Lee v. State
Annotate this Case
Ledell LEE v. STATE of Arkansas
CR 96-553 ___ S.W.2d ___
Supreme Court of Arkansas
Opinion delivered March 24, 1997
1. Jury -- selection of -- factors necessary to establish prima
facie case of systematic exclusion. -- Selection of a petit
jury from a representative cross-section of the community is
an essential component of the Sixth Amendment right to a jury
trial; the State may not deliberately or systematically deny
to members of a defendant's race the right to participate, as
jurors, in the administration of justice; in order to
establish a prima facie case of deliberate or systematic
exclusion, a defendant must prove that: (1) the group alleged
to be excluded is a "distinctive" group in the community; (2)
the representation of this group in venires from which the
juries are selected is not fair and reasonable in relation to
the number of such persons in the community; and (3) this
underrepresentation is due to systematic exclusion of the
group in the jury-selection process.
2. Jury -- second and third factors necessary to prove prima
facie systematic exclusion not present -- trial court did not
err in denying appellant's motion to prohibit use of voter-
registration records to select jury. -- Where appellant failed
to provide any evidence as to the number of African-Americans
on every jury venire in Pulaski County, he failed to satisfy
the second prong of the Duren v. Missouri, 439 U.S. 357
(1979), test that requires a fair and reasonable
representation of the distinctive group in every venire from
which juries are selected, not just the particular venire
summoned at his trial; appellant also failed to produce
evidence that demonstrated that the alleged misrepresentation
of African-Americans was due to a systematic exclusion in the
jury-selection system itself; because appellant failed to
satisfy the second and third elements of the Duren test, the
trial court did not err in denying his motion to prohibit the
use of voter-registration records to select the jury panel in
his case.
3. Jury -- venire chosen by computer a random selection -- no
possibility of purposeful exclusion of one race. -- Where the
venire is chosen by computer, using the random-selection
process maintained by Ark. Code Ann. 16-32-103 (Repl. 1994),
there is no possibility of a purposeful exclusion of African-
Americans.
4. Evidence -- State's duty to preserve evidence -- without bad
faith failure to preserve potentially useful evidence does not
constitute denial of due process. -- The State's duty to
preserve evidence is limited to that which might be expected
to play a significant role in the suspect's defense, and the
evidence must both possess an exculpatory value that was
apparent before the evidence was destroyed and be of such a
nature that the defendant would be unable to obtain comparable
evidence by other reasonably available means; unless a
criminal defendant can show bad faith on the part of the
police, failure to preserve potentially useful evidence does
not constitute a denial of due process of law.
5. Evidence -- bare contention of bad faith not enough -- due
process claim properly rejected by trial court. -- Where
appellant made only a broad assertion that "the potential
value of the evidence to the defense was so obvious that the
decision to allow it destroyed suggests bad faith," without
supporting facts, he did not demonstrate that the State acted
in bad faith in destroying the evidence; while appellant was
free to argue to the jury that alternative testing might have
preserved the sample, the police do not have a constitutional
duty to perform any particular tests; because appellant made
no showing that the blood evidence on the shoes possessed any
exculpatory value before it was destroyed, or that the State
in bad faith failed to preserve the sample, his due process
claim was properly rejected by the trial court.
6. Appeal & error -- argument offered without citation to
authority -- argument not considered. -- The supreme court has
been careful not to consider arguments where an appellant
offers no citation of authority or convincing argument and
where it is not apparent without further research that the
argument is well-taken.
7. Evidence -- State entitled to produce evidence showing a
motive for killing -- testimony that appellant was on his way
to purchase drugs shortly after murder properly allowed. --
When the purpose of evidence is to show motive, anything and
everything that might have influenced the commission of the
act may, as a rule, be shown; the State's evidence that
appellant was on his way to obtain drugs shortly after the
time of the murder was relevant to explain a possible motive
for the killing -- that he planned to use part of the money he
took from the victim to purchase drugs -- and to illustrate
his state of mind; great deference is afforded to a trial
court's ruling on relevancy and prejudicial impact; the trial
court did not abuse its discretion in allowing the State to
elicit evidence regarding the witness's conversation with
appellant.
8. Constitutional law -- statutes not overlapping or
unconstitutional -- issue decided adversely to appellant. --
Appellant's argument that the overlap between the capital
murder and first-degree murder statutes violates the Eighth
and Fourteenth Amendments and his claim that these statutes
overlap in their elements, are void for vagueness, fail to
narrow the class of offenders, and grant unbridled discretion
to the prosecutor was without merit; the supreme court has
decided this issue adversely to appellant's position on many
occasions and adhered to these previous holdings here.
9. Evidence -- victim-impact evidence considered by jury at same
time it considers mitigating evidence introduced by defendant
-- jury need not be instructed on how to weigh any particular
fact in capital-sentencing decision. -- The jury can consider
victim-impact evidence at the same time it considers the
mitigating evidence introduced by the defendant; because there
are virtually no limits placed on the relevant mitigating
evidence that a defendant may introduce on his behalf, the
State can legitimately conclude that the impact of the murder
on the victim's family is relevant to the jury's decision as
to whether to recommend that the death sentence be imposed;
the jury need not be instructed how to weigh any particular
fact in the capital-sentencing decision, as a contrary rule
would require a mandatory sentencing scheme.
