Anderson v. State

108 S.W.3d 592

Randy L. ANDERSON v. STATE of Arkansas.

No. CR 01-1131.

Supreme Court of Arkansas.

May 29, 2003.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Perroni & James Law Firm, by: Samuel A. Perroni and Janan Arnold Davis, Little Rock, for appellant.

Mark Pryor, Att'y Gen., by: Katherine Adams, Ass't Att'y Gen., Little Rock, for appellee.

ANNABELLE CLINTON IMBER, Justice.

Randy Landon Anderson was tried and convicted of the capital murder of John Clark "Pete" Emmerson, Jr., and sentenced to death. Appellant states five points on appeal, one of which is that there is no evidence the jury considered a stipulated mitigating factor in the sentencing phase of the trial. Because we find that prejudicial error occurred on this point, we reverse and remand the case for resentencing. Our jurisdiction is proper pursuant to Ark. Sup.Ct. R. 1-2(a)(2) (2002).

On June 1, 2000, Pete's estranged wife, Lauren Jasay Emmerson, her brother, Ricky Jasay, and two other friends, Randy Busti and Christopher Floriani, gathered at appellant's house to drink and shoot pool. Lauren also took some prescription medicine for muscle spasms and anxiety. When the combination of pills and alcohol caused her to pass out early in the evening, appellant put her to bed in his bedroom. Their relationship, however, was not romantic. Later that evening, Pete started spinning his pickup truck around in the field next to appellant's house. It was then that appellant went inside the house and brought out a shotgun. One witness heard him say, "[w]e got three options. I've got this gun and I got this knife or we can compromise." Pete drove away, heading toward his father's house; but, later he was seen running down the road because he had run out of gas. Appellant offered to give him some gas, so the two men went to appellant's shed and returned with a plastic jug. At that point, Pete started asking Ricky if his estranged wife, Lauren, was inside appellant's trailer. When Ricky would not respond, appellant intervened and told Pete that Ricky did not have to tell him anything. According to one witness, Pete jumped up, shook his finger in appellant's face and shouted: "Look, Randy, this ain't concerning you. It's between me and Rick. I just want to know if Lauren is inside. I want to talk to her."

Prior to the night of June 1, 2000, appellant had been told about Pete making threats against him because Pete assumed that appellant was having an affair with Lauren. Appellant also testified that two days earlier Pete had come over to his house and threatened to "kill me if he ever caught me with his wife." In relating the events that occurred on the night of the shooting, appellant testified as follows: Pete's argument with Ricky resumed after he told appellant to stay out of his business. Pete threatened to kill "every MF in here if I have to," and he tried to get into the house to see Lauren. Appellant barred him from getting into the house because he did not know what Pete would do to Lauren if he found her passed out on appellant's bed. Pete then called appellant out to the yard to fight. Appellant picked up his shotgun and followed Pete out to the driveway. When Pete turned suddenly and rushed him, appellant pulled the trigger. He could not remember firing the second shot, but he did remember moving the body because he was afraid Pete's father would see the body and kill him.

Barbara Snow testified that she and her boyfriend, Dale Adams, were in bed on the evening of the shooting incident when she received a call from appellant. Barbara rode with Dale to appellant's trailer. When they pulled up, she saw a large puddle of blood near the driveway. She recounted several statements that appellant made that night: "He said that he shot him in the, I mean, in the chest one time. And he said he was moaning and he said, `I finished him off. I shot him in the head.'" Barbara also testified to hearing the following conversation between appellant and her boyfriend, Dale: "[appellant] asked Dale, he said, `What to you think I'll get for this?' Dale said, `Man, twenty years or better.' He said, `I can do twenty.' ... [H]e picked up a knife and he said, `I can say he was coming after me and he, you know, it was self-defense.'"

Investigating officers testified that the body had been dragged almost fifty feet from the original place where the blood was found. Police found a folded pocketknife and glasses near the blood. The medical examiner confirmed that the victim was shot once in the stomach and once in the back of the head at a range of three to ten feet. According to the medical examiner, Pete would have lived three or four minutes had he not been shot the second time.

Sheriff Floyd White testified about Pete's tendency to become "turbulent" when he drank. Randy Busti testified that the pocketknife found with the glasses near the pool of blood looked like one he had seen near Pete earlier that day. Ricky Jasay also saw a knife in Pete's hand as he came up on the porch. Roger Amick, a psychiatrist, testified that the autopsy revealed Pete was intoxicated and had been drinking just before being shot.¹ Amick pointed out that Pete's emotional controls were impaired and his actions were unpredictable.

