Arkansas Criminal Appeals

Alvin Ray Williams was convicted of first-degree murder and sentenced to life imprisonment in 1994.  Williams was denied relief in the direct appeal and petition for ineffective assistance of counsel.  In December of 2015, Williams filed a petition to reinvest jurisdiction in the Pulaski County Circuit Court to hear his petition for writ of error coram nobis.  Essentially, Williams argued that law enforcement withheld evidence that would have supported his self-defense claim.  The Arkansas Supreme Court granted his petition and sent the case down to the Pulaski County Circuit Court.

The Pulaski County Circuit Court denied Williams a hearing on his petition and denied the appointment of counsel.  The Circuit Court’s order did not contain any reasoning or legal analysis.  Thus, the Circuit Court denied the petition on the same evidence that the Supreme Court remanded the case.

On appeal, Williams argued that he was entitled to a hearing and the appointment of counsel.  Williams maintained that the Circuit Court was required to hold a hearing when the case was remanded.  The Supreme Court agreed and cited Penn v. State, 282 Ark. 571, 577, 670 S.W.2d 426, 429 (1984) (“If [the petition for writ of error coram nobis] has merit, by all means a writ should be granted; if the petitioner fails in his burden of proof, then at least a hearing will have resulted. There will be no void in the system as there is now.”)

The result was certainly expected; however, there were notable concurring and dissenting opinions.

The concurring opinion by Justice Hart was a dynamic indictment of the current mindset preferring procedural hurdles and finality to addressing the merits and justice.  Justice Hart condemned the current practice of requiring “due diligence” to be shown in a petition for error coram nobis relief.  Essentially, Justice Hart argued there are two problems with the current requirement.  First, the Arkansas Supreme Court has not consistently defined the “due diligence” requirement.  Second, she eloquently stated, “The people of the State of Arkansas gain nothing by unjustly imprisoning one of its fellow citizens.”  Fundamentally, she made it clear that justice should never be trumped by procedural pitfalls.  Unfortunately and unsurprisingly, Justice Hart was alone in feeling that way.

The dissenting opinion by Justice Wood, which was joined by Chief Justice Kemp, was hopefully an error in word-play.  Justice Wood argued that the appeal should be affirmed because “due diligence” was not complied with, as she argued unsuccessfully in the original grant of the petition to reinvest jurisdiction.  Justice Wood was taking issue with the merits of the error coram nobis petition; however, the merits of the petition were not up for consideration.  Rather, the issue was simply when a petition to reinvest jurisdiction is granted, should the trial court be required to hold a hearing and make findings.  The answer based upon case law is clearly yes.  Justice Wood instead addressed the merits of the argument to reassert her belief that the petition to reinvest jurisdiction should have never been granted.  Bryan Garner has written and spoken numerous times that the party that controls the question controls the answer.  It seems Justice Wood was trying to answer a different question to arrive at a different answer.

On January 25, 2017, there were three decisions worth discussing handed down by the Arkansas Court of Appeals.

In James Bynum v. State, the Court reversed and dismissed ten convictions for sexual assault in the fourth degree because they were filed outside the statute of limitations.  The remarkable portion of the opinion is that the Court did so despite recognizing that the argument was never made to the trial court.  The Court noted that the issue of whether the charges were filed within the statute of limitations was a jurisdictional issue, thus, the matter could be addressed for the first time on appeal.  The Court did uphold his other convictions, which included a sentence of over 40 years.  Thus, the Court’s reversal does not mean much in the long run for Bynum.

In Jaylan Ealy v. State, newly elected Judge Klappenbach wrote his first opinion, which affirmed a terroristic act conviction.  Ealy argued that terroristic act required that a defendant “shoot at a conveyance.”  He argued that he shot at a person and not the conveyance.  The Court recited the well-known rules of statutory construction, including the rule of lenity, and decided that the “plain language” of the statue provided that the aim of the statute was to criminalize attempts to injure individuals and the secondary act was shooting at the conveyance.  The Court then got into the legislative intent of the statute.

