Vankirk v. State

2011 Ark. 428

385 S.W.3d 144

Ira Gene VANKIRK, Appellant

v.STATE of Arkansas, Appellee.

No. CR 11–182.

Supreme Court of Arkansas.

Oct. 13, 2011.

James Law Firm, by: William O. “Bill” James, Jr., and Lee D. Short, Little Rock, for appellant.

Dustin McDaniel, Att'y Gen., by: Kathryn Henry, Ass't Att'y Gen., for appellee.

DONALD L. CORBIN, Justice.

Appellant Ira Gene Vankirk appeals from a judgment and commitment order sentencing him to three consecutive terms of life imprisonment as a result of Vankirk pleading guilty to three counts of rape. On appeal, Vankirk argues that the circuit court erred in allowing the State to introduce a videotaped interview of an investigator for the Arkansas State Police Crimes Against Children division asking the victim in this case about the rape allegations. Specifically, Vankirk asserts that he was denied his constitutional right to confront that witness. As Appellant was sentenced to life imprisonment and because this case presents an issue of first impression, our jurisdiction is pursuant to Ark. Sup.Ct. R. 1–2(a)(2) and (b)(1) (2011). For the reasons set forth herein, we reverse the order of the circuit court and remand this matter for resentencing.

The record reflects that Vankirk was charged by felony information on January 21, 2010, with three counts of rape, each occurring sometime between January 1, 2007, and August 31, 2009, in violation of Ark.Code Ann. § 5–14–103 (Repl.2009). The victim was Vankirk's niece, C.V., and at the time she reported the incident to authorities, she was twelve years of age.

Vankirk pleaded guilty to the three counts of rape and elected to be sentenced by a jury in a bifurcated proceeding. At the sentencing trial, held on December 4–5, 2010, the State moved to introduce a videotaped interview of the victim, C.V., with an investigator for the state police. In that video, C.V. stated that Vankirk had raped or fondled her for several years, beginning when she was five or six years of age. Vankirk objected to the playing of the video, arguing that it violated the rules of evidence and his constitutional right of confrontation. The circuit court overruled Vankirk's objection, finding that the rules of evidence did not apply in a sentencing proceeding and that the video constituted victim-impact evidence.

Vankirk testified during his sentencing trial. He stated that he was molested by his uncle for a period of years from the time he was five or six years old until he was fourteen or fifteen years old. He then admitted to having inappropriate sexual contact not only with C.V., but also with his nephew, M.G., and another niece, K.G. Thereafter, the jury returned a verdict, sentencing Vankirk as previously stated. This appeal followed.

The issue presented to this court is one of first impression: whether the constitutional right of confrontation applies where a defendant pleads guilty but chooses to be sentenced by a jury in a bifurcated proceeding. Vankirk argues that the right of confrontation should extend to sentencing and that the introduction of the videotaped interview of the victim in this case violated his rights of confrontation guaranteed by the Sixth Amendment to the United States Constitution and article 2, section 10 of the Arkansas Constitution. Vankirk concedes that neither this court nor the United States Supreme Court has specifically held that the right of confrontation applies to sentencing, but he argues that there is nothing in the Sixth Amendment that limits the right of confrontation to a particular segment of the trial, as it grants a defendant the absolute right to confront his accusers at trial.

The State counters that Vankirk's argument is partially unpreserved, as he did not specifically mention the Arkansas Constitution when he objected to the introduction of the video. The State also argues that he waived any right of confrontation by pleading guilty to the charges against him. Alternatively, the State argues that Vankirk's argument fails on the merits because there was no violation of the Sixth Amendment's Confrontation Clause, as it does not apply to sentencing proceedings. Before turning to the merits of this argument, it is necessary to address the State's procedural issues.

