Birts v. State
| Decision Date | 27 September 2012 |
| Docket Number | No. CR 12-74,CR 12-74 |
| Citation | 2012 Ark. 348 |
| Parties | TERRY DEAN BIRTS APPELLANT v. STATE OF ARKANSAS APPELLEE |
| Court | Arkansas Supreme Court |
AFFIRMED.
Appellant, Terry Dean Birts, appeals the judgment of the Pulaski County Circuit Court convicting him of one count each of second-degree murder, first-degree murder, and capital murder. Appellant was tried by jury and sentenced by the court; he received enhanced sentences due to his use of a firearm and his four or more prior felony convictions. Because Appellant was sentenced to an aggregate sentence of life imprisonment without parole, jurisdiction of this appeal is properly in this court pursuant to Ark. Sup. Ct. R. 1-2(a)(2) (2012). As his sole point for reversal, Appellant contends the circuit court abused its discretion in excluding fingerprint and trace-DNA evidence of unknown persons found at the crime scene and at the residence of one of the victims. We find no abuse of discretion and affirm the judgment and commitment order.
Appellant does not challenge the sufficiency of the evidence presented against him at trial, but a recitation of some of that evidence is necessary to an understanding of the solepoint on appeal. Appellant was charged by felony information with the capital murder of three persons, Tammy Lawrence, Ahki Hughes, and Barry Murphy. At trial, the jury heard evidence that Lawrence and Hughes were found on May 9, 2009, inside a black sport-utility vehicle alongside Interstate 40. Murphy was found mortally wounded later that same day near Interstate 440. According to the medical examiner, all three victims died of gunshot wounds.
The jury heard testimony from Tiffany Grimes, Appellant's wife, that Appellant admitted to her that he had killed all three persons. According to Grimes, she was not with Appellant when he committed the murders but saw him shortly after they had occurred, and he gave her the following explanation of events. He told her that he, Lawrence, and Hughes had been at Lawrence's residence "snorting powder and drinking," when they left in Lawrence's black sport-utility vehicle. He told Grimes that he was in the backseat and that he shot Hughes and then Lawrence. He also told Grimes that he called his cousin, Kevin O'Donald, to come pick him up, and that O'Donald brought the third victim, Murphy, with him to the scene. Appellant told Grimes that Murphy kept saying he would not tell anyone anything and that he did not see anything. Appellant then drove Murphy away, shot him in the shoulder, and threw him out of the vehicle.
The jury also heard testimony from O'Donald, who told them that Appellant called him to meet him in a parking lot and that while he waited, he heard two shots fired and saw two flashes of light inside a black vehicle that had just pulled up. O'Donald stated that he saw Appellant exit the vehicle holding a handgun. According to O'Donald, he then followedAppellant while Appellant drove the black vehicle to a location where Appellant staged a collision.
The jury heard the following testimony from employees at the Arkansas State Crime Laboratory. Appellant's DNA was found on several items obtained at Lawrence's residence, including a condom, a cigarette butt, and a tall drinking glass. Appellant's fingerprints were also found on a vodka bottle, a ceramic plate, and a short drinking glass, all of which were also found at Lawrence's residence. As to Lawrence's vehicle, Appellant's right-palm print appeared between the front and rear doors on the driver's side of the exterior of the vehicle, but no usable prints were found inside the vehicle. The jury was also told that none of Appellant's DNA was found inside the vehicle.
The defense made a proffer of evidence that Appellant was excluded as the source of semen found in a condom that was in the bathroom trash can at Lawrence's residence. The defense also proffered evidence that Appellant was excluded as the source of DNA found on a coffee mug at Lawrence's residence. In addition, the defense made a proffer that unknown fingerprints were found on a bottle of hemp oil that was on Lawrence's night stand, and that Appellant was excluded as the source of those prints.
The jury also saw surveillance video taken from a restaurant, which was obtained by the Arkansas State Police as part of their investigation of these murders. The investigating officer explained to the jury that the surveillance video depicted Appellant, Lawrence, Hughes, and Broderick Patrick leaving the restaurant at approximately 8:54 p.m. on May 8, 2009.
The State waived the death penalty, and Appellant waived his right to be sentenced by the jury. The jury returned guilty verdicts for the capital murder of Murphy, first-degree murder of Lawrence, and second-degree murder of Hughes. The circuit court sentenced Appellant as previously noted. This appeal followed.
Appellant's sole point on appeal is that the circuit court abused its discretion in granting the State's motion in limine to prohibit Appellant's introduction of fingerprints and trace-DNA evidence of unknown persons found inside the crime-scene vehicle and inside Lawrence's residence. The State's motion stated in relevant part:
In response to the motion, defense counsel argued that the defense did not intend to point the finger at any specific individual, but just wanted to make the jury aware of all the evidence, not just the evidence that the State would present. Defense counsel argued further that if the State presented testimony that Appellant was inside the vehicle, then it would berelevant for the purpose of creating reasonable doubt to allow the defense to present testimony that none of the DNA found inside the vehicle was Appellant's.
The circuit court granted the State's Zinger-based motion, stating as follows:
After this initial ruling, defense counsel raised an objection that the right to present a defense as contained in the United States Constitution would be paramount to our Arkansas case law such as Zinger, 313 Ark. 70, 852 S.W.2d 320. The circuit court then responded:
On appeal, we must determine whether the trial court abused its discretion in refusing to allow the evidence to be admitted. Shields v. State, 357 Ark. 283, 166 S.W.3d 28 (2004) (). As announced in Zinger, this court's standard for...
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Conte v. State
...tried for, the implication being that the perpetrator of the subsequent crime committed both. Zinger 's closest progeny, Birts v. State, 2012 Ark. 348, 2012 WL 4471108, likewise involved a healthy dose of speculation about an unknown perpetrator. In Birts, the defendant wished to introduce ......
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...trial court abused his discretion in refusing to allow the evidence to be admitted. 313 Ark. at 75-76, 852 S.W.2d at 323. Birts v. State, 2012 Ark. 348, and Armstrong v. State, 373 Ark. 347, 284 S.W.3d 1 (2008), were both decided after the United States Supreme Court case of Holmes v. South......
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