Anderson v. State

2011 Ark. 461

385 S.W.3d 214

Ricky Ray ANDERSON, Appellant

v.STATE of Arkansas, Appellee.

No. CR 11–331.

Supreme Court of Arkansas.

Nov. 3, 2011.

Woods, Snively, Atwell Law Firm, by: Nick Churchill, Fayetteville, for appellant.

Dustin McDaniel, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., for appellee.

JIM HANNAH, Chief Justice.

Appellant Ricky Ray Anderson was convicted of capital murder and sentenced to a term of life imprisonment. On appeal, Anderson contends that the circuit court (1) erred in denying his motion for directed verdict because there was insufficient evidence to support a conviction for capital murder; (2) erred in giving the jury an unconstitutional instruction that shifted the State's burden of proof to the defendant; (3) abused its discretion in allowing testimony that the victim was pregnant; (4) abused its discretion in admitting State's Exhibits 9–16, photographs of the crime scene; and (5) erred in denying his motion to suppress custodial statements he made before Miranda warnings were given. Because this is a criminal appeal in which a term of life imprisonment was imposed, our jurisdiction is pursuant to Arkansas Supreme Court Rule 1–2(a)(2) (2011). We affirm.

The following facts are adduced from the testimony and evidence presented at trial. On the evening of June 26, 2009, Kay Ulmer had dinner with her daughter, Jill Ulmer. At about 5:00 p.m. that day, Anderson called Kay and told her that he was in Oklahoma City and on his way to a hospital because he had overdosed. Jill and Anderson had previously shared the Fayetteville apartment where Jill continued to live. At 10:32 p.m., Jill placed a 911 call and reported to the dispatcher that Anderson was in her apartment parking lot and that she had a protection order against him. The dispatcher remained on the line with Jill while officers were dispatched to the apartment. The call ended with a scream. The dispatcher called back Jill's number twice, but no one answered.

Officer Kenneth Willyard and Corporal Chris Scherrey were the first two police officers to arrive at the scene. From the parking lot, Willyard heard a scream and then saw an apartment door slam shut. Willyard and Scherrey raced up the stairs to the apartment. Both Willyard and Scherrey tried to kick in the apartment door; Scherrey also attempted to open the door with his shoulder. Neither of the officers was able to open the door. Very loud screaming continued to come from inside the apartment. Willyard kicked the glass out of a window near the door and moved curtains and blinds out of the way so he could see inside the apartment. Willyard saw Anderson squatting or kneeling behind a couch, with only his head visible above the back of the couch. Willyard testified that Anderson appeared to be fighting with a woman. Scherrey pulled out his Taser and shot, aiming at Anderson's shoulder. Willyard had also pulled out his Taser and pointed it at Anderson when he saw Anderson raise a knife in his right hand and bring it down forcefully. Willyard then dropped his Taser, yelled “knife,” drew his pistol, and fired. He said that he could not get a good shot at Anderson because he could see only a small portion of Anderson's head above the couch. Willyard testified that Anderson continued to make stabbing motions, while the woman continued to scream, so he decided to aim his pistol at the area of the couch where he believed Anderson to be. Scherrey testified that he also fired his pistol at Anderson and aimed at Anderson's shoulder and head. After several shots were fired, the screaming stopped. Scherrey cleared glass from the window, crawled into the apartment, and opened the front door for Willyard. Willyard walked toward the couch and saw a woman, later identified as Jill Ulmer, lying on the floor. Anderson was taken into custody, handcuffed, and walked out of the apartment. Willyard checked on Jill and was unable to find a pulse.

Anderson contends that the circuit court erred in denying his motion for directed verdict because the State failed to present sufficient evidence to support a conviction for capital murder. On appeal, we treat a motion for directed verdict as a challenge to the sufficiency of the evidence. E.g., Camp v. State, 2011 Ark. 155, 381 S.W.3d 11. In reviewing a challenge to the sufficiency of the evidence, this court determines whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. This court views the evidence in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. Id. “A person commits capital murder if [w]ith the premeditated and deliberated purpose of causing the death of another person, the person causes the death of any person.” Ark.Code Ann. § 5–10–101(a)(4) (Supp.2007).

