Sanders v. State

2014 Ark. 40

RAYMOND C. SANDERS, JR. APPELLANT v. STATE OF ARKANSAS APPELLEE

No. CR-13-390

SUPREME COURT OF ARKANSAS

Opinion Delivered January 30, 2014

APPEAL FROM THE HOT SPRING

COUNTY CIRCUIT COURT

[NO. CR-90-58]

HONORABLE JOHN LINEBERGER,

JUDGE

AFFIRMED.

CLIFF HOOFMAN, Associate Justice

After his original convictions and sentences for the 1989 murders of Charles and Nancy Brannon were vacated and set aside, appellant Raymond C. Sanders, Jr., was retried by a jury and found guilty of two counts of capital murder, for which he received sentences of life without parole. On appeal, Sanders argues that the circuit court erred by (1) permitting Byron Hopes to testify even though his testimony was procured through an illegal sentence reduction; (2) holding that the cross-examination of Hopes about the deal would open the door to testimony about Sanders's other murder case; (3) refusing to prohibit the State from using transcripts of witness testimony from Sanders's first trial; and (4) excluding part of the prior testimony of Bill Keeling. We have jurisdiction over this appeal pursuant to Ark. Sup. Ct. R. 1-2(a)(2), (7) (2013). We affirm.

Sanders has brought five prior appeals in connection with his convictions and sentencing for the murders of the Brannons, which occurred in Hot Spring County in November 1989. His first trial was held in February 1991 in the Grant County Circuit Court on a change of venue from Hot Spring County, and Sanders was sentenced to death on each count. This court affirmed the convictions on appeal but reversed the sentences and remanded for resentencing because a prior murder conviction used as an aggravating circumstance had since been overturned on appeal. Sanders v. State, 308 Ark. 178, 824 S.W.2d 353 (1992) ("Brannon I").¹ This prior conviction of Sanders for capital murder was connected with the murder of Frederick LaSalle in December 1989, and the trial on this murder charge occurred in March 1990, prior to the trial in the Brannon murders. Sanders's conviction in the LaSalle case was reversed, Sanders v. State, 305 Ark. 112, 805 S.W.2d 953 (1991) ("LaSalle I"), and a second trial was held in February 1992, after which Sanders was again convicted of capital murder and received a life sentence. This conviction was affirmed on appeal. Sanders v. State, 310 Ark. 510, 838 S.W.2d 359 (1992), cert. denied, 513 U.S. 1162 ("LaSalle II").

After the resentencing hearing in the Brannon case in August 1992, Sanders was again sentenced to death, and we affirmed. Sanders v. State, 317 Ark. 328, 878 S.W.2d 391 (1994) ("Brannon II"). Sanders subsequently filed a Rule 37 petition for postconviction relief, which was denied by the circuit court without a hearing. On appeal, this court reversed and remanded for an evidentiary hearing on Sanders's petition. Sanders v. State, 352 Ark. 16, 98S.W.3d 35 (2003), supp. op. upon reh'g, 352 Ark. 520, 102 S.W.3d 480 (2003) ("Brannon III"). During the hearing, evidence of a possible Brady violation arose, and the circuit court halted the proceedings while Sanders filed in this court a petition to reinvest jurisdiction in the circuit court to consider a petition for writ of error coram nobis. We granted the petition in part, so that Sanders could proceed on his due-process claim of a Brady violation. Sanders v. State, 374 Ark. 70, 285 S.W.3d 630 (2008) ("Brannon IV").

A joint hearing was held before the circuit court on Sanders's petition for postconviction relief pursuant to Rule 37 and on his petition for writ of error coram nobis. The circuit court granted Sanders's petition for writ of error coram nobis and vacated his convictions and sentences, finding that the prosecution's failure to reveal information about one of its witnesses prejudiced Sanders's right to a fair trial. The court denied relief based on Sanders's Rule 37 petition, however, and Sanders appealed to this court. We dismissed his appeal as moot, holding that once the circuit court granted Sanders's petition for writ of error coram nobis, there was no longer a sentence from which postconviction relief could be sought. Sanders v. State, 2011 Ark. 127 ("Brannon V"). Sanders was retried for the Brannon murders in October 2012, and the State waived the death penalty. He was again convicted of both counts of capital murder and was sentenced to life without parole. He now appeals from these convictions.

