Armstrong v. State

• Decision Date: 13 April 2006
• Docket Number: No. CR 05-1028.,CR 05-1028.
• Citation: 233 S.W.3d 627
• Parties: Ralph ARMSTRONG, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

233 S.W.3d 627

Ralph ARMSTRONG, Appellant, v. STATE of Arkansas, Appellee.

No. CR 05-1028.

Supreme Court of Arkansas.

April 13, 2006.

Terrence Cain, Little Rock, AR, for appellant.

Mike Beebe, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., Little Rock, AR, for appellee.

ROBERT L. BROWN, Justice.

Appellant Ralph Armstrong appeals from his two convictions for capital murder and his sentence to life imprisonment without parole. He asserts six points on appeal. We hold that none of the six points raised has merit, and we affirm the judgment of conviction.

Appellant does not challenge the sufficiency of the evidence. Accordingly, we will give only a brief recitation of the facts. See, e.g., Garcia v. State, 363 Ark. 319, 214 S.W.3d 260 (2005); Rollins v. State, 362 Ark. 279, 208 S.W.3d 215 (2005). On February 14, 2004, the body of Armstrong's estranged wife, Dashunda Armstrong, was found burning in her van on McDonald Road in Pulaski County.¹ She was approximately twenty-weeks pregnant at the time and had been shot at least once prior to burning in the fire.

Pulaski County deputy sheriffs investigated the deaths and discovered that on the previous evening, Dashunda Armstrong had a hair appointment with her sister until around 1:00 a.m. According to her sister, the victim planned to meet Armstrong after she left the hair salon. When questioned by the investigators regarding his wife, Armstrong responded that she never arrived at his house as they had planned. Further investigation of Armstrong revealed that he had made several cellular telephone calls to a former girlfriend, Kim Waller, on the night of his wife's death. The calls made by Armstrong that evening were made through a cellular tower located near where Dashunda Armstrong's van was found.

Ms. Waller told police that on the evening in question, Armstrong called her sometime after midnight to pick him up not where her sister lived, but the "opposite way . . . down McDonald Road." While she was driving to the area, Armstrong told Ms. Waller that he set "[his wife's] van on fire." When she arrived in the area, Ms. Waller saw the burning van and returned home. Her brother-in-law, Ronnie Neal, who lived in the vicinity, took Armstrong home after Armstrong appeared at his house, requesting a ride home and smelling of smoke. The next morning, Armstrong told Ms. Waller that he did not have a choice "to do it" because his wife was trying to hurt Ms. Waller and her daughter. A later search of Armstrong's room at his father's home revealed two laptop computers, which included email information from a woman named Adrian Nimmer regarding how to change one's identity. In addition, several letters from various creditors were found. The investigation further revealed an ongoing and contentious divorce between Armstrong and his wife.

The State waived the death penalty, and Armstrong was tried on two counts of capital murder, one for the death of Dashunda Armstrong, and one for the death of the twenty-week-old fetus. He was convicted and sentenced as already set forth in this opinion.

I. Dual Representation

Armstrong first contends that the Model Rules of Professional Conduct prohibited prosecutors from talking to Adrian Nimmer because she was represented by the same attorney as he was. Armstrong claims that the prosecutors had actual knowledge of this and on receiving that notice had an affirmative duty to terminate all communication with her regarding the Armstrong investigation until her counsel informed them that he no longer represented her. Armstrong asserts that it is of no moment that Ms. Nimmer told prosecutors that she was no longer represented by the same counsel because, according to Armstrong, Rule 4.2 of the Model Rules required the prosecutors to confirm that with the attorney, rather than taking the client's word for it. He further maintains that a referral of the prosecutors to the Supreme Court Committee on Professional Conduct is inadequate to deter such conduct and that the better deterrent would be to exclude the testimony of the witness who was the subject of the Rule 4.2 violation.

A review of the record reveals that Armstrong moved the circuit court to exclude Ms. Nimmer's testimony and asserted that the prosecutors knew she was represented by the same counsel as Armstrong, but talked with her nevertheless. During the discussion before the circuit court on the motion, which the circuit court ultimately denied, the prosecutors represented to the circuit court that no statement was taken from Ms. Nimmer while she was represented by counsel for Armstrong. However, upon her subsequent initiation of contact with prosecutors, she was interviewed. Ms. Nimmer then later wrote a letter to Mr. R.S. McCullough, her former counsel and Armstrong's counsel, stating that she considered his representation terminated when she spoke with the prosecutors.