10. Evidence -- victim-impact evidence properly admitted --
sister's testimony not so unduly prejudicial as to render
trial fundamentally unfair. -- When evidence is introduced
that is so unduly prejudicial that it renders the trial
fundamentally unfair, the Due Process Clause of the Fourteenth
Amendment provides a mechanism for relief; where the victim's
sister was the State's only victim-impact witness, she
testified that her sister and mother spent most of every day
together, her parents were on antidepressants after the
incident and her mother was under psychiatric care; prior to
her death, the victim lived with her husband of seven months
and her seven-year-old son from a previous marriage, and was
trying to have another child, she also related the painful
experience of selecting her sister's wig for her funeral, the
sister's testimony was not so unduly prejudicial that it
rendered appellant's trial fundamentally unfair.
11. Constitutional law -- no proof of discriminatory purpose shown
-- denial of motion to prohibit State from seeking death
penalty not error. -- Appellant's motion to prohibit the State
from seeking the death penalty in his case because, according
to him, the death penalty has been historically applied
arbitrarily and capriciously and in a racially discriminatory
fashion, was without merit; a discriminatory purpose must be
proved on the part of the decision-maker in the defendant's
particular case; appellant's allegations were very general; he
offered no proof to show how his due process or equal
protection rights were violated by a biased or arbitrary judge
or jury; due to absence of proof of discriminatory purpose,
the trial court did not err in denying appellant's motion.
12. Criminal procedure -- motion for severance properly denied --
rule regarding severance inapplicable where appellant charged
with single count of capital murder. -- The trial court
properly denied appellant's motion for severance of the crimes
relied on by the State as aggravating circumstances where
appellant was charged by felony information with a single
count of capital murder; the three offenses relied on by the
State as aggravating circumstances during the penalty phase
were not included in the felony information, and were not
joined with the capital-murder charge; the rules regarding
severance did not apply, as there were no charges to sever
from the capital murder charge.
13. Appeal & error -- argument unsupported by authority --
argument not considered. -- Where appellant cited no
convincing authority or facts in support of his bare assertion
of error, the court would not consider such an unsupported
argument on appeal.
14. Evidence -- proof undisputed that appellant previously
convicted of and committed rape -- appellant failed to show
that he was prejudiced by absence of in camera hearing. --
Appellant's claim that the trial court should have viewed the
evidence of the three previous felonies in camera, before the
evidence was presented to the jury during the penalty phase,
was without merit where the State offered proof that appellant
had been convicted of one of the rapes and, as to the two
other offenses, the State offered testimony of the two victims
as well as testimony from an FBI agent who testified that the
probability of the rapist being someone other than appellant
was one in one billion in one of the cases, and one in eighty
billion in the other; the State proved beyond a reasonable
doubt that appellant had committed these offenses, as such,
appellant could not demonstrate that he was prejudiced by the
absence of an in camera hearing.
Appeal from Pulaski Circuit Court, Second Division; Chris
Piazza, Judge; affirmed.
Montgomery, Adams & Wyatt, P.L.C., by: Dale E. Adams, for
appellant.
Winston Bryant, Att'y Gen., by: Kent G. Holt, Asst. Att'y
Gen., for appellee.
W.H."Dub" Arnold, Chief Justice.
Twenty-six year-old Debra Reese was found brutally murdered in
her home at 212 Cherry Street in Jacksonville on February 9, 1993.
She had been beaten some thirty-six times with a tire thumper, a
tool resembling a baseball bat that her husband Billy, a truck
driver, had given to her for protection while he was away. Bruises
on Debra's face and neck indicated that she had also been
strangled. The appellant, Ledell Lee, was arrested and charged
with Reese's murder. Following a jury trial, he was convicted of
capital murder and sentenced to death by lethal injection. He
raises seven points on appeal. We find no merit to any of his
arguments and affirm the conviction and sentence.
Lee does not challenge the sufficiency of the evidence, so we
need not recite the facts in great detail. The State's theory at
trial was that Lee committed the murder for pecuniary gain, and
that he had searched the victim's neighborhood until he found the
perfect target for his crime.
William McCullough Jr. lived near the victim's house and had
been home on the morning in question. Sometime between 10:00 a.m.
and 11:00 a.m., he heard a knock at his door. McCullough went to
the door and was met by a man who asked to borrow some tools.
McCullough gave the man a driver ratchet and a socket, which he
promised to return. The man did not return the tools.
At approximately 10:50 a.m. on the morning of the murder,
Katherine Williams, the victim's mother, received a phone call from
her daughter, who lived some four or five houses away. A man had
just knocked on the victim's door, asked if her husband was home,
and inquired about borrowing some tools. When the victim replied
that she had no tools, the man left. According to Katherine, her
daughter told her that she was scared and "did not trust this guy."
The victim promised her mother that she would be at her house as
soon as she finished curling her hair. Her daughter never arrived.
Andy Gomez lived across the street from the victim, and was
also home on the morning in question. While looking out his front
window, he saw a man standing at the front door of the victim's
residence. He watched the man grab the screen door and "make a B-
line inside just real fast." Approximately twenty minutes later,
the man exited Debra's residence. According to Gomez, the man made
rapid head movements, as if he was checking to see if he was being
watched. Suspicious, Gomez got in his car to follow the man. He
caught up with him on a nearby street, where he observed the man
talking to a female with spirals or braids in her hair.
Glenda Pruitt lived at 128 Galloway Circle on the date in
question. A man she had seen four or five times and knew as "Skip"
walked up her street. Glenda, who wore her hair in long braids,
had a short conversation with Skip as he passed by her house.
McCullough, Gomez, and Pruitt identified Lee in a photographic
lineup as the man they had seen in the victim's neighborhood on the
morning of her murder.
