharged, crime for under the of vic- sentencing purposes aegis
unproven testimony. tim-impact
Because the other issues raised for reversal are not to likely reoccur on we do not address them. resentencing,
Reversed and remanded. and dissent. JJ.,
Glaze, Corbin, Smith, with the majority I Justice, dissenting. disagree Lavenski R.Smith, that in reversal is warranted this case. The majority statement, that, “I considers the court’s know in the majority only least, are deaths of very Bar- indirectly responsible Joe, bara and Heather an Stocks” indication that court intended to sentence Walls for crimes. uncharged
The sentence indicates court sentenced actually imposed with the accordance law for the crimes he appellant admittedly did commit. five counts of and pleaded Appellant guilty rape no contest to a sixth count. All these offenses were rape commit- ted a minor decade. repetitively against boys nearly Appellant misused a of trust access and then position gain young boys them base and sexually Under our exploited despicable ways. criminal code Y is Class not less than rape felony by punishable ten more (10) and not than or life. years (40) The trial forty years court sentenced to four consecutive life terms and two appellant terms of Given the (40) heinous nature of the defend- forty years. ant’s confessed I cannot acts this sentence was of indicative say prejudice. with agrees certain majority appellant procedural However, necessitate reversal.
improprieties during
hearing
our cases are clear that
error
reversal
only
justifies
of
prejudicial
State,
trial court.
v.
The court’s statements the rules of evidence were regarding at best not artful at and worst misstatements of law. There is no as to the the rules evidence to the
question
sen-
applicability
Hill v.
bifurcated criminal trials.
do
They
apply.
tending phase
408, 413,
we stated in
Ark.
Neither of the court’s statements are for us to precise enough know with what the court ascribed to them but certainty meaning to the extent indicate that the rules of evidence would not they in this defendant’s were in error. apply sentencing hearing they However, it is from the record that the court did apparent apply the rules of evidence allOn occasions during hearing. appear- record, and, in the the court entertained when ing requested, ruled on issues where raised.1 Rather than an aban- evidentiary donment of the rules it is much more court plausible intended to the rules and victims and their fami- apply yet permit lies to themselves conse- express freely regarding negative of actions. The statute victim- quences appellant’s authorizing statements effects of permits testimony regarding victim, crime, crime on the the circumstances surrounding and the manner in which the crime was Ark. Code perpetrated.
Ann. 16-90-1112 (1987). This is constitutionally permissible. § “ Court, to the U.S. ‘asa According Supreme general proposition, conduct an broad in sentencing judge may appropriately inquiry unlimited either as to the kind of information he scope, largely consider, or the source from which it come.’” Nicholsv. may may States, 738, 747 United 511 U.S. United States v. (1994) (quoting Tucker, 443, 404 446 (1972). U.S.
Furthermore, it is not at all certain that the court made a definitive that the rules were not to be ruling If going applied. had doubt about the rules’ an
appellant any objection applicability would have been in order. are intended to Objections apprise 235, 239, Tr. Tr. Tr. Tr. Tr. Tr. 242-245, 255, 260, 265-266, 267-269, Tr. Tr. 271, 275-276, 283, 299-300, Tr. Tr. Tr. Tr. Tr. Tr. Tr. 323- 304-305, 314-315, 321-322, 327, Tr. Tr. Tr. 358-359, 397, 408-409, 423-424, Tr. Tr. and Tr. 442-443.
court of error in order to obtain an or to appropriate ruling pre- serve an Brown v. argument appeal.
S.W. 2d. 80 (1996). assumed that the rules Apparently, appellant be would as he continued to make on these applied objections same and on other issues grounds evidentiary subsequent these remarks the court.
I that the Stocks disagree Dorothy regarding Barbara, and Heather Stocks was Joe, irrelevant. The Stockses victim, were the immediate Heath Stocks. family appellant’s contends these Appellant was irrel- testimony concerning persons evant because are and were deceased not victims of the they appel- lant. The refers to went as follows: portion testimony appellant Let me ask about the Stocks particularly
Prosecutor: Joe family. Yes. Witness: son, Your Joe, was a college graduate.
Prosecutor: *13 Yes. Witness: As was Barbara.
Prosecutor: — Barbara Bonnie Gail is. Our daughter. No, Witness: Your is a daughter college graduate? Prosecutor: Yes. Witness: How were and Barbara employed?
Prosecutor: Joe — business, had a his own trucking Witness: Joe Barbara held down two jobs. She worked at the school, worked, and she also at the Lonoke this, Extension County Office. And to do Joe hard, did, too, worked awful and Barbara their children with the best that provide they could furnish them. will, If tell me a little bit about Heather.
Prosecutor: Heather was an exceptionally bright girl. Witness: —She Honor, Your could we approach?
Mr. Alexander: Yes. The Court: of the information related to one
This testimony background no mention of the life. The witness made victim’s family deaths. made no effort to Stockses’ She disparage appellant family but recounted make merely family history help meaningful had been victim’s That victim experience. particular raped nine He also abused over at least by repeatedly years. appellant on own behalf and was to cross-examination. testified his subject and witness Based this Stocks Dorothy upon family background, Annie Mae Harris testified about how the victim suffered for discern, of he and how the reasons could not how changed they the suffered as the victim tried to the burden of severe family carry he dared to mention. Their abuse not and could not himself bring was relevant to to the extent it testimony appellant’s related to familial from Walls’s directly flowing consequences context, sexual violation of their Given this I cannot grandson. say the trial abused his discretion allowing background testimony.
It is from record in this case that apparent appellant’s was handled less than both bench sentencing hearing optimally notes, and bar. did counsel not as the Appellant’s object, majority from Marble Reverend Stockses’ regarding deaths. own counsel’s cross-examination Additionally, appellant’s Heath of victim Stocks deals with issue directly Stockses’ murders. Numerous other times responsibility inadmissible evidence was entered without objection. potentially court, In order to reversal of trial carries gain appellant burden of that the trial court committed demonstrating prejudicial therefore, error. I do not believe I he has done so. respectfully *14 dissent. JJ., join. Corbin,
Glaze