Ms. Nimmer, while not charged in the murders, was in the midst of the investigation between the State and Armstrong after police investigators discovered that she purchased information regarding how to change one's identity for Armstrong. Moreover, the prosecutors knew that she had been represented by the same counsel. But even if this court were to conclude that there was a violation of Model Rule of Professional Conduct 4.2, which we do not, Armstrong has adduced no authority which would have prohibited the prosecutors from using Ms. Nimmer's testimony at trial as a result of that violation. This court does not consider arguments that are unsupported by convincing argument or sufficient citation to legal authority. See, e.g., McGahey v. State, 362 Ark. 513, 210 S.W.3d 49 (2005). Because Armstrong does not cite the court to any authority for that proposition, his argument should not be considered.²

Furthermore, the Model Rules themselves provide that the "[f]ailure to comply with an obligation or prohibition imposed by a Rule is a basis for invoking the disciplinary process." Scope of the Model Rules of Professional Conduct (2004). Thus, were there a violation of Rule 4.2 by the prosecutors in the matter before us, it appears that the appropriate remedy would be disciplinary action and not the exclusion of the statement at issue from the trial. We cannot say that the circuit court erred in admitting Ms. Nimmer's testimony.

II. Batson

Armstrong next claims that the circuit court erroneously permitted the prosecutors to use their first peremptory challenge to strike Theodore Simpkins, a black male, and their second to strike Delois Hines, a black female.

This court has outlined its three-step procedure for making challenges under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986):

First, the strike's opponent must present facts to raise an inference of purposeful discrimination; that is, the opponent must present a prima facie case of racial discrimination. Second, once the strike's opponent has made a prima facie case, the burden shifts to the proponent of the strike to present a race-neutral explanation for the strike. If a race-neutral explanation is given, the inquiry proceeds to the third step, wherein the trial court must decide whether the strike's opponent has proven purposeful discrimination. Here, the strike's opponent must persuade the trial court that the expressed motive of the striking party is not genuine but, rather, is the product of discriminatory intent.

Hinkston v. State, 340 Ark. 530, 538-39, 10 S.W.3d 906, 911-12 (2000) (internal citations omitted) (citing MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998)). With respect to the third stage of the process, this court has held that it is the responsibility of the party opposing the strike to move the matter forward to show purposeful discrimination at that stage to meet the burden of persuasion. See Owens v. State, 363 Ark. 413, 214 S.W.3d 849 (2005). If the party opposing the strike does not present more evidence after the race-neutral explanation is given by the prosecutor, no additional inquiry by the circuit court is required. See id.

In reviewing a Batson challenge, this court has held that it will reverse a circuit court's ruling on a Batson challenge only when its findings are clearly against the preponderance of the evidence. See Stenhouse v. State, 362 Ark. 480, 209 S.W.3d 352 (2005). It further accords some measure of deference to the circuit court, because it is in a superior position to make determinations of juror credibility. See id.

a. Mr. Simpkins

During voir dire, Mr. Simpkins stated that he attended school with Armstrong. Later, the prosecution used one of its peremptory challenges to strike Mr. Simpkins. At that time, Armstrong objected, stating that the prosecution was using one of its strikes against a prospective juror solely because he was black. The prosecution then responded that when asked if he knew any of the people involved, Mr. Simpkins stated that he went to school with Armstrong. The prosecution further pointed to the fact that it had not struck a black female and argued that because of that, Armstrong had failed to meet his burden of proof. The circuit court denied Armstrong's Batson challenge. Armstrong's counsel made no further argument and offered no additional proof.

Even assuming that Armstrong made a prima facie case to raise an inference of purposeful discrimination, the prosecution clearly provided a race-neutral reason for the strike, which was that Mr. Simpkins knew Armstrong and had previously attended school with him. After the prosecution explained its reason for the strike, the circuit court denied Armstrong's Batson challenge. Armstrong's counsel failed to pursue the matter further. We affirm the circuit court on this point.

b. Ms. Hines

Ms. Hines remarked during voir dire that she was due to have surgery on Thursday of that week and that she would have to call to determine whether it could be rescheduled. She further stated that while it would...