Debra's body was discovered in her bedroom at approximately
1:38 p.m. that same date. Three one hundred dollar bills that
Debra's father, Stephen Williams, had given to her were missing
from her wallet. This money had been part of a larger stack of
crisp new bills Williams received in sequential order from the
Arkansas Federal Credit Union. At Lee's trial, the State offered
evidence that, at 1:53 p.m. on the day of the murder, Lee paid a
debt at the Rent-A-Center with a one-hundred dollar bill. Of the
three one-hundred dollar bills that the Rent-A-Center received on
February 9, one of the bills bore a serial number that was two
bills away from one of the bills that the victim's father had
turned over to police.
I. Selection of jury panel
For his first allegation of error, Lee asserts that the use of
voter registration records to select the jury panel in his case
denied him a jury comprised of a true cross-section of the
community. At the end of voir dire, Lee, who is African-American,
observed that only ten of the seventy-five venirepersons assembled
were African-American. Lee claims that the State failed to rebut
his statistical evidence of systematic exclusion of African-
Americans from the jury panel in his case.
Selection of a petit jury from a representative cross-section
of the community is an essential component of the Sixth Amendment
right to a jury trial. Danzie v. State, 326 Ark. 34, 930 S.W.2d 310
(1996); Davis v. State, 325 Ark. 194, 925 S.W.2d 402 (1996). It is
axiomatic that the State may not deliberately or systematically
deny to members of a defendant's race the right to participate, as
jurors, in the administration of justice. Davis v. State, supra;
Sanders v. State, 300 Ark. 25, 776 S.W.2d 334 (1989). In order to
establish a prima facie case of deliberate or systematic exclusion,
a defendant must prove that: (1) the group alleged to be excluded
is a "distinctive" group in the community; (2) the representation
of this group in venires from which the juries are selected is not
fair and reasonable in relation to the number of such persons in
the community; and (3) this underrepresentation is due to
systematic exclusion of the group in the jury-selection process.
Duren v. Missouri, 439 U.S. 357 (1979).
In this case, the first prong of the Duren test is clearly
met, as African-Americans represent a distinctive group in the
community. Regarding the second prong, Lee offered statistical
evidence compiled from the 1990 census that Pulaski County has a
population of 349,660, of which 58,280 are African-American
citizens over age eighteen. Of the 349,600, the county has 200,297
registered voters. Lee also proffered the testimony of a
mathematics professor that there was a two-percent chance that the
jury panel in Lee's case could have been randomly selected from the
population of Pulaski County.
Lee did not meet his burden of proof by merely showing that
the jury venire called in his case was not racially representative
of the community. Davis v. State, supra; Mitchell v. State, 323
Ark. 116, 913 S.W.2d 264 (1996). The second prong of the Duren
test requires a fair and reasonable representation of the
distinctive group in every venire from which juries are selected,
not just the particular venire summoned at his trial. See Danzie,
326 Ark. at 43, citing Duren, 439 U.S. at 364-66. Lee has not
provided us with any evidence as to the number of African-Americans
on every jury venire in Pulaski County.
In order to satisfy the final prong in Duren, Lee must produce
evidence that demonstrates that the alleged misrepresentation of
African-Americans is due to a systematic exclusion in the jury-
selection system itself. Lee acknowledges in his brief our
previous holdings that, where the venire is chosen by computer,
using the random-selection process maintained by Ark. Code Ann.
16-32-103 (Repl. 1994), there is no possibility of a purposeful
exclusion of African-Americans. Because Lee failed to satisfy the
second and third elements of the Duren test, the trial court did
not err in denying his motion to prohibit the use of voter
registration records to select the jury panel in his case.
II. Destruction of blood evidence
Lee's second point on appeal is that the capital murder charge
should have been dismissed due to the destruction of possibly
exculpatory evidence. When Lee was arrested and taken into custody
on the day of the murder, among the items police seized from him
was a pair of Converse tennis shoes he was wearing. Kermitt
Channell, a serologist with the State Crime Lab, examined the shoes
and observed what he believed to be a small spot of blood on the
sole of the left shoe, and another spot on the tongue of the right
shoe. Channell performed what he termed a "Takayama test" on the
shoes, which confirmed the presence of blood, but consumed the
entire sample, thus removing the opportunity for independent
analysis by the defense. Lee presented the testimony of Robert
Reis, a professor of biochemistry and molecular biology, who
testified that, while Channell had done his job "quite thoroughly,"
the State Crime Lab's guidelines needed reevaluation since the
advent of more sensitive methods of DNA analysis. According to
Reis, other tests could have been performed on the shoes without
destroying the sample.
Lee claims that his counsel should have been notified that the
blood evidence on the shoes was about to be destroyed. He further
asserts that the State breached its duty under Brady v. Maryland,
373 U.S. 83 (1963), to preserve potentially exculpatory evidence.
According to Lee, the State's failure to preserve enough of the
sample on the shoes so that he could conduct his own tests deprived
him of due process guaranteed by the federal and state
constitutions.
We addressed a similar claim in Wenzel v. State, 306 Ark. 527,
815 S.W.2d 938 (1991). In Wenzel, a rape case, the defendant
argued that his due process rights were violated when FBI
technicians consumed all of the semen samples found on the victims'
vaginal swabs. We emphasized that the State's duty to preserve
evidence is limited to that which "might be expected to play a
significant role in the suspect's defense," and that the "evidence
must both possess an exculpatory value that was apparent before the
evidence was destroyed, and be of such a nature that the defendant
would be unable to obtain comparable evidence by other reasonably
available means." Wenzel, 306 Ark. at 532-3, quoting California v.
Trombetta, 476 U.S. 479, 488-9 (1988). We further explained that,
"unless a criminal defendant can show bad faith on the part of the
police, failure to preserve potentially useful evidence does not
constitute a denial of due process of law." Wenzel, 306 Ark. at
533, quoting Arizona v. Youngblood, 488 U.S. 51, 58 (1988).