There are two critical problems with this Court’s analysis.  First, expressing the “goals”  of the legislature based on the language is getting into the legislative intent.  Second, legislative intent is not supposed to be discussed unless the court finds there is not a plain language meaning.

When a statute is clear, however, it is given its plain meaning, and this court will not search for legislative intent; rather, that intent must be gathered from the plain meaning of the language used. Ford v. Keith, 338 Ark. 487, 996 S.W.2d 20 (1999).

Thus, the entire Court’s analysis of the legislative intent is premised on a finding that the statute is ambiguous.  That should lead the Court to the rule of lenity; instead, the Court claimed it was going a plain language analysis so it did not have to deal with the rule of lenity.  The analysis is incorrect.  Essentially, the Court worked backwards from the legislative intent to the plain language. I hope the Arkansas Supreme Court takes a look at this on review to keep case law consistent.

In Lawana Stockstill v. State, the Court of Appeals upheld the conviction of Stockstill for terroristic threatening, despite the fact that there were never any threatening words.  Terroristic threatening requires “communication of a threat with the purpose of terrorizing another person.”  The Court held that words were not required, and the conviction is based on the fact that Stockstill “chased Jackson around their home with a knife and stabbed him multiple times.”   I cannot imagine Stockstill’s purpose of chasing and stabbing was to terrorize with fear, rather I believe the purpose was to stab Jackson.  However, I was not on the jury.  I presuppose, based on Stockstill, that every case of murder, battery, or assault where the victim saw the assailant could  include a charge for terroristic threatening.

The Arkansas Supreme Court handed down its first substantive criminal law opinion of the new year with the new justices in Hartman v. State.

Hartman was tried and convicted for rape of his stepdaughter.  Hartman’s defense was centered around the lack of penetration, which is an essential element of rape.  In closing, defense counsel referred to Hartman as a “purveyor of young girls,” “pervert,” and “scallywag,” among other concessions of his guilt of “something.”  Hartman’s appellate attorney argued these comments were improper and prejudicial; thus, Hartman should receive a new trial.

The Arkansas Supreme Court stated,

The trial court was correct that the only avenue available to counsel given the evidence was to distinguish appellant’s admitted conduct from the requirements of the offense charged. In order for such a strategy to have any chance of succeeding, the jury had to see counsel as a reasonable, credible person.

In theory, the rationale seems perfectly fine.  However, the Arkansas Supreme Court has recently rejected arguments about the importance of defense counsel’s credibility.

For example, in Maiden v. State, the prosecuting attorney failed to disclose that the co-defendant changed his story about actually seeing the murder prior to trial.  Defense counsel asked for a mistrial, and argued on appeal one should have been granted because his credibility was shot with the jury.  Defense counsel’s entire opening and entire strategy was that no one will say they saw the murder, but prosecuting attorney hid evidence contrary to that and only revealed that evidence mid-trial.  Justices Hart and Baker, in dissent, were the only justices that then concerned themselves with counsel’s credibility, stating:

In the only statement that the prosecution provided to the defense, Emerson stated that he did not witness the murder. This led Maiden’s attorneys to craft a defense in which they sought to establish reasonable doubt as to the identity of Kylaus Williams’s shooter. In laying out this defense in opening statement, Maiden’s trial counsel repeatedly asserted that no one would testify at trial that they had witnessed the murder.  Emerson’s testimony destroyed the foundation upon which the defense built its theory of the case. It left Maiden’s defense team scrambling to re-tool its defense midtrial. Moreover, and perhaps more important, Emerson’s testimony destroyed any credibility Maiden’s defense team had with the jury. It is troubling that the majority ignores the significance of this fact.

On one hand it is reasonable to call your client a pervert, scallywag, purveyor of young women, and even concede illegal actions in an effort to obtain such valuable credibility with the jury.  Meanwhile, if defense counsel gives a false opening statement because the prosecuting attorney hid evidence, well, that is okay because credibility of counsel is not that important.  It seems to reason that those are not consistent treatments of the importance of credibility of counsel.  Importantly, both cases resulted in life sentences.