A detailed recitation of the underlying facts has been previously set forth in our opinion in Brannon I; however, briefly, Charles and Nancy Brannon were killed by gunshot wounds. Charles's body was found near a church in Malvern on November 21, 1989, andNancy's body was found in the surrounding area two days later, a short distance from the Brannons' truck. Their home had also been ransacked. The gun believed to have been used in the murders was pawned several weeks later by a man identified as Sanders, along with an unidentified female. Also, several pieces of jewelry identified as Nancy's were pawned by Sanders approximately one week after the murders. There was also evidence presented that Charles was known to carry large amounts of cash on his person; that Sanders had worked for Charles and had been to the Brannons' home on many occasions; that acquaintances had seen Sanders with a large sum of money in the days following the Brannons' murder; and that when one acquaintance questioned Sanders about a gun and some jewelry seen at his house after the murders, he replied that "there were some things she didn't need to know."

In his first point on appeal, Sanders argues that the circuit court erred in permitting Byron Hopes to testify even though his testimony was procured through an illegal Rule 37 procedure. Prior to trial, Sanders filed a motion to exclude the testimony of Hopes, who was his codefendant in the LaSalle case and who had testified against him in LaSalle II. Sanders argued that Hopes's testimony in LaSalle II had been obtained by a collusive and untimely Rule 37 proceeding. As a result of that proceeding, Hopes's original plea of guilty to the LaSalle murder, for which he had received a forty-year sentence, was vacated, and he entered a new guilty plea, receiving a reduced sentence of twenty years' imprisonment. In addition to asserting that this postconviction proceeding was untimely, as it was filed more than ninety days after Hopes's original plea was entered on July 5, 1990, Sanders argued that it was procured by collusion because the prosecutor in LaSalle II, Dan Harmon, had served asHopes's defense counsel when he had entered his plea in 1990. Sanders asserted that a special prosecutor was appointed for the purposes of Hopes's Rule 37 proceeding and that Harmon conceded in that proceeding that he had been ineffective as Hopes's counsel. The circuit court then granted Hopes's Rule 37 petition and vacated his plea of guilty. Sanders argued in his pretrial motion that Hopes's testimony should be suppressed because the evidence was obtained illegally and in violation of his due-process rights. The transcript from Sanders's postconviction evidentiary hearing was introduced to support his allegations.

After a pretrial hearing, the circuit court denied Sanders's motion to exclude Hopes's testimony, relying on this court's decision in Burks v. State, 2009 Ark. 598, 359 S.W.3d 402, in which we affirmed the trial court's decision to admit the testimony of a witness that was obtained through the use of an illegal writ of error coram nobis. Sanders argues on appeal that the circuit court erred in permitting Hopes to testify because it was "the fruit of the poisonous tree of the illegal deal." He contends that our holding in Burks should be overruled, as the prosecutorial misconduct in this case constitutes a denial of his due-process rights. Further, Sanders asserts that this evidence should be suppressed pursuant to the factors set forth in Ark. R. Crim. P. 16.2 (2013), as the integrity of the judicial system is of prime importance, there was a "flagrant and willful violation of the rules of lawful conduct," and exclusion of the evidence will tend to prevent violation of the rules.

We will reverse a circuit court's decision on a motion to suppress only if it is clearly against the preponderance of the evidence. Boldin v. State, 373 Ark. 295, 283 S.W.3d 565(2008).² We defer to the circuit court's superior position in determining the credibility of the witnesses and resolving any conflicts in the testimony. Id.

The State responds that the circuit court did not err in admitting Hopes's testimony because the remedy for a plea agreement that is improperly obtained through the use of a postconviction proceeding is cross-examination. In support of its argument, the State cites Burks, supra, where we held that the appropriate remedy for a witness's potential bias resulting from a plea agreement is to allow the defense to cross-examine the witness on the source of that bias and thereby impeach the witness's credibility. See also Gilcrease v. State, 2009 Ark. 298, 318 S.W.3d 70 (A defendant has wide latitude in cross-examining a witness on possible bias resulting from the expectation of a plea offer by the State in exchange for the testimony of the witness.); Windsor v. State, 338 Ark. 649, 1 S.W.3d 20 (1999) (The trial court was correct in not excluding the testimony of a witness who obtained a reduced sentence in exchange for his testimony against the defendant, as the appellant had ample opportunity to cross-examine the witness concerning his plea agreement.).

With regard to Sanders's allegation that Hopes's postconviction relief was obtained through collusion by the prosecutor, special prosecutor, Hopes's defense counsel, and the trial judge, the State notes that Sanders failed to support such an allegation by calling each of them to testify about the circumstances surrounding the prior deal. The State further asserts thatat the time of the charged offenses against both Hopes and Sanders, Ark. R....