In this case, Lee makes the broad-brushed assertion in his
brief that "the potential value of the evidence to the defense was
so obvious that the decision to allow it destroyed suggests bad
faith." This bare contention, without supporting facts, does not
demonstrate that the State acted in bad faith in destroying the
evidence. To the contrary, Channell testified that he performed
the test in accordance with established laboratory guidelines, and
that he did not contact the prosecutor or defense counsel to inform
them that the sample on the shoes could be consumed, as it was not
standard operating procedure to do so. While Lee was free to argue
to the jury that alternative testing might have preserved the
sample, "the police do not have a constitutional duty to perform
any particular tests." Youngblood, 488 U.S. at 59. Because Lee has
made no showing that the blood evidence on the shoes possessed any
exculpatory value before it was destroyed, or that the State in bad
faith failed to preserve the sample, Lee's due process claim was
properly rejected by the trial court.
Alternatively, Lee argues that he was entitled to an order
suppressing the use of the shoes as evidence for the State.
However, he neither cites authority nor makes a convincing argument
for suppression. We have been careful not to consider arguments
where an appellant offers no citation of authority or convincing
argument and where it is not apparent without further research that
the argument is well-taken. Matthews v. State, 327 Ark. 70, ___
S.W.2d ___ (1997).
III. Uncharged misconduct evidence
During the State's case-in-chief, Glenda Pruitt testified that
she saw Lee shortly after the murder when he passed in front of her
house, which was located near the victim's residence. According to
Pruitt, she asked Lee, "Where's the fire?" to which he responded,
"Well, you are always asking me for weed." Without objection,
Pruitt testified that Lee responded that he did not use marijuana,
but used cocaine.
During cross-examination, Lee's counsel questioned Pruitt
regarding her beliefs and practices as a Rastafarian, particularly
with regard to the use of marijuana. He attacked her recollection
of her conversation with Lee and whether that recollection was
impaired by her use of marijuana. During redirect examination,
over Lee's objection, the trial court permitted the State to
present the entire conversation between Pruitt and Lee. According
to Pruitt, she asked Lee whether he had cocaine "running all
through [his] veins," to which he responded, "Yes. It is running
all through me." Pruitt then stated, "Don't you know it (cocaine)
is poison?" to which Lee responded, "I'm going to get some now."
Lee claims that Pruitt's testimony during redirect was
erroneously permitted in violation of A.R.E. 404(b). However,
under this rule, evidence of other crimes, wrongs, or acts may be
admissible to prove motive. We have said that, when the purpose of
evidence is to show motive, anything and everything that might have
influenced the commission of the act may, as a rule, be shown.
Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996); Cooper v.
State, 324 Ark. 135, 919 S.W.2d 205 (1996). The State is entitled
to produce evidence showing circumstances which explain the act,
show a motive for killing, or illustrate the accused's state of
mind. Echols v. State, supra; Smith v. State, 310 Ark. 247, 837 S.W.2d 279 (1992). The State's theory at trial was that Lee
murdered the victim for pecuniary gain, which was supported by
evidence that money was missing from the victim's wallet. The
State was able to produce evidence tying only one of the three
missing one hundred dollar bills to Lee. Thus, the State's
evidence that Lee was on his way to obtain drugs shortly after the
time of the murder was relevant to explain a possible motive for
the killing -- that he planned to use part of the money he took
from the victim to purchase drugs -- and to illustrate his state of
mind. As we afford great deference to a trial court's ruling on
relevancy and prejudicial impact, we cannot say that the trial
court in this case abused its discretion in allowing the State to
elicit evidence regarding Pruitt's conversation with Lee.
IV. Overlap of offenses
Lee next argues that the overlap between the capital murder
and first-degree murder statutes violates the Eighth and Fourteenth
Amendments. Particularly, he claims that these statutes overlap in
their elements, are void for vagueness, fail to narrow the class of
offenders, and grant unbridled discretion to the prosecutor. We
have decided this issue adversely to Lee's position on many
occasions, and adhere to these previous holdings. See Echols v.
State, supra; Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995),
cert. denied, 116 S. Ct. 1436 (1995).
V. Victim-impact evidence
Lee challenges Arkansas's victim-impact statute, Ark. Code
Ann. 5-4-602 (4)(Repl. 1993), as violative of due process. He
claims that, by enacting the statute, the legislature has
improperly created a new aggravating circumstance. He further
complains that there is no place in the statutory weighing process
for the jury to consider victim-impact evidence. In making his
argument, Lee asks us to reconsider our decisions in Kemp v. State,
supra; and Nooner v. State, supra. We decline to do so. In Kemp,
we explained that the jury could consider victim-impact evidence at
the same time it considers the mitigating evidence introduced by
the defendant. Kemp, 324 Ark. at 204-205, citing Payne v.
Tennessee, 501 U.S. 808, 826 (1991). Recognizing that there are
virtually no limits placed on the relevant mitigating evidence that
a defendant may introduce on his behalf, we noted that the State
could legitimately conclude that the impact of the murder on the
victim's family is relevant to the jury's decision as to whether to
recommend that the death sentence be imposed. Kemp, 324 Ark. at
205, citing Payne, 501 U.S. at 827. We further recognized that the
jury need not be instructed how to weigh any particular fact in the
capital sentencing decision, as a contrary rule would require a
mandatory sentencing scheme. Kemp, 324 Ark. at 205, citing Tuilaepa
v. California, 114 S. Ct. 2630, 2639 (1994).
