Mackrell v. State

2022 Ark. 93

643 S.W.3d 12

Tacori MACKRELL, Appellant

v.STATE of Arkansas, Appellee

No. CR-21-27

Supreme Court of Arkansas.

Opinion Delivered: April 21, 2022

James Law Firm, by: William O. "Bill" James, Jr., Little Rock, and Ashleigh N. Dyer; and Jeff Rosenzweig, for appellant.

Leslie Rutledge, Att'y Gen., by: Christian Harris, Ass't Att'y Gen.; and Amy Collis, Law Student Admitted to Practice Pursuant to Rule XV of the Rules Governing Admission of the Bar of the Supreme Court under the Supervision of Darnisa Evans Johnson, Dep. Att'y Gen., for appellee.

KAREN R. BAKER, Associate Justice

In October 2020, appellant Tacori Mackrell was convicted by a Faulkner County Circuit Court jury of capital murder, kidnapping, aggravated robbery, and theft of property. He was sentenced to consecutive sentences of life imprisonment, 360 months’ imprisonment, 480 months’ imprisonment, and 60 months’ imprisonment. On appeal, Mackrell argues that the circuit court should have granted (1) his proposed jury instructions regarding lack of criminal responsibility; (2) his motion to prohibit the State from introducing prejudicial photographs; (3) his motion to prevent the prosecution from claiming to represent "the people"; and (4) his motion for a mistrial when the prosecution told the jury that Mackrell never once said he was sorry. Because this case involves a sentence of life imprisonment, jurisdiction is properly in this court pursuant to Arkansas Supreme Court Rule 1–2(a)(2). We affirm.

Because Mackrell does not challenge the sufficiency of the evidence, only a brief recitation of the facts is necessary. On July 7, 2018, Mackrell and his cousin, Robert Smith, traveled with Mackrell's aunt from Pine Bluff to Conway. Mackrell testified that on the day in question, he smoked PCP and marijuana. While waiting on his aunt to play bingo, Mackrell and Smith drove her vehicle over to Conway Commons where Mackrell saw the victim, Elvia Fragstein. He testified that, when "I seen Ms. Fragstein, we had said, well we might as well get us one." Mackrell testified that when Fragstein entered her car, he entered the driver's-side back seat. Mackrell testified that he could not recall what was said but could imagine that he said "give me the car and ... I can't remember exact words but I know she probably said no. So that's when I took it upon myself to hit her upside the head." After Mackrell hit Fragstein with his fist "she kind of balled up and that's when I leaned between the ... head rest ... and uh, grabbed her in a choke lock." Mackrell testified that as he was bringing her to the back seat, she struggled and then he felt her body go limp. Mackrell testified that after tying Fragstein up with belts, he struck her with his fist. Mackrell and Smith then traveled in Fragstein's vehicle to Pine Bluff. Mackrell decided to dump Fragstein's body, who had not moved or made a sound since they left Conway, on farmland outside of Pine Bluff. They hid Fragstein's vehicle behind a house belonging to a friend of Smith's sister.

Fragstein's decomposing body was discovered in a ditch in rural Jefferson County on July 11, 2018. Dr. Steven Erickson, deputy chief medical examiner at the Arkansas State Crime Laboratory, testified that Fragstein was identified through her dental records. Dr. Erickson testified that Fragstein's body was subject to animal predation and that she "had extensive active insect larva infestation on her body." Dr. Erickson testified that Fragstein had several broken ribs and had "crushing compressive neck trauma." He explained that Fragstein's death was caused by "a multifactorial, prolonged, severe assault."

Mackrell was convicted and sentenced as set forth above and now appeals.

I. Jury Instructions

For his first point on appeal, Mackrell argues that the circuit court abused its discretion in refusing his proposed jury instructions, AMI Crim. 2d 609 and 610, regarding lack of criminal responsibility. A circuit court's ruling on whether to submit a jury instruction will not be reversed absent an abuse of discretion. Grillot v. State , 353 Ark. 294, 318, 107 S.W.3d 136, 150 (2003). In reviewing the propriety of giving a jury instruction, the issue is not one of sufficiency; rather, the issue is whether the slightest evidence supports the instruction. Id. at 320, 107 S.W.3d at 152.

