Barefield v. State

• Decision Date: 16 May 2019
• Docket Number: No. CR-18-325,CR-18-325
• Citation: 574 S.W.3d 142,2019 Ark. 149
• Parties: Tyler Joseph BAREFIELD, Appellant v. STATE of Arkansas, Appellee
• Court: Arkansas Supreme Court

2019 Ark. 149

574 S.W.3d 142

Tyler Joseph BAREFIELD, Appellant

v.STATE of Arkansas, Appellee

No. CR-18-325

Supreme Court of Arkansas.

Opinion Delivered: May 16, 2019

Rehearing Denied August 1, 2019

Jeff Rosenzweig, for appellant.

Leslie Rutledge, Att'y Gen., by: Jason Michael Johnson, Ass't Att'y Gen., for appellee.

ROBIN F. WYNNE, Associate Justice

Tyler Barefield appeals following his convictions by a Pope County Circuit Court jury on two counts of premeditated and deliberated capital murder in the deaths of Aaron Brock and Beau Dewitt. He was sentenced to life imprisonment without parole for each murder, plus a total of 180 months' imprisonment under Arkansas Code Annotated section 16-90-120 (Repl. 2016) for employing a firearm in the commission of the felonies. On appeal, he argues that the circuit court (1) erred in excluding evidence corroborating the defense that the killings were perpetrated by someone other than him and otherwise exculpating him on the charges of capital murder and (2) abused its discretion in allowing testimony concerning what a person could see with a scope when the testing conditions did not replicate the conditions at the time of the incident. We find no error and affirm.

I. Background

The bodies of Aaron Brock and Beau Dewitt were discovered inside a crushed vehicle at U-Pull It Auto Parts salvage yard in the Russellville area on September 20, 2016. The men had been missing since being dropped off late on the evening of Friday, September 16, to break into the salvage yard to steal vehicle parts. The last communication from Brock was a text message sent to his girlfriend, Laree Rowan, at 12:22 a.m. A person who lived near U-Pull-It called 911 and reported hearing four gunshots at approximately 12:40 a.m. Brock and Dewitt were reported missing on Saturday, September 17, and on Monday, September 19, Brock's family members searched the salvage yard in an attempt to locate the missing men. They found a cell phone and a head lamp belonging to the victims. They returned the following day, and this time, they observed blood dripping from a vehicle in a stack of crushed cars; they detected a foul odor as well. The bodies of the two men were inside the vehicle. The crushed vehicle was transported to the Arkansas State Crime Lab in Little Rock, where the top was removed and the bodies were extricated for an autopsy. During the autopsies, the medical examiner determined that each victim had died from a single gunshot wound

to the back of the torso. A .223-caliber projectile was found lodged in Brock's lumbar vertebra. With that information, the lead investigator returned to the salvage yard and found a spent .223 shell casing in the area where the bodies had been discovered.

The evidence implicating appellant in the crime included the discovery of an AR-15 rifle, .223 rounds, spent shell casings, and spare magazines at his home; security video footage showing appellant wearing camouflage at U-Pull-It on that Friday night at the time of the shootings and showing that he had his AR-15 with him; his statements to law enforcement denying being present on the night of the shootings; and the fact that, on Saturday morning before U-Pull-It opened, appellant crushed the vehicle with the bodies inside. The projectile recovered by the medical examiner could not be conclusively linked to appellant's rifle, but there was testimony that the shell casing recovered at the scene had been cycled through that rifle. In addition, Brock's cell phone was found in the vehicle with the bodies, but the battery was not located. There was testimony that the phone ceased all activity, including receiving information and communicating with the cell towers (suggesting removal of the battery), at 8:00 a.m. on Saturday when appellant was at the salvage yard crushing cars. The State's theory of the case was that appellant, an operator and part owner in the family business, was tired of repeated break-ins and decided to hunt down the perpetrators himself. Appellant's defense was that he had not shot the victims. Although he was seen on surveillance video carrying a rifle, he sought to present evidence showing why other people had motives to harm the victims and why he was armed that night—due to the victims' ties to violent white-supremacist groups. At trial, the defense contended that appellant was at the salvage yard that night because it was raining, and he wanted to see the condition of the gravel that had just been brought in to deal with an erosion problem. He relied on the absence of DNA or other physical evidence connecting him to the shootings and pointed to the video footage showing patterns of moving lights that he argued showed the presence of other persons.