We recognized in Kemp that, when evidence is introduced that
is so unduly prejudicial that it renders the trial fundamentally
unfair, the Due Process Clause of the Fourteenth Amendment provides
a mechanism for relief. Kemp, 324 Ark. at 205. In this case, Lisa
Buchan, the victim's sister, was the State's only victim-impact
witness. She testified that her sister and mother spent most of
every day together. Her parents were on antidepressants after the
incident, and her mother was under psychiatric care. Prior to her
death, the victim lived with her husband of seven months and her
seven-year-old son from a previous marriage, and was trying to have
another child. Lisa, who was pregnant during the trial, stated
that she would name her child after her sister. She also related
the painful experience of selecting her sister's wig for her
funeral. We cannot agree that Lisa's testimony was so unduly
prejudicial that it rendered Lee's trial fundamentally unfair.
VI. Arbitrary and discriminatory
Lee filed a written motion to prohibit the State from seeking
the death penalty in his case because, according to him, the death
penalty has been historically applied arbitrarily and capriciously
and in a racially discriminatory fashion. In support of his
argument, he cites a law review article and references the fact
that he is black and the victim was white. See "Patterns of
Deaths: An Analysis of Racial Disparities in Capital Sentencing and
Homicide Victimization," 37 Stan. L. Rev. 27 (1984). We considered
this argument and law review article in Nooner v. State, supra. In
Nooner, we emphasized the United States Supreme Court's requirement
that a discriminatory purpose must be proved on the part of the
decision-maker in the defendant's particular case. McClesky v.
Kemp, 481 U.S. 279 (1987). As in Nooner, Lee's allegations are
very general. He has offered no proof to show how his due process
or equal protection rights were violated by a biased or arbitrary
judge or jury. Thus, due to absence of proof of discriminatory
purpose, we cannot say that the trial court erred in denying Lee's
motion.
VII. Severance
Finally, Lee presents the argument that the trial court erred
in denying his motion for severance of the crimes relied on by the
State as aggravating circumstances. He claims that the failure to
sever these offenses violated Rules 21 and 22 of the Arkansas Rules
of Criminal Procedure.
During the penalty phase, the State offered evidence that Lee
had previously committed three other felonies, elements of which
included the use or threat of violence to another person or the
creation of a substantial risk of death or serious injury to
another person. See Ark. Code Ann. 5-4-604(3) (Repl. 1993). The
State offered the testimony of three witnesses, all of whom
testified that Lee had raped them. The fourth aggravating
circumstance alleged was that Lee committed the murder for
pecuniary gain. The jury unanimously found that all four
aggravating circumstances existed beyond a reasonable doubt at the
time of the murder. They also found that there was evidence that
Lee's father abandoned him from birth, that he had no real father,
and that he came from a dysfunctional family. However, the jury
unanimously found that this evidence did not constitute a
mitigating circumstance. The jury concluded that the aggravating
circumstances justified beyond a reasonable doubt a sentence of
death.
Rules 21 and 22 of the Arkansas Rules of Criminal Procedure
pertain to the joinder and severance of offenses and defendants.
Particularly, Rule 22.2 provides that, whenever two or more
offenses have been joined for trial solely on the ground that they
are of the same or similar character, and the offenses are not part
of a single scheme or plan, the defendant shall have a right to a
severance of the offenses. In this case, Lee was charged by felony
information with a single count of capital murder. In this
charging instrument, Lee was accused of the premeditated and
deliberate killing of Debra Reese. The three offenses relied on by
the State as aggravating circumstances during the penalty phase
were not included in the felony information, and were not joined at
Lee's trial with the capital murder charge. Quite simply, the
rules regarding severance do not apply, as there were no charges to
sever from the capital murder charge.
Lee further claims that the admission of this evidence
violated his due process rights and subjected him to cruel and
unusual punishment in violation of the federal and state
constitutions. However, he cites no convincing authority or facts
in support of his bare assertion of error. Again, we will not
consider such unsupported arguments on appeal. Matthews v. State,
supra.
Additionally, Lee claims that the trial court should have
viewed the evidence of the three previous felonies in camera before
the evidence was presented to the jury during the penalty phase.
In support of his argument, Lee cites Miller v. State, 280 Ark.
551, 660 S.W.2d 163 (1983). In that case, the State failed to
prove beyond a reasonable doubt that Miller had previously
committed a crime involving violence. To the contrary, in this
case, the State offered proof that Lee had been convicted of one of
the rapes. Regarding the other two offenses, the State offered
testimony of the two victims as well as testimony from an FBI agent
who testified that the probability of the rapist being someone
other than Lee was one in one billion in one of the cases, and one
in eighty billion in the other. In light of this evidence, the
State proved beyond a reasonable doubt that Lee had committed these
offenses. As such, Lee cannot demonstrate that he was prejudiced
by the absence of an in camera hearing.
VIII. Other errors
The transcript of the record in this case has been reviewed in
accordance with Arkansas Supreme Court Rule 4-3(h), which requires,
in cases in which there is a sentence of life imprisonment or
death, that we review all prejudicial errors in accordance with
Ark. Code Ann. 16-91-113(a)(1987). None have been found.
Affirmed.
Newbern, J., concurs.
David Newbern, Justice, concurs.
We often refer to the "safeguards" and "protections" that we
say preclude the arbitrary imposition of the death penalty. See,
e.g., Hill v. State, 289 Ark. 387, 713 S.W.2d 233 (1986); Clines v.
State, 280 Ark. 77, 656 S.W.2d 684 (1983). We reject
constitutional challenges to our death-penalty statutes and boast
that the statutes are carefully drawn and that they comply with the
mandates of the United States Supreme Court by curtailing the
jury's discretion in meting out "this unique penalty," Gregg v.