First, there is no merit to the State's argument that Vankirk failed to properly preserve his argument under the state constitution. In Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), the United States Supreme Court ruled that the right of confrontation provided to an accused by the Sixth Amendment to the United States Constitution is applicable to the states by the Fourteenth Amendment. This court has recognized that the wording of the Sixth Amendment Confrontation Clause is incorporated into our constitution's article 2, section 10. Hale v. State, 343 Ark. 62, 31 S.W.3d 850 (2000). There, this court explained that we interpret the Confrontation Clauses of the United States and Arkansas Constitutions to provide identical rights. Thus, there is no merit to the State's assertion that this court is precluded from considering Vankirk's rights under our constitution.

Additionally, we must look at the State's assertion that Vankirk waived his rights under the Confrontation Clause. First, the State argues that under Arkansas law when a person pleads guilty, he waives the right to be confronted with the witnesses against him, except in capital cases where the death penalty is sought. In support of this argument, the State cites to Ark. R.Crim. P. 24.4 (2010), and Pardue v. State, 363 Ark. 567, 215 S.W.3d 650 (2005). Rule 24.4(e) does provide that a defendant who pleads guilty waives his right to a trial by jury and other corresponding trial rights, including the right to confront the witnesses against him. This rule does not contemplate the bifurcated procedure that allows one who pleads guilty to be sentenced by a jury and, thus, is not applicable. Likewise, this court's decision in Pardue is not controlling, as that case was concerned with a postconviction challenge to the validity of a plea and subsequent sentence and did not involve a Confrontation Clause challenge. Accordingly, we disagree with the State's assertion that Vankirk waived any right he may have had under the Confrontation Clause during the bifurcated sentencing trial.

Turning now to the merits of the argument before us, we must first note that this appeal raises a question of constitutional interpretation, which is subject to this court's de novo standard of review. Seely v. State, 373 Ark. 141, 282 S.W.3d 778 (2008).

A defendant's right to confront the witnesses against him is found in the Sixth Amendment to the United States Constitution and in article 2, section 10 of the Arkansas Constitution. Specifically, the Sixth Amendment to the Constitution provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const. amend. VI. In its landmark decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United States Supreme Court held that the Confrontation Clause bars admission of testimonial statements of a witness who does not appear at trial, unless the witness is unavailable to testify, and the defendant previously had the opportunity to cross-examine the declarant. Id. The Court in Crawford explained that “the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused,” and stated that “[t]he Sixth Amendment must be interpreted with this focus in mind.” Id. at 50, 124 S.Ct. 1354.

In deciding Crawford, the Supreme Court announced that the analysis of whether an unavailable witness's hearsay statement is admissible turns on whether the statement is testimonial. Id. While the Court did not provide a comprehensive definition of “testimonial,” this court addressed the issue in Seely, 373 Ark. 141, 152–53, 282 S.W.3d 778, 787–88, and explained that

a more appropriate test should recognize the distinction between statements to government officials and statements to nonofficials. Moreover, the test should remain focused on the circumstances surrounding the statement and whether those circumstances objectively indicate that the primary purpose of the statement is to prove events relevant to criminal prosecution. Where a statement is made to a government official, it is presumptively testimonial, but the statement can be shown to be nontestimonial where the primary purpose of the statement is to obtain assistance in an emergency. See Davis [ v. Washington ], 547 U.S. 813[, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) ]. Where a statement is made to a nonofficial, it is presumptively nontestimonial, but can be shown to be testimonial if the primary purpose of the statement is to create evidence for use in court. See, e.g., State v. Spencer , 169 P.3d 384, 388 (2007) (“In general, a declarant's statements are presumed testimonial if they are knowingly made to a police officer or government agent. A statement is presumed non-testimonial, however, if the declarant had objective reason to believe that the statement served only to avert or mitigate an imminent or immediate danger and the agent receiving the statement lacked intent to create evidence. A statement made to a nongovernmental agent is non-testimonial unless the declarant had clear reason to believe that the statement would be used in court as substantive evidence against the defendant.”) (citations and quotations omitted).

Here, the State does not challenge whether the statements were testimonial in nature. But, we must first make such a determination because if they are not testimonial, there is no Confrontation Clause issue. The statements of the victim in the video were made to an investigator for the state police for the purpose of proving events...