Lard v. State

• Decision Date: 13 February 2014
• Docket Number: No. CR–13–173.,CR–13–173.
• Citation: 431 S.W.3d 249,2014 Ark. 1
• Parties: Jerry LARD, Appellant v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

2014 Ark. 1

431 S.W.3d 249

Jerry LARD, Appellant

v.STATE of Arkansas, Appellee.

No. CR–13–173.

Supreme Court of Arkansas.

Jan. 9, 2014.

Rehearing Denied Feb. 13, 2014.

Prior Version Recognized as Unconstitutional

West's A.C.A. § 5–4–617 (Supp.2011)Janice Vaughn, Arkansas Public Defender Commission, for appellant.

Dustin McDaniel, Att'y Gen., by: LeaAnn J. Adams and Rebecca Kane, Ass't Att'ys Gen., for appellee.

COURTNEY HUDSON GOODSON, Justice.

A jury in Greene County Circuit Court found appellant Jerry Lard guilty of capital murder, attempted capital murder, and possession of a controlled substance (methamphetamine), for which he received consecutive sentences of death, life, and ten years in prison, respectively. For reversal, Lard contends that the circuit court erred (1) by allowing the State to present evidence of bad acts and bad character; (2) by permitting repeated showings of the dash-camera videos depicting the crimes as they took place; (3) by failing to sequester victim-impact witnesses during the guilt phase of trial in violation of Rule 615 of the Arkansas Rules of Evidence; (4) by allowing the State to make improper remarks during closing arguments in both phases of trial; and (5) in denying Lard's motion to prohibit the State from seeking or imposing the death penalty, as well as permitting death qualification of the jury. Jurisdiction is properly in this court pursuant to Arkansas Supreme Court Rule 1–2(a)(2) (2013). We find no reversible error and affirm Lard's convictions and sentences.

I. Factual Background

The prosecuting attorney in Poinsett County charged Lard by felony information with the above-referenced offenses ¹ following a shooting that occurred in Trumann, Arkansas, during a traffic stop.² The facts underlying the charges are not in question, as the events in large part were captured by the dash cameras and audio equipment of the two police officers involved in the incident. This evidence reveals that, late in the evening on April 12, 2011, Officer Jonathan Schmidt of the Trumann Police Department initiated a stop of a vehicle driven by Brian Keith Elumbaugh. April Swanner, Elumbaugh's girlfriend, owned the vehicle and was sitting next to him in the front passenger seat. Another occupant of the vehicle, Nikki Pierce, sat in the back seat behind Elumbaugh. Lard also sat in the back but behind Swanner. Officer Schmidt ran a check on Elumbaugh's driver's license and learned that his license had been suspended and that there was an outstanding warrant for his arrest. Officer Schmidt asked Elumbaugh to exit the vehicle, and he placed Elumbaugh under arrest based on the warrant. At this point, Sergeant Corey Overstreet of the Trumann Police Department arrived in his cruiser to provide assistance during the stop. While Elumbaugh stood to the side in handcuffs, Officer Schmidt asked Pierce to exit the vehicle because he believed that she, too, might have had a warrant for her arrest. Officer Schmidt then leaned into the back door where Pierce had been sitting and asked Lard for his name and date of birth. Upon learning Lard's information, Officer Schmidt relayed it to the dispatcher, who advised that arrest warrants had been issued for Lard. Officer Schmidt then walked around the back of Swanner's vehicle to the door where Lard was sitting. When Officer Schmidt opened the door, Lard stuck out his arm and shot Officer Schmidt in the chin with a .25–caliber pistol. Schmidt ran away from the car, and Lard quickly exited the vehicle, turned, and began firing at Sergeant Overstreet. Lard continued shooting as the officers scrambled for cover. Eventually, the officers met in front of Officer Schmidt's cruiser. Officer Schmidt dropped his .40–caliber Smith and Wesson Clock handgun, which he picked up but dropped again. Lard followed as the officers moved toward the rear of Officer Schmidt's vehicle on the passenger side. Sergeant Overstreet managed to return to his cruiser, but Officer Schmidt, who was wounded, remained beside his patrol car. As Lard approached Officer Schmidt, Lard exclaimed, “What you got now, what you got, bitch? Huh? What you got, bitch?” More gunshots were fired, and Lard again shouted, “What you got, bitch?” At this juncture, Officer Schmidt pleaded, “I'm down. I'm down. Please don't shoot me again.” Additional gunshots rang out, and Lard again asked, “What the fuck you got?” The final words heard on the recording were Officer Schmidt's, when he begged, “Please don't shoot me again.”

