Arkansas Criminal Appeals

It is extremely rare that the Arkansas Court of Appeals decides a questionable case in favor of the defendant.  It is even rarer that the Arkansas Supreme Court overrules a Court of Appeals decision of whether there was reasonable suspicion.  I have a few problems with the decision in Menne v. State besides the outcome.

The case was very straightforward.  The facts are that Defendant was stopped for speeding.  She was detained to run the license and registration.  After the officer completed his typical checks, he asked Defendant to step out of the car.  After speaking to Defendant for a minute he asked if she would consent to a search of her vehicle.  She complied. 

The issue was two-fold.  First, whether the stop had ended even though the officer had not given the documents back to Defendant.  Second, if the stop had ended, whether the officer had reasonable suspicion to further detain Defendant to ask for consent to search.

First, Rule 2-4(c) of the Arkansas Supreme Court lays out reasons for granting a Petition for Review from a decision of the Court of Appeals.  The reasons are: a tie vote, conflict with another published decision, or if the case could have initially been filed with Arkansas Supreme Court instead of the Court of Appeals.  None of these seem to apply.  The case was not a tie vote below, it did not conflict with any other published decision, and it certainly could not have initially been filed with the Arkansas Supreme Court.  The only rationale asserted was surely a conflict with another case, but how can a judgment call on reasonable suspicion be in conflict with a case involving different facts?  This case should not have been reviewed.  The Supreme Court’s acceptance of this case effectively means the Supreme Court is willing to error correct in cases it so chooses.  That is not supposed to be the function of the Supreme Court.

Second, the majority states that they need not decide the issue of whether the stop ended because the officer possessed reasonable suspicion for continued detention.  The problem is that the majority specifically does answer that issue by stating, “The stop, however, had not ended because the warning ticket had not been given to Menne.”  The majority was clearly upset by the strong worded attacks from the dissenting justices and could not refrain from firing back.  Regardless, the rule coming out of this case is that an officer can detain a person for as long as he so desires as long as he does not give the person’s paperwork back to them and issue them a ticket.  What a great rule!  The dissenting opinion by Justice Baker (“the great dissenter”) cites multiple U.S. Supreme Court cases for the proposition that a stop cannot be legally prolonged byond the time reasonably required to complete the purpose of the stop. 

Lastly, the majority found reasonable suspicion b/c it was late, Defendant was nervous, and Defendant had been arrested for drugs before.  Anyone asserting that Defendant had drugs in the car based on those facts is doing so based on complete conjecture.  Although those facts are found in A.C.A. 16-81-203 as grounds for reasonable suspicion, together they do not amount to anything more than a hunch Defendant has drugs in the vehicle.  Consequently, I cannot fathom how the Arkansas Supreme Court ruled this way or even accepting the case on review from the Court of Appeals.

The Supreme Court heard oral argument in the case of Vadarian Meadows.  Meadows was convicted of Capital Felony Murder and sentenced to life in prison without parole.  Today at the Supreme Court there was a familiar principle argument being heard.  Appellant asked the Court to overrule countless opinions holding that the Capital Felony Murder and Felony Murder in the First Degree statutes are identical with respect to Robbery; therefore, they are void for vagueness.

The Court has rejected this argument over and over because looking at the two statutes independently they are not vague.  Each statute spells out exactly what is prohibited.  Appellant’s argument avoided this issue entirely.  Appellant repeatedly harped on the fact that one of the jurors contacted defense counsel after deliberations and stated that the jury felt like it had to select Capital as opposed to First Degree.  This is true.  The jury is not allowed to consider a lesser-included until it has acquitted of a greater charge.  If the two charges are the same then a defendant can never theoretically get convicted of the identical lesser.  However, this does not mean they are vague.  They are simply overlapping and the prosecuting attorneys in Arkansas may seek either at their discretion.

Regardless, the case has a few holes.  Appellant failed to preserve the issue by filing a motion prior to trial on the issue of vagueness.  Appellant also cannot use the jury deliberations to support his argument because Rule 606 prevents a court from inquiring into the deliberations to protect the sanctity of deliberations.  Therefore, ultimately this challenge will fail.

