Wallace v. State

302 S.W.3d 580

2009 Ark. 90

Timothy WALLACE, Appellant, v. STATE of Arkansas, Appellee.

No. CR 08-112.

Supreme Court of Arkansas.

February 26, 2009.

Hurst, Morrissey & Hurst, PLLC, by: Q. Byrum Hurst, Jr., Justin B. Hurst, and Josh Hurst, Hot Springs, for appellant.

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

ANNABELLE CLINTON IMBER, Justice.

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Appellant Timothy Wallace was convicted by a Saline County jury of two counts of capital murder in the deaths of Brandy Wallace and Billy Hassel. Wallace was sentenced to two consecutive terms of life imprisonment without the possibility of parole. He now appeals, alleging that the circuit court erred in denying the following six motions: 1) the motion to suppress statements he made during a 911 call; 2) a motion for continuance; 3) the motion for change of venue; 4) a motion for mistrial; 5) the motion to suppress his statement to police; and 6) his motion for directed verdict. Because Wallace was sentenced to life imprisonment, our jurisdiction is pursuant to Arkansas Supreme Court Rule 1-2(a)(2) (2008). We find no error and affirm.

At approximately 2:23 to 2:26 a.m. on June 26, 2005, Wallace placed a call to 911

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and advised that he had shot his former wife and a male of her acquaintance. He continued his conversation with 911 dispatch for several hours, threatening to commit suicide and refusing to divulge his location. Deputies with the Saline County Sheriff's Office initiated a search. At approximately 5:30 a.m., Sergeant Mark Kyzer located Wallace in his parked pick-up truck in a rural section of Saline County. The call was transferred from 911 dispatch to Kyzer. Approximately one hour after Kyzer's arrival, several more deputies arrived on the scene and were instructed by Wallace, through his telephone conversation with Kyzer, to keep at a distance. At approximately 10:15 a.m., after Wallace had spoken with Kyzer for several hours, Detective Michael Frost initiated a conversation with Wallace and persuaded him to surrender. Frost and Kyzer transported Wallace to the Benton Police Department, which had jurisdiction over the investigation of the shootings.

Starting at 11:40 a.m. on the same date, Wallace was questioned at the Benton Police Department by Detective Patrick Baker, who was later joined by Prosecutor Robert Herzfeld. After being read his Miranda rights and signing a waiver-of-rights form, Wallace stated that he had gone to the home he used to share with Brandy without knowing that Hassel was there. He had given Brandy the marital residence in their uncontested divorce, and the divorce decree was filed only nine days earlier. Wallace offered alternating reasons for going to the house, stating that he wanted to retrieve some of his personal belongings, that he wanted to talk to Brandy, that the two had planned to spend the next day together with their children, and that he wanted to get his pistol so that he could kill himself. According

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to Wallace, Brandy initially refused to let him enter the home and then argued with him upon his entry. He claimed that he attempted to leave after retrieving his gun from a bedroom, but was physically attacked by Brandy, who began calling for Hassel. Hassel then attacked Wallace as well. Wallace opened the box containing the gun and began hitting Hassel on the head with the gun. He then removed the gun's lock, discarded the empty clip, loaded the gun, and began firing. After the initial shooting, Hassel "was trying to get up and said, `I'm gonna kill you. I'm gonna kill you,'" whereupon Wallace shot Hassel again. He stated that he thought he had shot Brandy accidentally. After the shooting, Wallace left in his truck and called 911 immediately from his cell phone. During the course of the interrogation at the police department, he wrote out a statement to the same effect.

According to Dr. Daniel Konzelmann, an associate medical examiner at the Arkansas State Crime Laboratory, Brandy suffered four gunshot wounds: one to the right thumb, characterized as a minor injury; one flesh wound to the right shoulder; one serious wound to the right upper arm that was possibly survivable; and one life-threatening wound to the right upper chest. There were also four exit wounds. In the medical examiner's opinion, the wounds to the thumb and shoulder could have been caused by a single shot. As a result of the wounds, she suffered damage to her lung and a perforated artery, which resulted in a lack of blood flow to the brain. Dr. Konzelmann testified that she probably lost consciousness in less than one minute. Approximately four to six additional minutes would have elapsed before irreversible brain injury set in.

