Gay v. State, CR–15–948

• Decision Date: 08 December 2016
• Docket Number: No. CR–15–948,CR–15–948
• Parties: Randy William GAY, Appellant v. STATE of Arkansas, Appellee
• Court: Arkansas Supreme Court

2016 Ark. 433
506 S.W.3d 851

Randy William GAY, Appellant
v.
STATE of Arkansas, Appellee

No. CR–15–948

Supreme Court of Arkansas.

Opinion Delivered December 8, 2016

Montgomery, Adams & Wyatt, PLC, by: Dale E. Adams, Little Rock, AR, for appellant.

Leslie Rutledge, Att'y Gen., Little Rock, AR, by: Evelyn D. Gomez, Ass't Att'y Gen., and Adam Jackson, Ass't Att'y Gen., for appellee.

KAREN R. BAKER, Associate Justice

On March 20, 2015, appellant, Randy William Gay, was convicted by a Garland County Circuit Court jury of one count of capital felony murder in the 2011 death of Connie Snow and sentenced to death. Gay appealed and presents seven issues on appeal: (1) the circuit court violated Gay's right to a fair and impartial trial by allowing Gay's entire "pen pack" to be submitted to the jury; (2) the circuit court erred by violating Gay's rights to due process by refusing to allow defense counsel to question potential jurors in depth regarding their views on the death penalty and mitigation; (3) the circuit court's inconsistent approach to rehabilitative questions to veniremen resulted in the improper removal of jurors for cause that denied Gay the right to a fair and impartial jury; (4) the circuit court erred in granting the State's motion for a mental-health evaluation of Gay over Gay's objection; (5) the circuit court erred by refusing to allow jury instructions AMI Crim. 2d 202 and AMI Crim. 2d 206, which were proffered by the defense; (6) the circuit court erred in denying the defense mitigator of "lingering doubt" in the penalty phase; and (7) the circuit court erred for refusing to allow Gay to introduce as a mitigating circumstance that Gay had a calming influence on others while in custody.

I. Facts

Gay does not challenge the sufficiency of the evidence. Therefore, only a brief recitation of the facts is necessary. James Westlake testified he and his family operated a timber business in Garland County in 2011. James testified that he paid Gay "a few hundred dollars each week" to "keep an eye" on their equipment overnight. On May 10, 2011, James, Jim Westlake, and Rickey Stewart were attempting to repair machinery at their logging business in a wooded area of Garland County. Around 5 p.m. that day, Gay arrived in a pickup truck, and Snow was in the passenger seat. James testified that Gay exited the truck and ordered Snow out of the truck; Snow did not comply, and Gay went back to his truck and retrieved a shot gun and ordered Snow out of the truck. As Snow was attempting to exit the truck; Gay shot Snow in the right side of her face. The testimony demonstrates that James and Stewart both witnessed the

506 S.W.3d 855

shooting. James testified that Gay loaded Snow's body into the back of his truck and exited the property. Snow's body was recovered four days later in a shallow creek, and Gay was charged with capital murder. In 2013, Gay's first trial ended with a mistrial after the circuit court discovered that members of the jury had violated instructions by conducting independent research. Prior to the first trial, on a motion from the State and over an objection from Gay, the circuit court ordered a mental evaluation of Gay. The State retried Gay in March 2015 and on March 20, 2015, the jury convicted Gay, sentenced him to death, and this appeal followed.

II. Points on Appeal

A. Gay's "Pen Pack"

For his first point on appeal, Gay asserts the circuit court violated Gay's right to a fair and impartial trial by allowing Gay's entire "pen pack" to be submitted to the jury. During the sentencing phase, Gay introduced the "pen pack" that "spanned all periods of time that [Gay] had been incarcerated in the Arkansas Department of Correction. It consisted of approximately 300 pages and contained a large amount of information that was highly prejudicial to [Gay]." Gay contends that the "pen pack" should not have been introduced and considered by the jury and urges this court to reverse and remand this matter for a new trial.

At trial, during the sentencing phase, Gay called Shelly Hamilton, the classification administrator at the Department of Correction. Hamilton testified regarding Gay's two prior convictions for second-degree murder on two separate occasions, a felony conviction for felon in possession of a firearm, Gay's background, alleged parole violations, furloughs, and Minnesota Multi-phasic Personality Inventory test results. However, Gay elicited the testimony and introduced the "pen pack." Further, Gay did not object to the introduction of the "pen pack."