Mackrell sought to invoke the affirmative defense of lack of criminal responsibility pursuant to Ark. Code Ann. § 5-2-312 (Supp. 2017). Section 5-2-301(6) (Supp. 2017) states that

"[l]lack of criminal responsibility" means that due to a mental disease or defect a defendant lacked the capacity at the time of the alleged offense to either:

(A) Appreciate the criminality of his or her conduct; or

(B) Conform his or her conduct to the requirements of the law[.]

Section 5-2-301(7)(A) provides that

"[m]ental disease or defect" means a:

(i) Substantial disorder of thought, mood, perception, orientation, or memory that grossly impairs judgment, behavior, capacity to recognize reality, or ability to meet the ordinary demands of life;

(ii) State of significantly subaverage general intellectual functioning existing concurrently with a defect of adaptive behavior that developed during the developmental period; or

(iii) Significant impairment in cognitive functioning acquired as a direct consequence of a brain injury or resulting from a progressively deteriorating neurological condition.

(B) As used in the Arkansas Criminal Code, "mental disease or defect" does not include an abnormality manifested only by:

(i) Repeated criminal or otherwise antisocial conduct; (ii) Continuous or noncontinuous periods of intoxication, as defined in § 5-2-207(b)(1), caused by a substance such as alcohol or a drug; or

(iii) Dependence upon or addiction to any substance such as alcohol or a drug[.]

Relying on AMI Crim. 2d 609, Lack of Criminal Responsibility Due to Mental Disease or Defect, Mackrell proffered the following jury instruction:

Tacori Mackrell asserts the affirmative defense of lack of criminal responsibility due to mental disease or defect. If, after considering all the evidence, you are convinced beyond a reasonable doubt that [Mackrell] engaged in the conduct alleged to constitute the offenses, you should then consider the defense of lack of criminal responsibility.

A person is not criminally responsible for his conduct if at the time of that conduct, as a result of mental disease or mental defect, he lacked the capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.

Tacori Mackrell has the burden of proving the defense by a preponderance of the evidence, unless the defense is so proved by other evidence in the case. "Preponderance of the evidence" means the greater weight of evidence. The greater weight of evidence is not necessarily established by the greater number of witnesses testifying to any fact or state of facts. It is the evidence which, when weighed with that opposed to it, has more convincing force and is more probably true and accurate. If the evidence with regard to this defense appears equally balanced, or if you cannot say upon which side it weighs heavier, then the defense has not been established.

If you find that this defense has been established then you must find Tacori Mackrell not guilty on the ground of lack of criminal responsibility. Whatever may be your finding as to this defense, you are reminded that the state still has the burden of establishing the guilt of Tacori Mackrell upon the whole case beyond a reasonable doubt.

If you find Tacori Mackrell not guilty on the ground of lack of criminal responsibility, the court will conduct a hearing. If the court determines that he is no longer affected by mental disease or defect, the court will immediately discharge him. If the court determines that he remains affected by mental disease or defect, the court will order the defendant committed to the custody of the Department of Health and Human Services for an examination by a psychiatrist or licensed psychologist. Tacori Mackrell will not be released from custody unless it is determined that his release would not create a substantial risk of bodily injury to another person or serious damage to property of another person.

Definitions

"Intoxication is a disturbance of a person's mental or physical capacities as a result of taking alcohol or drugs or other substances into the body.

"Lack of criminal responsibility" means that due to a mental disease or defect a defendant lacked the capacity at the time of the alleged offense to either:

(A) appreciate the criminality of his conduct; or

(B) conform his conduct to the requirements of the law.

"Mental disease or defect" refers to (a substantial disorder of thought, mood, perception, orientation, or memory that grossly impairs judgment, behavior, capacity to recognize reality, or ability to meet the ordinary demands of life) (or) (having a state of significantly subaverage general intellectual functioning existing concurrently with defects of adaptive behavior which developed during the developmental period) (or) (a significant impairment in cognitive functioning acquired as a direct consequence of a brain injury or resulting from a progressively deteriorating neurological condition). "Mental disease or defect" does not include (an abnormality manifested only by repeated criminal or otherwise antisocial conduct) (an abnormality manifested only by continuous or noncontinuous periods of intoxication caused by substances such as alcohol or drugs) (an abnormality manifested only by dependence upon or addiction to any substance such as alcohol or drugs).

Mackrell also proffered AMI Crim. 2d 610, Effect of Mental Disease or Defect on Mental State:

If you find that the defense of lack of criminal responsibility due to mental disease or defect has not been established, evidence that Tacori Mackrell suffered from a mental disease or defect may still be considered by you in

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