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Hassel sustained three gunshot wounds: one flesh wound to the left lower arm, one life-threatening wound to the left lower neck, and another life-threatening wound to the left upper neck, which would have caused a loss of motor functions and a complete inability to defend himself. There were three exit wounds, with the bullet from his left lower neck lodged just under the skin of his right chest. Hassel also suffered blunt force trauma, with scrapes to his forehead, a laceration to the back of his head, and a skin tear over the back of his neck. Dr. Konzelmann stated that these injuries could be considered consistent with the butt of a gun.

Jim Looney, a firearm and tool mark examiner with the Arkansas State Crime Laboratory, testified that three of four bullets recovered from the scene had been fired from Wallace's gun. Another bullet was too damaged to make a determination. He further testified that seven shell casings recovered from the scene had been discharged from Wallace's gun.

Wallace was charged with the murders on August 9, 2005. The information alleged that he had caused the deaths of Brandy Wallace and Billy Hassel with the premeditated and deliberated purpose of doing so, in violation of Arkansas Code Annotated section 5-10-101(a)(4) (Supp. 2005). The information was subsequently amended three times, to reflect that the State would seek the death penalty, to add a firearm enhancement, and to add the charge of failure to appear. The failure-to-appear charge was later nolle prossed, pursuant to Wallace's motion for severance. As a result of Wallace's flight to Canada and subsequent

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extradition, the State was forced to waive the death penalty. Wallace's trial was held on June 12, 13, and 14 of 2007. The circuit court accepted the jury's recommendation of consecutive life sentences without the possibility of parole. The jury found that Wallace had employed a firearm in the commission of the murders, but the State later waived the firearm enhancement. Wallace filed a timely notice of appeal of the judgment and commitment order.

Motion for Directed Verdict

Wallace asserts on appeal that the circuit court erred in failing to grant his directed-verdict motion. The crux of his argument is that he lacked the requisite premeditation and deliberation for capital murder. He contends that he caused Hassel's death in self-defense and that Brandy's death was an accident. Although Wallace raises this issue as his final point on appeal, double-jeopardy concerns require that we review arguments regarding the sufficiency of the evidence first. Boldin v. State, 373 Ark. 295, 297, 283 S.W.3d 565, 567 (2008).

An appeal from a denial of a motion for directed verdict is a challenge to the sufficiency of the evidence. Price v. State, 373 Ark. 435, 438, 284 S.W.3d 462, 465 (2008). When reviewing a challenge to the sufficiency of the evidence, this court determines whether the verdict was supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence that is forceful enough to compel a conclusion one way or the other beyond speculation or conjecture. Id. The reviewing court views the evidence

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in the light most favorable to the verdict and considers only evidence that supports the verdict. Id.

Circumstantial evidence may constitute substantial evidence to support a conviction. Id. The longstanding rule in the use of circumstantial evidence is that, to be substantial, the evidence must exclude every other reasonable hypothesis than that of the guilt of the accused. Id. This question is for the jury to decide. Id. Upon review, this court must determine whether the jury resorted to speculation and conjecture in reaching its verdict. Id.

Finally, the credibility of witnesses is an issue for the jury and not the court. Id. The trier of fact is free to believe all or part of any witness's testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id. at 438-39, 284 S.W.3d at 465.

In accordance with Arkansas Code Annotated section 5-10-101(a)(4), a person commits capital murder if he or she causes the death of any person with the premeditated and deliberated purpose of causing the death of another person. This court has long held that the premeditation and deliberation required need not exist for a particular length of time; rather, they may be formed in an instant. Reese v. State, 371 Ark. 1, 3, 262 S.W.3d 604, 606 (2007). Moreover, an accused's intent or state of mind can rarely be proven by direct evidence. Id. Thus, we have acknowledged that a jury may infer premeditation and deliberation from circumstantial evidence, such as the type and character of the weapon used, the nature, extent, and location of the wounds inflicted, and the conduct of the

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accused. Id. Furthermore, we have consistently entertained the presumption that one intends the natural and probable consequences of one's actions. Coggin v. State, 356 Ark. 424, 432, 156 S.W.3d 712, 717 (2004).

We hold that the evidence presented by the State was sufficient to support a jury's inference of premeditation and deliberation. We have already noted the evidence of multiple gunshots. In addition, Dr. Konzelmann testified that at...