Georgia, 428 U.S. 153, 188 (1976)(joint opinion of Stewart, Powell,
and Stevens, JJ.), quoting Furman v. Georgia, 408 U.S. 238, 310
(1972)(Stewart, J., concurring), and by permitting "the sentencer
to make a principled distinction between those who deserve the
death penalty and those who do not." Lewis v. Jeffers, 497 U.S. 764, 776 (1990).
The majority opinion in the case at bar may well sap some of
the pride we have taken in our laws promoting the orderly narrowing
of the class of persons eligible for the death penalty. Today we
sanction, as we have done before, the admission of victim-impact
evidence in the sentencing phase of a death-penalty case. Although
I concur in the affirmance of Mr. Lee's conviction and sentence, I
write separately to express my reservations about the use of
victim-impact evidence in capital cases because it may frustrate
the statutory scheme designed to provide, as it must, "adequate
safeguards against the capricious and freakish imposition of the
death penalty." Collins v. State, 261 Ark. 195, 202, 548 S.W.2d 106, 110 (1977).
The death-penalty sentencing procedures that we so often have
sustained are as follows. The jury in a capital-murder case is
required to impose the death penalty if it unanimously returns
written findings that:
(1) Aggravating circumstances exist beyond a reasonable
doubt; and
(2) Aggravating circumstances outweigh beyond a
reasonable doubt all mitigating circumstances found
to exist; and
(3) Aggravating circumstances justify a sentence of
death beyond a reasonable doubt.
Ark. Code Ann. 5-4-603(a)(Repl. 1993).
As we have held, this statute means that "[a] jury cannot
impose a sentence of death until it specifically finds that all
three parts of the statute apply." Hill v. State, 289 Ark. at 397,
713 S.W.2d at 238. Even if the jury finds beyond a reasonable
doubt that aggravating circumstances exist and outweigh any
mitigating circumstances, "it is still free to return a verdict of
life without parole, simply by finding that the aggravating
circumstances do not justify a sentence of death." Id. quoting
Clines v. State, supra. Thus, the imposition of the death penalty
is not mandatory. Moreover, "the trial judge is not required to
impose the death penalty in every case in which the jury verdict
prescribes it," id., and "[w]e have demonstrated our readiness to
modify the death sentence where it is imposed capriciously ... or
where death is unduly harsh under the circumstances." Clines v.
State, 280 Ark. at 84-85, 656 S.W.2d at 687 (citations omitted).
The aggravating circumstances that a jury may consider are
strictly limited to the following nine:
(1) The capital murder was committed by a person
imprisoned as a result of a felony conviction;
(2) The capital murder was committed by a person
unlawfully at liberty after being sentenced to
imprisonment as a result of a felony conviction;
(3) The person previously committed another felony,
an element of which was the use or threat of violence to
another person or the creation of a substantial risk of
death or serious physical injury to another person;
(4) The person in the commission of the capital
murder knowingly created a great risk of death to a
person other than the victim or caused the death of more
than one (1) person in the same criminal episode;
(5) The capital murder was committed for the purpose
of avoiding or preventing an arrest or effecting an
escape from custody;
(6) The capital murder was committed for pecuniary
gain;
(7) The capital murder was committed for the purpose
of disrupting or hindering the lawful exercise of any
government or political function;
(8)(A) The capital murder was committed in an
especially cruel or depraved manner.
(B) For purposes of this subdivision (8), a
capital murder is committed in an especially cruel
manner when, as part of a course of conduct
intended to inflict mental anguish, serious
physical abuse, or torture upon the victim prior to
the victim's death, mental anguish, serious
physical abuse, or torture is inflicted. "Mental
anguish" is defined as the victim's uncertainty as
to his ultimate fate. "Serious physical abuse" is
defined as physical abuse that creates a
substantial risk of death or that causes protracted
impairment of health, or loss or protracted
impairment of the function of any bodily member or
organ. "Torture" is defined as the infliction of
extreme physical pain for a prolonged period of
time prior to the victim's death.
(C) For purposes of this subdivision (8), a
capital murder is committed in an especially
depraved manner when the person relishes the
murder, evidencing debasement or perversion, or
shows an indifference to the suffering of the
victim and evidences a sense of pleasure in
committing the murder; or
(9) The capital murder was committed by means of a
destructive device, bomb, explosive, or similar device
which the person planted, hid, or concealed in any place,
area, dwelling, building, or structure, or mailed or
delivered, or caused to be planted, hidden, concealed,
mailed, or delivered, and the person knew that his act or
acts would create a great risk of death to human life.
5-4-604 (Supp. 1995).
Although "the jury's consideration of aggravating
circumstances is limited to those enumerated," the jury's
"consideration of mitigating circumstances is not necessarily so
restricted." Giles v. State, 261 Ark. 413, 420, 549 S.W.2d 479,
483 (1977). The General Assembly has provided that
[m]itigating circumstances shall include, but are not
limited to, the following:
(1) The capital murder was committed while the
defendant was under extreme mental or emotional
disturbance;
(2) The capital murder was committed while the
defendant was acting under unusual pressures or
influences or under the domination of another person;
(3) The capital murder was committed while the
capacity of the defendant to appreciate the wrongfulness
of his conduct or to conform his conduct to the
requirements of law was impaired as a result of mental
disease or defect, intoxication, or drug abuse;
(4) The youth of the defendant at the time of the
commission of the capital murder;
(5) The capital murder was committed by another
person and the defendant was an accomplice and his
participation relatively minor;
(6) The defendant has no significant history of
prior criminal activity.
