Anderson v. State, CR 06-29.
| Decision Date | 02 November 2006 |
| Docket Number | No. CR 06-29.,CR 06-29. |
| Citation | 242 S.W.3d 229,367 Ark. 536 |
| Parties | Justin ANDERSON, Appellant, v. STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
Janice Vaughn, Arkansas Public. Defendell Commission, Little Rock, AR, for appellant.
Mike Beebe, Att'y Gen., by: David R. Raupp, Sr. Ass't Att'y Gen, Little Rock, AR, for appellee.
Justin Anderson appeals his sentence of death by lethal injection, Be was convicted of capital murder on January 31, 2002, and sentenced to death. He appealed his conviction and sentence to this court. The conviction was affirmed; however, the sentence of death was reversed and remanded. See Anderson v. State, 357 Ark. 180, 163 S.W.3d 333 (2004). Anderson now appeals his sentence of death entered on remand, alleging that the circuit court erred in allowing the deliberating jury to replay the tape recording of his recorded statement in the jury room outside the presence of the court, counsel, and Anderson. He also alleges error in the circuit court's denial of his motion to exclude victim-impact evidence. We find no error and affirm.
The sentencing hearing upon remand was moved from Lafayette County, to Miller County pursuant to a motion to change venue. All of the events in this case took place in Lewisville, Lafayette County. According to Anderson's statement, he was depressed and despondent and decided that he would steal a firearm, kill someone, and then force police to kill him.
On October 2, 2000, Anderson broke the back window of a home in Lewisville and entered it in search of firearms. He located and removed two pistols. He then searched for people to kill but first found the opportunity on October 6, 2000, when he entered the cab of Roger Solvey's tractor-trailer at a convenience store. According to Anderson, he found Solvey in the sleeper and fired multiple shots. Solvey was wounded but recovered. On October 12, 2000, Anderson was walking in Lewisville when he saw eighty-five-year-old Clara Creech working in her garden. Anderson told police that he did not know her, that he just shot her. Anderson was picked up as a suspect that same day and after several hours of questioning, and meeting with his brother, he confessed.
Anderson argues that the circuit court erred in sending his recorded statement to the deliberating jury. The audiotape of Anderson's statement had been admitted into evidence and was played for the jury during the trial. He alleges that any playing of the tape by the jury during deliberations violated Ark.Code Ann. § 16-89-125(e)(1987), and his right to be present with counsel. The record does not show whether the tape was ever played by the jury. The tape was not directly requested by the jury. During deliberations, the jury requested the October 23, 1986, psychological report on Anderson's mother, Ruby Eason. Consistent with the circuit court's practice, all exhibits including the tape and a tape player were sent into the jury.
Arkansas Code Annotated Section 16-89-125 discusses jury deliberation and is the current codification of statutes concerning conduct of a jury trial that were enacted in the Criminal Code of 1869.1 Arkansas Code Annotated Section 16-89-125(d)(3) (1987) and Section 16-89-125(e) are relevant to our discussion. Arkansas Code Annotated Section 16-89-125(d)(3) was originally codified as Section 247 of the Criminal Code of 1869.2 This section provides that, "[u]pon retiring for deliberation, the jury may take with them all papers which have been received as evidence in the cause."
What is at issue is a taped statement that was played at trial and admitted into evidence. It was one of the exhibits sent to the jury when it requested the Eason document. What the jury asked for was a paper exhibit. Under section 16-89-125(d)(3), the Eason document, being a paper document, was certainly properly made available to the jury by the circuit court. The tape was not a paper document. Although the statute uses the term "papers," the cases interpreting section 16-89-125(d)(3) do not limit exhibits that may be given to the jury during deliberations to papers. In Goff v. State, 341 Ark. 567, 19 S.W.3d 579 (2000), we held that it was within the circuit court's discretion under Ark.Code Ann. § 16-89-125(d)(3), to allow all exhibits, including a hammer, to be given to the jury during deliberations. Arkansas Code Annotated Section 16-89-125(d)(3) does not prohibit the jury from receiving and considering all exhibits, including the tape of Anderson's statement during deliberations.
However, Anderson argues that allowing the jury access to the tape during deliberations was a violation of Ark.Code Ann. § 16-89-125(e). This was enacted as Section 248 of the Criminal Code of 1869 and is identical to Ark.Code Ann. § 16-89-125(e), which provides:
After the jury retires for deliberation, if there is a disagreement between them as to any part of the evidence or if they have a desire to be informed on a point of law, they must require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of or after notice to the counsel of the parties.