In other news, the Arkansas Supreme Court overruled a multi-million dollar verdict against Yanmar, Inc. on the basis of insufficient evidence and lack of personal jurisdiction.  The opinion was well-written and kudos go to Appellant’s attorneys for a great job at oral argument.

The Arkansas Supreme Court dismissed the appeal in Lynn v. State.  The issue is whether an appeal can be had from a judgment and disposition order if the trial court sentenced the defendant to Act 346.  The Court cited Rule 1(a) of the Arkansas Rules of Appellate Procedure – Criminal and found that only appeals from “convictions” are available as a matter of right.  The Court recognized that it has stated on multiple occasions that a guilty plea under Act 346 is not a conviction.  Consequently, the Court found that the appellant had no right to appeal and dismissed the appeal.

After a huge decision last week in Erickson Dimas-Martinez, the Supreme Court has continued its surge of protections for criminal defendants.  This week the Supreme Court authored two important decisions in criminal defense.

In Mendez v. State, the Court was faced with the task of clarifying Arkansas Rule of Evidence 1009, which deals with translations of recordings or documents.  The Rule comes into effect when parties disagree about the translation.  Here, Mendez used certified interpreter Nicolas Durand (whom I must say is amazing) to interpret and translate the audio recording of an interrogation.  Durand’s interpretation was that Mendez stated that he “did not” grab the alleged victim’s neck.  The State’s interpreter translated the recording to say that Mendez “did” grab the alleged victim’s neck.  The problem for the State was that their interpreter was not certified and in fact failed certification exams.  Therefore, according to Rule 1009, the only interpretation that should have been permitted is Mendez’s because it was done by a certified interpreter.  The Court allowed in both translations, which the Supreme Court ruled was reversible error.

The Supreme Court announced a huge shift in policy in Smoak v. State.  Previously, the Supreme Court had adopted the policy that criminal defendants must either elect to deny the accusations or assert an entrapment defense but could not do both.  In Smoak, the Court adopted the Mathews rule from the Supreme Court of the United States, which holds that a defendant may argue inconsistent defenses so long as substantial evidence supports each defense.  This is an important shift and one that impressively recognizes that defendants should have the full array of possible defenses to any charge considering their liberty is at stake.

There was a powerful dissent in Smoak that argued that Appellant did not preserve the issue but agreed with the Mathews rule.  Appellant never proffered an entrapment defense instruction and the dissent argued that it should prevent them from arguing it on appeal.  While I think typically the Supreme Court goes out of its way to not address issues, here the Court did just the opposite.  The Court took sympathy on the trial attorney because she was threatened with contempt for continuously arguing that she should be allowed to have the jury instructed on inconsistent defenses.  To be honest, Justice Corbin is usually one of the first to come to the defense of the rights of Appellants but here he recognized the longstanding rule that an Appellant must proffer the instruction to preserve it for appeal.  Regardless, good law was made and it appears the several members of the Supreme Court that are leaving the Court soon are trying to go out with a bang!

While it was an uneventful week for the Court of Appeals, it was a huge week for the Arkansas Supreme Court.  Although not important in the criminal world, the Arkansas Supreme Court upheld the trial court’s finding that the punitive damages cap was unconstitutional.  However, the truly important case decided was Erickson Dimas-Martinez v. State.

This was an appeal from a death sentence, which I would argue plays a large role in the court’s decision to reverse although the court never explicitly says so.  From oral argument it appeared the real issue was the Caldwell violation where the trial judge repeatedly stated that the Arkansas Supreme Court would review the decision with a fine-toothed comb.  However, in Justice Corbin’s opinion he chose not to address that issue because the case was reversed on other grounds and because the trial judge has since retired Corbin did not feel the issue would arise again.