Moments later, Sergeant Overstreet shot Lard in the back as he attempted to leave the area. Where Lard fell, officers recovered Lard's .25–caliber pistol and Officer Schmidt's .40–caliber handgun. Neither weapon contained any remaining ammunition. Officers also discovered that Lard had .8154 grams of methamphetamine in his pocket. Subsequent testing revealed that Lard had a low level of that substance in his system near the time of the incident.

Fortunately, Sergeant Overstreet escaped without injury. However, emergency-room personnel at St. Bernard's Medical Center in Jonesboro pronounced Officer Schmidt dead approximately one hour after the shooting. According to the testimony, Schmidt sustained four gunshot wounds. The most lethal one, fired at a range between several inches and two feet, entered Schmidt's right cheek adjacent to his nose, and the bullet passed through the right upper jawbone, fracturing the jawbone and teeth in that area. This bullet then traveled through Schmidt's tongue and lodged in his neck, but not before it completely transected the left common carotid artery. The bullet removed from Schmidt's neck was consistent with having been fired from a .40–caliber weapon. The gunshot that struck the left side of Schmidt's chin passed the left jawbone and carotid artery and exited the back of the neck on the left side. Schmidt also received a gunshot to the back of his right wrist. The bullet associated with this wound came to rest in the soft tissue at the base of his right thumb, and it matched forensically to Lard's pistol. The fourth gunshot caused a nonpenetrating wound to the right side of Schmidt's chest, as a result of a bullet striking his protective vest. The bullet recovered from Schmidt's vest had been fired from Lard's pistol.

In his testimony at trial, Elumbaugh stated that, before he exited the vehicle, he heard Lard say, “Looks like tonight's gonna be the night.” While Lard was shouting and pursuing the officers in front of Officer Schmidt's vehicle, Elumbaugh saw Lard bend down and pick up something from the ground. Swanner testified that she also heard Lard say “tonight's the night” when Officer Schmidt first approached the car. She stated that she overheard the dispatcher inform Officer Schmidt about the warrants for Lard's arrest, and she testified that Lard said “here we go” as Schmidt approached Lard's door. Swanner further testified that she also saw Lard retrieve something from the ground as he stalked the officers around Schmidt's vehicle. She testified that she heard Lard say “die, motherfucker, die,” as Officer Schmidt was begging for his life.

Lard did not deny that he committed the offenses. As his defense, Lard asserted that he lacked the capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law as a result of mental disease or defect. As support for this defense, Lard presented expert testimony that he had brain damage, possibly caused by head injuries he received as a child or induced by chronic methamphetamine abuse. Lard also introduced into evidence the results of his PET scan showing mildly decreased activity bilaterally in his mesial lobes. In rebuttal, the State offered the testimony of experts who disputed that Lard suffered from brain damage. As opposed to Lard's witnesses, the State's experts concluded that Lard's behavior was consistent with antisocial personality disorder, not a mental disease or defect.³

Upon hearing the evidence, the jury found Lard guilty of the capital murder of Officer Schmidt, attempted capital murder of Sergeant Overstreet, and possession of methamphetamine. Following the sentencing phase of trial, the circuit court sentenced Lard as previously stated in this opinion. Lard now appeals his convictions and sentences.

II. Prior Bad Acts and Character Evidence

As his first point on appeal, Lard contends that the circuit court erred in allowing testimony that disclosed previous bad acts and evidence that reflected poorly on his character. More specifically, he claims error in the admission of testimony revealing that there were warrants for his arrest at the time of the shooting; that he had made threats to harm police officers; that he lacked remorse; that he had prior convictions and arrests; that he had violent propensities; that he had manufactured methamphetamine; and that he had a “Hell Bound” tattoo on his back. The State asserts in response that the circuit court did not abuse its discretion because the evidence possessed independent relevance and was not unfairly prejudicial.

The foundation for Lard's arguments is Rule 404(b) of the Arkansas Rules of Evidence, which provides as follows:

Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Ark. R. Evid. 404(b) (2013). The first sentence of 404(b) sets out the general rule excluding evidence of a defendant's prior bad acts, while the second sentence provides an exemplary, but not exhaustive, list of exceptions to that rule. Hamm v. State, 365 Ark. 647, 232 S.W.3d 463 (2006). Evidence is not admissible under Rule 404(b) simply to show a prior bad act. Laswell v. State, 2012 Ark. 201, 404 S.W.3d...