Anderson alleges that under the analysis in Davlin v. State, 313 Ark. 218, 853 S.W.2d 882 (1993), Ark.Code Ann. § 16-89-125(e) prohibits sending the tape into the jury deliberations. In Davlin, the jury asked during deliberations to view the videotaped statement of the victim. The facts of Davlin distinguish it from the present case. In discussing the statute now codified as Ark.Code Ann. § 16-89-125(e), this court said:
The design of the lawmakers in the enactment of this statute was to protect defendants on trial as well as the State, after causes have been finally submitted to the jury for its deliberation and verdict, against any further steps being taken in the case in regard to the evidence or the law unless in open court and after notice to the counsel of the respective parties.
Aydelotte v. State, 170 Ark. 1192, 177 Ark. 595, 603-04, 281 S.W. 369, 372 (1926); see also Golf v. State, 261 Ark. 885, 552 S.W.2d 236 (1977); Boone v. State, 230 Ark. 821, 327 S.W.2d 87 (1959). The court has more recently stated that the purpose of Ark Code Ann. § 16-89-125(e) is to protect against misinformation communicated to the jury. Sanders v. State, 317 Ark. 328, 878 S.W.2d 391 (1994). Thus, the purpose of section 16-89-125(e) is to protect against any further steps being taken with respect to "evidence unless done in open court with counsel present. No further step was taken with respect to the evidence against Anderson in this case.
The jury was given the tape they had already heard to replay if they chose to do so. In Davlin, the videotape had portions that were not played at trial:
The record states that the videotape would be replayed in the jury room just as it was at trial, with certain prejudicial portions deleted. However, the record is silent with respect to what actually occurred in the jury room and therefore does not assure us there was a lack of prejudice in the replaying of the tape.
Davlin, 313 Ark. at 221, 853 S.W.2d at 884. Thus, while the proposal was to replay the tape just as it had been played at trial, the record did not show that it was so replayed.3 In other words, if excluded portions of the videotape were played to the jury, a further step was taken in respect to the evidence in violation of the statute. Strict compliance with Ark.Code Ann. § 16-89-125(e) is required. McKinney v. State, 303 Ark. 257, 797 S.W.2d 415 (1990); Rollie v. Stcite, 236 Ark. 853, 370 S.W.2d 188 (1963). Where there is a violation, prejudice is presumed, and it is up to the State to disprove that prejudice. Goff v. State, 329 Ark. 513, 953 S.W.2d 38 (1997); Williams v. State, 264 Ark. 77, 568 S.W.2d 30 (1978). Where it cannot be shown what happened, prejudice is presumed. Tarry v. State, 289 Ark. 193, 710 S.W.2d 202 (1986).
In Davlin, giving the requested videotape to the jury created the possibility that evidence that was never introduced at trial might be introduced in the jury room. In that case, prejudice had to be presumed because it was impossible to glean, from the record whether the prejudicial portions of the tape were deleted as they had been at trial. In the present case, there was no such danger.4 We hold that there was no violation of Ark.Code Ann. § 16-89-125(e) in this case because the jury received an admitted exhibit where there was no danger of additional evidence being introduced by giving the exhibit to the jury during deliberations.
Anderson also alleges that if the jury replayed the tape, it constituted a substantial step, or in other words a critical stage in the criminal proceeding against him requiring that he be present with counsel. It is a basic principle of both our state's and our nation's constitutional law that a criminal defendant has the right to be present in person and by counsel at any critical stage in his or her case. Smith v. State, 343 Ark. 552, 39 S.W.3d 739 (2001); Davlin, supra. A criminal defendant has a Sixth Amendment right to an attorney at every critical stage of the proceedings. Hammett v. Texas, 448 U.S. 725, 100 S.Ct. 2905, 65 L.Ed.2d 1086 (1980). A criminal defendant has a due process right to be present at critical stages of the proceeding. Kentucky v. Stincer, 482 U.S. 730, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987). The complete denial of counsel during a critical stage of a judicial proceeding mandates a presumption of prejudice because the adversary process itself has been rendered presumptively unreliable. Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000).
A critical stage in a criminal proceeding is every stage where substantial rights of the criminal defendant may be affected. Mempa v. Rhay, 389...
To continue reading
Request your trial
-
Flanagan v. State
... ... We recently addressed this issue in Anderson v. State, 367 Ark. 536, 242 S.W.3d 229 (2006), where the appellant argued that the circuit court erred in sending his recorded statement to the ... ...
- Anderson v. Kelley
-
Jackson v. State
... ... for deliberation, the jury may take with them all papers which have been received as evidence in the cause." (Emphasis added.) In Anderson v. State, 367 Ark. 536, 242 S.W.3d 229 (2006), this court held that, where a videotaped statement had been introduced into evidence, it was not ... ...
- Ward v. State