The issue that ruled the day, and has since created international buzz, deals with juror misconduct and the failure of the trial judge to declare a mistrial or replace the juror with an alternate.  There was one juror who slept through part of the trial and another who tweeted during the trial and deliberations.  The juror who slept was supposedly only out for five minutes of technical testimony.  The tweeting juror allegedly never corresponded with anyone.  Therefore, the State argued that because there was nothing “important” missed by the sleeping juror and there was no back and forth in the tweets there could not be a showing of prejudice.  Justice Corbin ruled that because the two jurors so adamantly disobeyed the judge’s instructions it could be presumed that they were not going to follow any of his instructions, which deprived the defendant of a fair trial.

This decision sets a very impressive precedent that should heavily impact trial judges in the future.  However, while trial judges are going to focus on taking away cell phones or monitoring jurors closer, the real focus needs to be on trial judges recognizing when a juror is not following or is not capable of following his instructions.  It was not the sleeping or tweeting that got the case remanded for a new trial, it was the simple fact that the judge recognized they were not following his instructions and failed to replace them with jurors who would take their job seriously.

As mentioned in a previous post, Janice Vaugn’s performance at oral argument was far superior to the performance of the Assistant Attorney General, Eileen Harrison.  While it likely did not influence the Court’s ultimate decision, Ms. Harrison’s claims at oral argument that as long the juror heard the majority of the testimony there is no problem, and that the tweeting juror actually did not defy any of the judge’s orders, certainly reinforced that the Court was deciding for the correct party.

This morning oral argument was heard at the Arkansas Supreme Court in the case of Erickson Dimas-Martinez v. State.  The jury sentenced Martinez to death.  There were two primary issues before the Court.

First, whether the trial judge committed a Caldwell v. Mississippi violation by informing the jury that the Arkansas Supreme Court would automatically review the case with a “fine-toothed comb.”  The trial court did give curative instructions; however, the judge began the instruction by stating that he understood the jury would be unable to follow the instruction.  Therefore to call the instruction “curative” is quite a stretch.  The judges seemed more focused on the second issue, which dealt with a tweeting juror and a sleeping juror.  The judges and Appellant attorney seemed quite outraged not that someone would sleep or tweet during the trial but that the State’s position on each was that nothing wrong happened.  The State actually took the position that as long as a majority of the trial was listened to by the juror he is fit to serve.  Justice Corbin even went so far as to ask the State if she would mind if he texted or slept during her argument and assumed that he did not miss anything important.  The State also misled the justices on several important facts that were later corrected by Appellant’s attorney; such as, whether the tweeting occurred during testimony and whether the judge instructed the jurors not to tweet at all.  To the amazement of the justices, the State was resolute that the small nap and the tweeting were not improper.  The importance of the second issue is that if a juror cannot follow a judge’s instructions in one respect, how can he be expected to follow another instruction, such as a curative instruction.

Ultimately this case will be helpful in guiding our lower courts on juror misconduct and Caldwell issues.  Although I do not think much was gained by the Appellant through oral argument, I certainly think the State lost a great deal of credibility with the Court.  The failure to make proper concessions and the multiple occasions upon which the State misled the Court will certainly weigh on the justices while they are in conference.  Additionally, the State’s poor form in speaking over the justices and interrupting them will certainly hinder anyone from wanting to see the State prevail in this case.

Oral argument video http://arkansas-sc.granicus.com/MediaPlayer.php?view_id=4&clip_id=282

News article can be found at http://arkansasnews.com/2011/11/17/lawyer-tweeting-sleeping-by-jurors-cause-to-overturn-murder-conviction/

Upon an initial scan of the new decisions from the Arkansas Supreme Court I saw several reversals and assumed some great case law was made.  Unfortunately, those reversals were State appeals.

In State v. Cantrell, the reversal was of a circuit court’s grant of a new trial based upon ineffective assistance of counsel.  The Arkansas Supreme Court agreed with the State that it was improper to allow the defendant to invoke the attorney-client privilege in a Rule 37 hearing.  The rule is clear that once a defendant files a Rule 37 petition, the attorney is allowed to disclose everything he knows about the defendant and the underlying case.  So ultimately it is hard to disagree with this ruling.

In State v. Kindall, the circuit court judge simply failed to include his findings when he allowed the rape shield to be pierced.  The judge is required to make specific findings on what evidence will be allowed and the relevancy of the evidence.