II. Points on Appeal

A. Zinger Evidence

Appellant argues that the circuit court's rulings excluding certain evidence were a misapplication of the doctrine of Zinger v. State , 313 Ark. 70, 852 S.W.2d 320 (1993), which governs admission of evidence of alternative perpetrators. Further, he argues that the rulings also violated his constitutional right to present a defense as guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution and cognate state constitutional provisions of article 2, sections 8 and 10.

This court reviews the admission of evidence by the circuit court at trial using an abuse-of-discretion standard. Ellis v. State , 2012 Ark. 65, at 10, 386 S.W.3d 485, 490. The decision to admit or exclude evidence is within the sound discretion of the circuit court, and we will not reverse a court's decision regarding the admission of evidence absent a manifest abuse of discretion. Id. Appellant argues that the application of Zinger is a question of law to which a de novo standard of review should be applied, but we disagree. Consistent with our case law, we apply an abuse-of-discretion standard. See Harmon v. State , 2014 Ark. 391, 441 S.W.3d 891 (holding that the circuit court abused its discretion in granting the State's motion in limine to exclude the evidence that there was DNA from more than one individual on several pieces of evidence); Conte v. State , 2015 Ark. 220, 463 S.W.3d 686, (applying an abuse-of-discretion standard to Conte's Zinger argument).

In Zinger , supra , the appellants had been convicted of first-degree murder. At trial, they had attempted to introduce testimony regarding a similar crime that had occurred approximately thirty miles away, in Louisiana, for the purpose of convincing the jury that the person who committed that crime might also have committed the murder of which they had been accused. The circuit court refused to allow the evidence. On appeal, this court wrote:

To address this issue, we must consider under what circumstances evidence incriminating others is relevant to prove a defendant did not commit the crime charged....

Addressing this precise issue, the Supreme Court of North Carolina stated:

A defendant may introduce evidence tending to show that someone other than the defendant committed the crime charged, but such evidence is inadmissible unless it points directly to the guilt of the third party. Evidence which does no more than create an inference or conjecture as to another's guilt is inadmissible.

State v. Wilson, 322 N.C. 117, 367 S.E.2d 589 (1988). The Supreme Court of California has recognized that a defendant has the right to present evidence of third party culpability but stated:

[T]he rule does not require that any evidence, however remote, must be admitted to show a third party's possible culpability ... [E]vidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant's guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.

People v. Kaurish , 52 Cal. 3d 648, 276 Cal. Rptr. 788, 802 P.2d 278 (1990).

Although there are some similarities between the crimes committed in Louisiana and Arkansas, there was no evidence presented connecting the Louisiana suspect to the Holley murder. The Trial Court was not even given the name of the Louisiana suspect or whether he or she had any connection to Holley. There was neither direct nor circumstantial evidence connecting the Louisiana perpetrator to the Arkansas crime, other than a few similarities found in the two crime scenes, and we cannot conclude the Trial Court abused his discretion in refusing to allow the evidence to be admitted.

Zinger , 313 Ark. at 75–76, 852 S.W.2d at 323. Zinger has been applied many times since it was decided in 1993. In Harmon , 2014 Ark. 391, at 8, 441 S.W.3d 891, 895, this court recognized that the standard for admission of incriminating evidence against a third person, as set forth in Zinger , is merely an application of the Arkansas Rules of Evidence to a specific type of evidence. Pursuant to those rules, relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Ark. R. Evid. 401 (2018). However, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Ark. R. Evid. 403.

Here, appellant argues that the circuit court erred in excluding evidence corroborating the defense that the killings were perpetrated by someone other than him and otherwise exculpating him on the charge of capital murder, i.e., showing that he was justified in being armed at the salvage yard for reasons other than a premeditated killing.

First, appellant argues that the circuit court erred in excluding photographs of footprints at the crime scene. After lead investigator Erick Riggs of the Pope County Sheriff's Department testified on cross-examination that there were various footprints at the scene, the State objected when the...