At trial, Dr. Adam Craig, an associate medical examiner with the Arkansas State Crime Lab, testified that during the autopsy he performed, he found 27 stab wounds to Jill's body and a gunshot wound to her head. Among the wounds Jill suffered was a cut to her common iliac artery and vein. Dr. Craig testified that the common iliac artery is a “high pressure blood vessel” that squirts blood when cut. Dr. Craig explained that the vessel comes directly off of the aorta and that it bleeds “really quickly” when cut. He testified that, because the vessel is so deep in the abdominal cavity, medical personnel and a surgical team would be required to open the abdomen and repair the cut. According to Dr. Craig, it would be “impossible” to treat the cut “in the field.” Further, he stated that, in his opinion, a person with a cut common iliac artery would survive “probably less than five minutes” unless a surgical team was present to provide treatment. On cross-examination, he testified that it would be “stretching it” to say that it was possible that someone suffering from a cut common iliac artery could live for ten minutes. Dr. Craig also testified that doing things such as changing the position of Jill's body or using anti-shock trousers would have had little effect on stopping the bleeding. He stated that, even if someone trained in treating abdominal wounds had been present at the crime scene, Jill would not have survived without surgery. Dr. Craig testified that, while Jill's death was caused by a gunshot wound to the head, it was his opinion that Jill would have also died as a result of the wound to her common iliac artery.

Anderson states that the immediate cause of Jill's death was a bullet that was fired by a police officer. He contends that the State failed to present substantial evidence to compel the conclusion that his conduct was clearly sufficient to cause the death of Jill, as is required by Arkansas Code Annotated section 5–2–205 (Repl.2006). He claims that the jury had to speculate as to what would have happened had a bullet not struck Jill in the head and killed her.

Our law is well settled that, where there are concurrent causes of death, conduct which hastens or contributes to a person's death is a cause of death. E.g., Jefferson v. State, 372 Ark. 307, 276 S.W.3d 214 (2008). Causation may be found when the result would not have occurred but for the conduct of the defendant operating either alone or concurrently with another cause unless the concurrent cause was clearly sufficient to produce the result and the conduct of the defendant was clearly insufficient to produce the result. Ark.Code Ann. § 5–2–205.

In this case, Anderson's stabbing of Jill brought about the officers' use of deadly force that killed Jill. Had Anderson not been stabbing Jill, the officers would not have attempted to end Anderson's attack on Jill by using deadly force. The concurrent cause—the gunshot wound—was clearly sufficient to cause Jill's death, but Anderson's conduct—stabbing Jill—was not clearly insufficient to cause Jill's death. Dr. Craig testified that it was his belief that Jill would not have survived the wound to her common iliac artery. He testified that he formed his opinion based on his medical knowledge regarding the volume of blood in the body, the typical blood pressure in the arteries and veins, and other cases “where similar arteries had been cut and they knew how long it took them to bleed to death.”

Ultimately, the resolution of Anderson's causation challenge rests on the credibility of Dr. Craig's testimony that Jill would have died from the wound to her common iliac artery. The weight given to the evidence, even expert testimony, is a matter for the jury. E.g., Jackson v. State, 2009 Ark. 336, 321 S.W.3d 260. It was for the jury to determine whether, as Dr. Craig testified, Jill would not have survived the cut to her common iliac artery. See, e.g., Windsor v. State, 338 Ark. 649, 1 S.W.3d 20 (1999) (stating that where the medical examiner testifies that any of multiple injuries alone could have caused the victim's death, it was for the jury to decide the cause of the victim's death). The circuit court did not err in denying Anderson's motion for directed verdict.¹

Anderson next contends that AMI Crim.2d 603, the causation instruction given by the circuit court,² unconstitutionally shifted the burden of proof to the defendant by requiring him to show that his actions were “clearly insufficient” to cause the victim's death. The State contends that Anderson's argument is not preserved for appellate review. The State is correct.

Before the court instructed the jury during the guilt phase of the trial, Anderson objected to the causation instruction on the basis that it applies only to cases involving felony murder, and not to premeditated and deliberated murder. The circuit court overruled the objection, and Anderson made no further challenge to the instruction. On appeal, however, Anderson abandons the argument he made at trial and instead asserts his...