Additionally, in Hartman, defense counsel failed to put on evidence that Hartman had an STD and the alleged victim did not.  At a hearing, defense counsel testified that he did not put on evidence of that fact because he was unaware that Hartman had an STD.  After the hearing, appellate counsel discovered defense counsel’s notes concerning Hartman having an STD.

Ultimately, in Hartman case will not have profound impact on future cases or the practice of law, but it underscores an inconsistency in Arkansas jurisprudence.

Numerous articles, including this one from the Arkansas Democrat-Gazette, exposed the tens of thousands of dollars members of the Arkansas Supreme Court received for their campaigns from class action law firms.  Additionally, Justice Wood has come under attack in a Democrat-Gazette article for taking money from Michael Morton and failing to recuse off of a case involving him.  Morton has also been linked to bribery payments to convicted former judge Michael Maggio.

I absolutely support Justice Wood’s decision not to recuse off of the case.  Campaign contributions are an effort to see a judge or justice elected who has demonstrated decision-making in line with the contributor’s values and interests.  If the judge or justice were to recuse every time money was contributed, then they would not be able to decide cases involving people that care about judicial decisions and make contributions to either side.  Or, even worse, people who wanted to see someone elected because of their values and interests would be unwilling to make contributions because the very best judges and justices must then recuse.  Lastly, someone who wanted a judge or justice to recuse off of their cases because they do not see eye-to-eye on certain issues could simply give campaign contributions, thus eliminating all judges or justices they desire.  All of those outcomes could have a detrimental impact on the judiciary.

The elephant in the room is the assumption that campaign contributions are given to influence judicial decisions.  A quid pro quo is illegal.  Thus, if there was evidence that a contribution was given in exchange for a friendly decision, then the law will prosecute those individuals, like Maggio.  There is no evidence that took place with Justice Wood.

Ultimately, we elect judges and justices because of their legal acumen and moral compass.  Justice Wood has not demonstrated any ethical failures during her time on the Arkansas Supreme Court, in fact, she has openly encouraged a higher level of transparency.  Unless I find out otherwise, I support Justice Wood’s decision not to recuse.

There are a few cases that have been submitted recently that present interesting issues.

Adam Lane v. State – This case deals with the intersection of knock and announce requirements with parole search waivers.  The question is whether a parole officer has to knock and announce when he is executing a search of a parolee, and if so, whether the exclusionary rule applies.

State v. Christopher Martin – The State is appealing the trial court’s grant of a judgment of acquittal after suppression of all of the evidence after the State rested.  The State is arguing that the suppression of the evidence, even if correct, does not entitle the defendant to a judgment of acquittal.  On that point, the State is correct.  However, the true test for the Court will be whether it addresses the merits.  The State never made that argument to the trial court.  If the Court addresses the merits, then there will be numerous citations to this case in the future from defendants that have preservation issues.

Alvin Ray Williams v. State – The Court previously granted a request to recall the mandate to allow Williams to move forward with an error coram nobis petition based on a Brady violation in his murder conviction.  Upon remand to the trial court, the trial court entered an order dismissing the petition without any findings of fact, conclusions of law, or a hearing.  Based upon case law it seems mandatory that the trial court conduct a hearing after the mandate is withdrawn.

Schnarr v. State – This was previously written about here.

Richard Schreck v. State – This is from a grant of a petition for review. The Court of Appeals affirmed.  Justice Wood voted to deny the review; thus, it is likely Shreck is down one vote. This case tests the limits of what can be introduced at sentencing phase.  Here, the State introduced evidence that Schreck chatted about “snuff” films involving a female being killed for sexual purposes.

Arkansas Supreme Court Chief Justice Kemp graciously accepted an invitation to speak at the monthly luncheon of the Pulaski County Bar Association.  He set forth two main topics – civility among lawyers and goals for the Arkansas judicial system.

Chief Justice Kemp spoke passionately about the need for civility in society, and more specifically, among lawyers.  He stressed his desire for attorneys to remain humble after victory and gracious after defeat.  He stated that he would be involved in the Committee on Professional Conduct and wanted to work with Stark Ligon on enforcing the requirement of civility.