Ark. Code Ann. 5-4-605 (Repl. 1993). See Sheridan v. State, 313
Ark. 23, 38, 852 S.W.2d 772, 779 (1993) (stating "the defense must
be allowed during the sentencing phase to introduce any relevant
mitigating evidence the defense proffers concerning the character
or history of the offender or the circumstances of the
offense")(citations omitted)(emphasis added).
The statutory provisions are quoted at length to demonstrate
exactly what the jury is permitted to consider in determining
whether to impose the death sentence. The statutes prescribe a
tidy formula. In determining whether the death penalty is
justified, the jury must consider only whether the evidence has
demonstrated beyond a reasonable doubt that (1) one or more of the
enumerated aggravating circumstances exist in the case at hand; (2)
the aggravating circumstances outweigh any mitigating
circumstances; and (3) the aggravating circumstances justify the
imposition of the death penalty.
When the jury is requested to impose the death penalty in a
capital case, its sole task during the penalty phase is to evaluate
the evidence of aggravating and mitigating circumstances and make
certain findings with respect to that evidence. Nothing more, and
nothing less, may figure into the equation according to 5-4-
603(a). Therefore, as our cases have intimated, the Trial Court
should allow into evidence during the sentencing phase of a death-
penalty case only that which is relevant to the aggravating and
mitigating circumstances alleged by the parties. See Hendrickson
v. State, 285 Ark. 462, 466, 688 S.W.2d 295, 298 (1985)(stating
"the evidence offered must be probative of some issue to be
properly considered in the penalty phase"). Where the State seeks
the death penalty, the only issue that is "properly considered" by
the sentencing-phase jury is whether aggravating circumstances
exist, whether they justify the imposition of the death penalty,
and whether they outweigh the mitigating circumstances. Thus, the
evidence presented to the jury during the sentencing phase of a
death-penalty case should be relevant to these issues.
This is the regime that we have found to be constitutionally
sound. As we have held, a sentencing structure -- such as the one
created by Ark. Code Ann. 5-4-603(a) to 5-4-605 and their
predecessors -- that permits the jury to impose the death penalty
after considering evidence of aggravating and mitigating
circumstances and making certain findings with respect to that
evidence "provides adequate guidelines, so limiting and directing
the exercise of the jury's discretion that an arbitrary,
capricious, wanton or freakish exercise of that discretion is
improbable." Collins v. State, 261 Ark. at 203, 548 S.W.2d at 111.
This particular procedure, we have found, passes constitutional
muster because it "genuinely narrow[s] the class of persons
eligible for the death penalty and ... reasonably justif[ies] the
imposition of a more severe sentence on the defendant compared to
others found guilty of murder." Lowenfield v. Phelps, 484 U.S. 231, 244 (1988), quoting Zant v. Stephens, 462 U.S. 862, 877
(1983). According to our cases, it is entirely appropriate for the
jury to perform the function of narrowing the class of death-
eligible defendants at the penalty phase of a bifurcated trial.
See Johnson v. State, 308 Ark. 7, 823 S.W.2d 800 (1992).
My concern is that the admission of victim-impact evidence in
capital sentencing proceedings pursuant to Ark. Code Ann. 5-4-
602(4)(Repl. 1993) may, without appropriate limitations, make
undesirable and unintended changes in the accepted method by which
juries in Arkansas have determined whether the "unique penalty" of
death is justified in a given case.
As noted, 5-4-603(a) mandates that the jury's decision to
impose the death penalty rest solely upon a careful evaluation of
the evidence, if any, establishing aggravating and mitigating
circumstances as they are defined by 5-4-604 and 5-4-605. The
evidence that a jury receives should be relevant to the existence,
or non-existence, of aggravating or mitigating circumstances.
Despite the logic of this position, and despite the clear mandate
of 5-4-603(a), 5-4-602(4) permits, without restriction, the
admission of victim-impact evidence in the sentencing phase of a
death-penalty case. Section 5-4-602(4) provides as follows:
In determining sentence, evidence may be presented to the
jury as to any matters relating to aggravating
circumstances enumerated in 5-4-604, any mitigating
circumstances, or any other matter relevant to
punishment, including, but not limited to, victim impact
evidence, provided that the defendant and the state are
accorded an opportunity to rebut such evidence. Evidence
as to any mitigating circumstances may be presented by
either the state or the defendant regardless of its
admissibility under the rules governing admission of
evidence in trials of criminal matters, but mitigation
evidence must be relevant to the issue of punishment,
including, but not limited to, the nature and
circumstances of the crime, and the defendant's
character, background, history, and mental and physical
condition as set forth in 5-4-605. The admissibility
of evidence relevant to the aggravating circumstances set
forth in 5-4-604 shall be governed by the rules
governing the admission of evidence in trials of criminal
matters. Any evidence admitted at the trial relevant to
punishment may be considered by the jury without the
necessity of reintroducing it at the sentencing
proceeding. The state and the defendant or his counsel
shall be permitted to present argument respecting
sentencing. The state shall open the argument. The
defendant shall be permitted to reply. The state shall
then be permitted to reply in rebuttal.
Ark. Code Ann. 5-4-602(4)(Repl. 1993)(emphasis added).
The jury's ability to perform its duty under 5-4-603(a)
could be undermined by the admission of victim-impact evidence
pursuant to 5-4-602(4). Section 5-4-603(a) requires the jury to
consider only evidence of aggravating and mitigating circumstances
in deciding whether to impose the death penalty. In the sentencing
phase of a death-penalty case, therefore, the jury, in performing
the "narrowing function" described above, should be allowed to
consider only that evidence that tends to establish the existence,
or nonexistence, of aggravating and mitigating circumstances.