On appeal, appellant does not challenge the sufficiency of the evidence to support the jury's verdict in the guilt phase. Instead, he raises the following points on appeal: (1) ineffective assistance of counsel; (2) the circuit court erred by allowing the prosecutor to misstate the law and shift the burden of proof during voir dire, and by allowing a jury organized to return a verdict of death; (3) the circuit court erred in refusing proffered jury instructions on justification; (4) the evidence is insufficient to support the jury's finding of a statutory aggravating circumstance; and (5) the circuit court erred in imposing the death penalty when the jury failed to follow the statutory procedures during the sentencing phase and ignored a stipulated mitigating factor.

The State, in its examination of the record, pursuant to Ark. Sup.Ct. R. 4-3(h) (2002), determined that the circuit court violated Ark.Code Ann. § 16-89-125(c)(1987), by communicating with the jury other than in open court. During the jury's sentencing-phase deliberations, the court received a note from the jury containing one question. The court responded in writing with an answer that both the State and appellant agreed was the correct response to the jury's question. The State asserts it has rebutted the presumption of prejudice that arises from a violation of § 16-89-125(c), because the record reflects the substance of the circuit court's communication with the jury, appellant never objected to that substance, and the court never had any contact with the jury during deliberations. Atkinson v. State, 347 Ark. 336, 64 S.W.3d 259 (2002). We agree.

I. Shifting the Burden of Proof During Voir Dire

Appellant maintains on appeal that the prosecutor repeatedly violated the parameters and purposes of voir dire. Specifically, he contends that the prosecutor improperly shifted the burden of proof such that the court had an obligation to intervene and correctly instruct the potential jurors. We note at the outset that we hold prosecuting attorneys to a high standard because the State's attorney acts in a quasi-judicial capacity, and it is the prosecutor's duty to use fair, honorable, reasonable, and lawful means to secure a conviction in a fair and impartial trial. Williams v. State, 742 S.W.2d 932, 294 Ark. 345 (1988); Garza v. State, 735 S.W.2d 702, 293 Ark. 175 (1987); Floyd v. State, 278 Ark. 342, 645 S.W.2d 690 (1983); Mays v. State, 264 Ark. 353, 571 S.W.2d 429 (1978). We will not reverse the action of a trial court in matters pertaining to its control, supervision, and determination of the propriety of arguments of counsel in the absence of manifest abuse of discretion. Cook v State, 316 Ark. 384, 386-87, 872 S.W.2d 72, 73 (1994). Generally, such an error may be cured by a remedial instruction from the court. Id. (holding that "[a]t most, it was an attempt to shift the burden of proof, and we cannot say that the trial court erred in determining that the instruction [at the time] remedied that wrong." (emphasis added)).

Before we can examine the prosecutor's comments, we must consider whether the issue is properly before this court. The defense attorney did not object to the prosecutor's comments at the time, and a contemporaneous objection is generally required to preserve an issue for appeal, even a constitutional issue. Bader v. State, 344 Ark. 241, 40 S.W.3d 738 (2001); Christopher v. State, 340 Ark. 404, 10 S.W.3d 852 (2000). However, we have recognized four exceptions to the contemporaneous-objection rule, commonly referred to as the Wicks exceptions. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). The four Wicks exceptions are (1) when the trial court fails to bring to the jury's attention a matter essential to its consideration of the death penalty itself; (2) when defense counsel has no knowledge of the error and hence no opportunity to object; (3) when the error is so flagrant and so highly prejudicial in character as to make it the duty of the court on its own motion to have instructed the jury correctly; and (4) Ark. R. Evid. 103(d) provides that the appellate court is not precluded from taking notice of errors affecting substantial rights, although they were not brought to the attention of the trial court. Buckley v. State, 349 Ark. 53, 76 S.W.3d 825 (2002) (citing Wicks v. State, supra).

The issue in the instant case is the application of the third Wicks exception, that is, whether the prosecutor's comments during voir dire were "so flagrant and so highly prejudicial in character as to make it the duty of the court on its own motion to have instructed the jury not to consider the same." Wicks, 270 Ark. at 786, 606 S.W.2d at 370....