This is not the first time Chief Justice Kemp has spoken on the matter and I suspect it will not be the last time either.  There’s nothing wrong with preaching compliance with the rules; however, the last year will be far more renown for the lack of ethical behavior among Arkansas judges and the lack of civility among members of the Arkansas Supreme Court.  As Benjamin Franklin said, “Well done is better than well said.”  Time will tell if the Arkansas Supreme Court’s infighting continues under Chief Justice Kemp, or if the Court is able to provide an example for the rest of us.  I have always found Chief Justice Kemp to be above reproach when appearing before him in circuit court, although I could say the same for the other members of the Court.  When you are king alone it is far easier to remain civil and dispel discord, but the true challenge awaits when there are seven kings with their own opinions on hot button cases or issues.

Chief Justice Kemp also mentioned goals he had for his tenure as head of the Court.  As far as criminal issues go, he mentioned holding criminals accountable and expansion of drug court opportunities.  I cannot remember anyone speaking out against drug courts that has had the opportunity to see them in action.  That being said, I’m unsure what was meant by holding criminal accountable.  I do not see where our system has failed to do that in the past nor do I see where our jails and prisons could withstand a reform that led to an uptick in incarceration rates.  It also concerns me to hear that from someone who is going to be making decisions on criminal appeals where it is clear that a correct legal ruling will result in the criminal going free.  Sometimes the choice will be upholding the law or allowing the criminal to go free.  In those moments, I hope we have elected someone who chooses the law.

William Roper: So, now you give the Devil the benefit of law!

Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?

William Roper: Yes, I’d cut down every law in England to do that!

Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!

The new members of the Arkansas Supreme Court participated in oral argument for the first time.  There were three issues in Schnarr:

First, Schnarr argued that the Court should overrule case law preventing a defendant from adducing evidence of an alleged victim’s character for violence and specific acts of violence.  Second, the Court should reverse and remand for a new trial because the trial court denied Schnarr the right to a public trial.  Third, the Court should reverse due to the trial court’s failure to give a negligent homicide and imperfect self-defense instruction.

Jeff Rosenzweig, Schnarr’s attorney, spent the vast majority of his brief focused on the first issue. He spent two-thirds of his initial brief trying to explain to the Court the history of how case law got off-track and misapplied. I can imagine that Mr. Rosenzweig has fought this fight a number of times with Arkansas appellate courts in an effort to correct this law.  During Mr. Rosenzweig’s argument, it was clear that Justice Goodson and Justice Wood were hostile to the argument.  I don’t know if it’s because they don’t understand the argument, have no interest in reversing precedent, or had already made up their minds.  It does seem that the two of them fail to follow the argument that evidence of the alleged victim’s violence makes it more likely that Schnarr testified accurately and truthfully about the alleged victim’s violent behavior on the date in question.  If the jury believes that Schnarr testified accurately and truthfully, then they could find he was reasonable in his self-defense.  However, what Justice Goodson and Justice Wood take for granted is that Schnarr’s testimony was believed to be accurate and truthful.  Instead, they skipped to whether he was reasonable, but before you can assess reasonableness you must decide the facts.  The issue itself is very important to criminal law practitioners.  The inability to show jurors that the alleged victim in a self-defense case is a violent person has likely changed the outcome in numerous cases.  If Rosenzweig can get the Court to begin permitting the introduction of this evidence, then it will likely make self-defense claims far more viable.

The second argument revolved around whether the exclusion of Schnarr’s family from voir  dire violated his right to a public trial.  This issue seemed to garner a vast majority of the Court’s attention, particularly with the Assistant AG.  It was one of the most active oral arguments from Justice Wood.  She asked several questions effectively trying to focus the Assistant AG on what is important legally.  It seemed Justice Goodson had interest as well trying to get a legal analysis, as opposed to abstract factual analysis, out of the Assistant AG.  Justice Hart was also lively in the discussion on this point.  The real focus of the Court was trying to figure out what legal standards to apply, especially in light of the failure of the Court to take testimony or make credibility findings. At one point, it seemed as though newly elected Justice Womack decided to help out the Assistant AG.  The questioning justice was off-screen online so I cannot be certain it was him or Justice Wynne.  Regardless, it was an awkward moment where Justice Womack decided to make numerous arguments for the Assistant AG and the Assistant AG could simply stand at the podium and affirm the statements.