Here, "before considering the merits of this point on appeal, we must first determine whether the issue was properly preserved for appellate review .... It is well settled that arguments not raised at trial will not be addressed for the first time on appeal." Ray v. State , 2009 Ark. 521, at 3–4, 357 S.W.3d 872, 876 (internal citations omitted). Further, "Arkansas does not recognize plain error, i.e., an error not brought to the attention of the trial court by objection, but nonetheless affecting substantial rights of the defendant." Green v. State , 362 Ark. 459, 468, 209 S.W.3d 339, 344 (2005) (internal citations omitted). "It is well settled that a contemporaneous objection is required to preserve an issue for appeal, but this court has recognized four exceptions to the rule, known as the Wicks [v. State , 270 Ark. 781, 606 S.W.2d 366 (1980) ] exceptions." Springs v. State , 368 Ark. 256, 260, 244 S.W.3d 683, 686 (2006) ; Anderson v. State , 353 Ark. 384, 108 S.W.3d 592 (2003). These exceptions occur when (1) a trial court, in a death-penalty case, fails to bring to the jury's attention a matter essential to its consideration of the death penalty itself; (2) a trial court errs at a time when defense counsel has no knowledge of the error and thus no opportunity to object; (3) a trial court should intervene on its own motion to correct a serious error; and (4) the admission or exclusion of evidence affects a defendant's substantial rights. Springs , 368 Ark. at 261, 244 S.W.3d at 686.

Here, Gay did not preserve the issue for review and has not asserted that the error falls within one of the exceptions in Wicks . Finally, we have repeatedly stated that a defendant cannot agree with a circuit court's ruling and then attack the ruling on

506 S.W.3d 856

appeal. See, e.g. , Camargo v. State , 346 Ark. 118, 55 S.W.3d 255 (2001) ; Roberts v. State , 352 Ark. 489, 504–05, 102 S.W.3d 482, 493 (2003). Based on the record before us, we do not find error with regard to the introduction of the pen pack and affirm the circuit court.

B. Questioning Potential Jurors Regarding the Death Penalty and Mitigation

For his second point on appeal, Gay contends that the circuit court violated Gay's due- process rights by refusing to allow Gay's counsel to question potential jurors in depth regarding their views on the death penalty and mitigation. Gay asserts that the circuit court restricted voir dire examination of potential jurors in two major areas: (1) the potential jurors' views on the death penalty and (2) mitigation. The State responds that the circuit court acted with sound discretion, and the circuit court repeatedly warned defense counsel that he was "fact qualifying" the potential jurors.

At issue is the voir dire examination of potential jurors. In Isom v. State , we explained our standard:

The extent and scope of voir dire examination is within the sound discretion of the circuit judge, and the latitude of that discretion is wide. See Henry v. State , 309 Ark. 1, 828 S.W.2d 346 (1992). The judge's restriction of that examination will not be reversed on appeal unless that discretion is clearly abused. Id . Abuse of discretion occurs when the circuit judge acts arbitrarily or groundlessly. See Walker v. State , 304 Ark. 393, 803 S.W.2d 502 (1991).

Arkansas Rules of Criminal Procedure provide the procedure for the conduct of proper voir dire in a criminal trial:

(a) Voir dire examination shall be conducted for the purpose of discovering bases for challenge for cause and for the purpose of gaining knowledge to enable the parties to intelligently exercise peremptory challenges. The judge shall initiate the voir dire examination by:

(i) identifying the parties; and

(ii) identifying the respective counsel; and

(iii) revealing the names of those witnesses whose names have been made known to the court by the parties; and

(iv) briefly outlining the nature of the case.

(b) The judge shall then put to the prospective jurors any question which he thinks necessary touching their qualifications to serve as jurors in the cause on trial. The judge shall also permit such additional questions by the defendant or his attorney and the prosecuting attorney as the judge deems reasonable and proper.

Ark. R.Crim. P. 32.2(a) and (b).

The fact that the Rules allow the circuit judge to permit such additional questioning as he or she deems proper underscores the discretion vested in the circuit judge.

Isom , 356 Ark. 156, 171–72, 148 S.W.3d 257, 267–68 (2004).

Here, Gay contends that the circuit court erred by not allowing voir dire for further questions into the veniremen's beliefs concerning the death penalty and mitigation and whether lack of premeditation was mitigation to an intentional murder. Gay further contends that the State was allowed to ask jurors questions regarding...