Arkansas Criminal Appeals

It was an extremely bittersweet week at the Arkansas Court of Appeals.  I won an appeal that required the judges to reject both an arrest warrant as justification for entering a home and exigent circumstances; however, I lost one that simply required the judges to follow the law and not create new law to affirm.

In Gutierrez v. State, the Arkansas Court of Appeals reversed and remanded the convictions and suppressed the evidence discovered as a result of an unlawful search and seizure.  DEA officers used an arrest warrant for Appellant’s nephew to enter the residence and discovered guns and drugs along with Appellant in the residence.  The State argued that the arrest warrant permitted them to enter the house because they had seen Appellant’s nephew at the house the day before.  The trial court rejected this contention because there was no indication that he was there on the day of entry.  Of particular importance was the lack of vehicle at the residence.  The State then contended that exigent circumstances permitted entry because one of the windows was broken and an agent testified that methamphetamine traffickers will kidnap and torture individuals.  The Arkansas Court of Appeals rejected this as mere speculation and conjecture, and not based upon the facts of this case.

In Todd v. State, the Arkansas Court of Appeals rejected six claims of error.  Most notably, the Court rejected Appellant’s contention that the trial court erred excluding a psychologist from testifying that Appellant is not a pedophile; therefore, he is less likely to have gone to meet the underage female for sexual purposes.  In doing so, the Court of Appeals was unclear what rationale it actually adopted as a basis for its decision.  It appears as though the Arkansas Court of Appeals affirmed based upon the Arkansas Supreme Court holdings that psychiatric testimony that attempts to establish a defendant’s state of mind at the time of a particular crime is not admissible.  There are two primary problems with this ruling.  First, these holdings have NEVER been applied outside of the context of murder.  Second, the psychologist here was not going to say Appellant’s state of mind at the time of the crime, rather, he was simply going to say he is not a pedophile and it’s less likely he went for sex.  It is unbelievable that the learned judges could come to such an absurd ruling.  It simply goes to show the lengths some judges will go to make sure “justice” is done in their eyes, even if it means disregarding the law.

After a month, the Arkansas Court of Appeals came back with a decision denying Robelo relief on his Petition for Rehearing.  The irony is that it went to a five judge panel, and a new opinion was written; however, the result was the same.  At least the judges on the Court of Appeals realized their obvious oversight of the critical facts.  Yet, with their ingenuity, they contrived a new way to deny Robelo justice. The new opinion held that, because a search warrant was obtained for Apartment A, the jury could reasonable conclude that a drug transaction with the confidential informant took place in Apartment A.

This is more ridiculous than the original opinion, which simply overlooked the operative facts.  Instead, this opinion creates more questions than answers.  Essentially, the Court is stating that a jury can infer that the search warrant was based on what happened on a particular day in a particular place for a particular reason, yet there be no evidence of that in the record.  SHOCKING?  No.  This is simply another case where judges desired a result and were willing to say anything to get to it.

The one honest judge:  Judge (soon to be Justice) Jo Hart.  Judge Hart concurred, and stated that there was NO EVIDENCE that a transaction occurred in Apartment A.  However, my problem with Judge Hart’s concurrence, is that it does not detail what the additional linking factor is if it is not the transaction in Apartment A.

It is getting to the point with the Arkansas Court of Appeals that I am more amused at the unbelievable reaches made in the criminal opinions than I am shocked or outraged.  I look forward to the new batch of judges to appear at the Court.  Hope is all I have, something Jomy Robelo was robbed of.

The Arkansas Court of Appeals got back in session this week after an extended summer break.  They started off easy by deciding several no-merit appeals that had been sitting on their docket for some time.  As for me, this new session has some promise.

The Arkansas Court of Appeals has actually taken a long look at the Petition for Rehearing filed in Robelo v. State.  The Petition was submitted on August 15, along with several other petitions.  All other petitions have been denied except for Robelo’s.  Typically, but not always, the longer the decision takes to come down the more likely it is that the Court will reverse.  So I will keep my fingers crossed for a reversal in Robelo’s case.

Currently, I have 10 cases awaiting decision at the Arkansas Court of Appeals and Arkansas Supreme Court.  I also have three cases with pending oral argument requests.  This is shaping up to be a busy and exciting session on this blog.

In Robelo v. State, the Arkansas Court of Appeals appears to have invented facts to make their decision easier to make.  The case revolved around the sufficiency of evidence linking Robelo to drugs found in a jointly occupied residence.  The State must prove additional linking factors other than mere presence to connect Robelo to the drugs.  The State attempted to show a drug deal took place between Robelo and a CI.  However, neither officer that followed the CI and Robelo back to an apartment complex could see where they went or if they went to the same place.

Fortunately for the State, the Arkansas Court of Appeals went ahead and decided that not only did a drug deal take place, but also that it took place between Robelo and the CI in apartment A.  Then of course found that to be a sufficient link to connect Robelo to the drugs.  It is incredible that the Court of Appeals could determine that a drug deal took place in apartment A between Robelo and the CI when the officers could not.  Officer Holmes stated, “I was able to look back at the apartment, but I didn’t see anything until the informant left. ”  Then later testified, “I didn’t see anyone going in and out of apartment A.”  Investigator Medina simply said that he was at the park and could not get close.

So I ask once more, how did the Court of Appeals see Robelo and/or the CI go into apartment A if the officers did not?