Similar to issue one, the third issue got little airtime with the Assistant AG.  It is another battle that takes place on an intellectual level that takes some work.  The Court has to realize that imperfect self-defense could equally lead a jury to manslaughter OR negligent homicide.  It is also beyond me why we have so few proper criminal instructions.  We need more people that actually try cases, like Mr. Rosenzweig, on the committee for criminal jury instructions.

Of note, with the legendary former Chief Justice Hannah no longer at the helm, it seemed that the justices were avoiding speaking into their microphones.  For the public watching online, it was frustrating and made me think even more fondly of former Justice Hannah for his insistence that the microphone be used.

*Update – I have learned that Justice Wood encouraged her Twitter followers to watch oral argument today.  I wonder if that possibly played a role in her liveliness during oral argument or she encouraged her followers to watch because she believed the issues to be exciting.  Regardless, I think it’s a positive development that our justices are encouraging the public to be a part of the appellate process.

In two recent cases the Arkansas Supreme Court has reversed the trial court for not conducting hearings on Rule 37 petitions alleging ineffective assistance of counsel.

In Robert Lee Sandrelli v. State, 2016 Ark. 103, the appellant raised three arguments for ineffective assistance of counsel. First, the attorney had resigned as managing public defender and was under emotional and professional stress.  Second, the attorney failed to call any witnesses on Sandrelli’s behalf.  Third, the attorney unilaterally decided that Sandrelli should not testify.

On the first issue, the Court affirmed the trial court because Sandrelli did not argue how the attorney’s stress caused him to under perform at trial.  However, the Court agreed that a hearing was necessary on the last two issues.  The Court noted that calling witnesses is generally a matter of trial strategy; however, even trial strategy must be reasonable.  Here, there was no testimony to support the notion that the failure to call witnesses was reasonable trial strategy.  On point three, the Court failed to address why it was granting a hearing, but presumably did so for the same reasons as point two.

In Trozzie Lavelle Turner v. State, 2016 Ark 96, the appellate argued that trial counsel failed to argue that a speedy-trial violation should have resulted in a bar to prosecution.  The trial court failed to hold a hearing; instead, simply stating that the time to try the case was chargeable to the defense, not the State.  The Arkansas Supreme Court held that the record was insufficient to demonstrate that the argument had no merit and remanded for a hearing on the matter.

The Arkansas Supreme Court recently issued an opinion affirming the dismissal of a case alleging sexual indecency with a child in violation of A.C.A. 5-14-110(a)(4)(C).  The question of law revolved around the meaning of the phrase “another person.”  The statute provides that “a person commits sexual indecency with a child if . . . with the purpose to arouse or gratify his or her sexual desire or a sexual desire of another person, a person who is eighteen (18) years of age or older causes or coerces a minor to expose his or her sex organs to another person, and the actor is . . . the minor’s guardian.”

The question presented to the court was whether “another person” meant someone other than the guardian.  Essentially, to violate the statute, does the guardian have to cause the minor to expose his/her sex organs to someone else or can the exposure be to the guardian?  The Court answered that the statute required the exposure be to someone other than the guardian.

In State v. Billy Coble, 2016 Ark. 114, this had enormous consequences.  The charges were dismissed against Coble because he was the minor’s guardian and was the individual that allegedly caused the minor to expose her sex organs.  If Coble had caused his daughter to expose her sex organs to another person, then he would have been guilty; however, because the exposure was to himself, he was not.

Justice Danielson wrote a dissent and called the majority opinion “strained” and “nonsensical.”  Regardless, Coble would not have been able to be retried because of double jeopardy protections.