Instead, the jury in the penalty phase is permitted by
602(4) to consider as well any victim-impact evidence that is
merely "relevant to punishment." The danger posed by this language
is that it could be construed as permitting the introduction of
victim-impact evidence that, while "relevant to punishment" in the
abstract, has absolutely no bearing on the only question that the
jury is supposed to consider in a death-penalty case -- that is,
whether imposition of the death penalty is justified under 5-4-
603(a) in light of the evidence concerning aggravating and
mitigating circumstances.
If victim-impact evidence is irrelevant to this determination,
then its admission in the sentencing phase would unquestionably
interfere with the jury's ability to perform its narrowing function
under 603(a). The jury clearly should not be permitted to
receive evidence that has no tendency to make the existence of
aggravating or mitigating circumstances "more probable or less
probable than it would be without the evidence." Ark. R. Evid.
401. Moreover, there is no question that 603(a), 604, and 605
do not permit the jury to rely on victim-impact evidence in
determining whether aggravating circumstances exist, whether they
justify the imposition of the death penalty, and whether they
outweigh any mitigating circumstances. Furthermore, 602(4), in
providing for the admission of victim-impact evidence, did not
create a "new" aggravating circumstance that could justify
imposition of the death penalty under 603(a). We said as much in
Nooner v. State, 322 Ark. 87, 109, 907 S.W.2d 677, 689 (1995), and
it is also evident that the fact that a murder had a certain
"impact" on the victim or the victim's survivors could not, under
the U.S. Supreme Court's death-penalty jurisprudence, constitute a
valid aggravating circumstance because it would not "genuinely
narrow the class of persons eligible for the death penalty" or
"reasonably justify the imposition of a more severe sentence on the
defendant compared to others found guilty of murder." Zant v.
Stephens, supra. Every murder results in a deleterious impact on
the victim or the victim's survivors, and thus evidence
establishing such an impact could not permit the jury to perform
its narrowing function.
To be admissible in a capital sentencing procedure, victim-
impact evidence must be directly relevant to an aggravating or
mitigating circumstance. Although 5-4-602(4) provides that
victim-impact evidence may be presented if it is "relevant to
punishment," that language, at least in the context of a death-
penalty case, should be read in conjunction with 5-4-603(a),
which requires the jury to consider only evidence bearing on
aggravating and mitigating circumstances in determining whether to
impose the death penalty. A relevancy-based limitation on the use
of victim-impact evidence is not prohibited by the language of 5-
4-602(4). In fact, unless these statutes are interpreted as
imposing this limitation, the statutes will have the absurd result
of permitting the admission of evidence that can have no effect on
the jury's decision to impose the death penalty. In a death-
penalty case, victim-impact evidence should not be admitted if it
will distract the jury from completing the task assigned to it by
603(a). Evidence that is irrelevant to an aggravating or
mitigating circumstance would do just that.
The U.S. Supreme Court held in Payne v. Tennessee, 501 U.S. 808 (1991), that the Eighth Amendment to the U.S. Constitution
imposes no per se bar to the introduction of victim-impact evidence
in a capital sentencing proceeding. In the Payne case the Court
held
that if the State chooses to permit the admission of
victim impact evidence and prosecutorial argument on that
subject, the Eighth Amendment erects no per se bar. A
State may legitimately conclude that evidence about the
victim and about the impact of the murder on the victim's
family is relevant to the jury's decision as to whether
or not the death penalty should be imposed. There is no
reason to treat such evidence differently than other
relevant evidence is treated.
Payne v. Tennessee, 501 U.S. at 827. The Court reasoned that
victim-impact evidence "is simply another form or method of
informing the sentencing authority about the specific harm caused
by the crime in question, evidence of a general type long
considered by sentencing authorities," and that such evidence could
reasonably assist the jury in "assess[ing] meaningfully the
defendant's moral culpability and blameworthiness." Id. at 825.
See generally K. Elizabeth Whitehead, Mourning Becomes Electric:
Payne v. Tennessee's Allowance of Victim Impact Statements During
Capital Sentencing Proceedings, 45 Ark. L. Rev. 531 (1992).
Although it is difficult to think of victim-impact evidence
that might add to any of the statutory mitigating factors, perhaps
such evidence could relate to one of the statutory aggravating
factors, although it is hard to imagine how unless it would be
admissible regardless as direct evidence of one of the statutory
aggravating factors. Given the manner in which we have attempted
to satisfy the constitutional requirement of narrowing the class of
persons eligible for the death penalty, however, we should not
allow victim-impact evidence in a capital sentencing proceeding
unless it is directly relevant to the elements of mitigation and
aggravation specified in the statutes. See, e.g., Lambert v. State,
1996 WL 744864 (to be reported at 675 N.E.2d 1060, ___ (Ind. 1996))
(holding that, "in death penalty cases, the only admissible victim
impact testimony is that testimony which is relevant to a statutory
aggravating or mitigating circumstance"). See also Bivins v. State,
642 N.E.2d 928 (Ind. 1994).
In the case at bar, I have serious doubts whether the victim-
impact evidence presented to the jury was relevant to any of the
aggravating and mitigating circumstances raised by the parties.
Mr. Lee did not, however, seek to exclude that evidence on the
basis of relevancy. Likewise, on appeal, Mr. Lee raises no
relevancy-based argument. He simply argues that the victim-impact
statute violates due process and that we should reconsider our
previous holdings affirming the validity of 5-4-602(4). I agree
that suppression of the victim-impact evidence in this case was not
required on the basis of the arguments presented to the Trial Court
and to this Court on appeal, and I therefore concur in the result
reached by the majority.
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