Decay v. State

• Decision Date: 12 November 2009
• Docket Number: No. CR 08–1259.,CR 08–1259.
• Citation: 352 S.W.3d 319,2009 Ark. 566
• Parties: Gregory Christopher DECAY, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

2009 Ark. 566

352 S.W.3d 319

Gregory Christopher DECAY, Appellant,

v.STATE of Arkansas, Appellee.

No. CR 08–1259.

Supreme Court of Arkansas.

Nov. 12, 2009.

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

Dustin McDaniel, Att'y Gen., by: LeaAnn Irvin, Ass't Att'y Gen., and Laura K. Shue, Ass't Att'y Gen., for appellee.

PAUL E. DANIELSON, Justice.

Appellant Gregory Decay appeals from the judgment and commitment order of the Washington County Circuit Court, convicting him of two counts of capital murder and sentencing him twice to death. Decay argues fourteen points on appeal: (1) the circuit court erred in failing to suppress Decay's statements to law enforcement; (2) the circuit court erred in failing to suppress telephone calls made by Decay from the Washington County Detention Center; (3) the circuit court improperly excused four jurors for cause; (4) the circuit court erred by refusing to submit a jury instruction regarding Decay's good character; (5) the circuit court erred in prohibiting testimony and evidence of the victims' lives during the guilt phase of trial; (6) the circuit court erred by allowing the State to present a photograph of Decay holding an assault rifle; (7) the circuit court erred in admitting the testimony of a third-party statement into evidence; (8) the circuit court erred by allowing the State to obtain two separate sentences of death for the same aggravating circumstance; (9) the circuit court erred in rejecting Decay's proffered jury instruction regarding victim-impact testimony; (10) the jury erred by failing to find evidence presented that constituted mitigating factors; (11) the circuit court failed to limit victim-impact testimony presented by the State; (12) the circuit court erroneously limited evidence of mitigation; (13) the circuit court erred by allowing the prosecutor to make improper statements during closing arguments; and, finally, (14) this court should reverse for other issues after conducting a mandatory review pursuant to Rule 10 of the Arkansas Rules of Appellate Procedure–Criminal. We find no error and affirm.

Decay does not challenge the sufficiency of the evidence; therefore, it is not necessary to recite the facts in great detail. See Osburn v. State, 2009 Ark. 390, 326 S.W.3d 771. On the morning of April 3, 2007, Janis Jones, mother of Kevin Jones, found Kevin and his girlfriend, Kendall Rice, shot and dead in their apartment. During the course of the investigation, law enforcement officers came into contact with Decay. After being interviewed, Decay eventually confessed his responsibility in the shooting of Kevin Jones and Kendall Rice. He was tried by a jury on April 21, 2008.

During the jury trial, the State introduced, among other evidence, two oral statements and one written statement made by Decay to detectives and two recorded telephone conversations that Decay had with his family while incarcerated at the Washington County jail. The State's theory of the case was that Decay knew the victims because he had sold them drugs, Decay believed the victims had burglarized his apartment, and Decay killed the victims out of revenge. The jury found Decay guilty of two counts of capital murder and sentenced him to death on each count. It is from those convictions and sentence that Decay now appeals.

I. Suppression of Statements

Decay's first argument is that the circuit court erred in denying his motions to suppress his April 4, 2007 statement and his April 6, 2007 statement because they were unlawfully obtained through a lengthy and accusatory interview. He further argues that his written statement was unlawfully obtained through a false statement from one of the detectives, Detective French, made to induce Decay to give a confession. The State alleges that these issues are not preserved or were not properly supported on appeal. Alternatively, the State argues that Decay's arguments are without merit.

In reviewing the denial of a motion to suppress a custodial statement, this court looks to see if the confession was the product of free and deliberate choice rather than intimidation, coercion, or deception. See Reese v. State, 371 Ark. 1, 262 S.W.3d 604 (2007). When we review a circuit court's ruling on the voluntariness of a confession, we make an independent determination based on the totality of the circumstances. See id. We will reverse the circuit court only if its decision was clearly against the preponderance of the evidence. See Flowers v. State, 362 Ark. 193, 208 S.W.3d 113 (2005).

No argument is developed on appeal as to Decay's April 4 statement. Therefore, we do not consider it on appeal. This court does not consider an argument, even a constitutional one, when the appellant presents no citation to authority or convincing argument in its support, and it is not apparent without further research that the argument is well taken. See Davis v. State, 2009 Ark. 478, 348 S.W.3d 553.

Decay argues that his April 6 statement was unlawfully obtained because it was only made after an intensive and accusatory interview and because of a false statement made by the detective suggesting that a jury might be more favorable towards a person who gave a statement. Decay further alleges that his written statement was a result of false statements made by the detective. However, these arguments were not presented below in the motion to suppress, nor at the suppression hearing. It is well settled that where an appellant does not advance an argument below as part of the motion to suppress, we will not consider it for the first time on appeal. See Bunch v. State, 346 Ark. 33, 57 S.W.3d 124 (2001).

II. Telephone Calls

Next, Decay contends that the circuit court erred in failing to suppress the telephone calls that he made from the Washington County Detention Center because he argues they were monitored and recorded without his consent. While he admits that federal courts have held that an inmate impliedly consents to having his telephone conversations taped, he contends that the lack of policy or procedure in place to exempt privileged telephone conversations between attorneys and clients makes the instant case distinguishable. The State responds that the circuit court did not err in admitting that evidence because the transcripts of the telephone calls that were admitted clearly indicate that all parties to the conversation were apprised that the call may be recorded or monitored and, therefore, there was not a reasonable expectation of privacy.

A decision to admit or exclude evidence is within the sound discretion of the circuit court. See Rounsaville v. State, 374 Ark. 356, 288 S.W.3d 213 (2008). A circuit court abuses its discretion when in making a decision it acts improvidently, thoughtlessly, or without due consideration. See Sauerwin v. State, 363 Ark. 324, 214 S.W.3d 266 (2005).

Here, the telephone calls that were admitted into evidence were two calls made by Decay to his family, both placed on April 7, 2007. During the pretrial suppression hearing, Jak Kimball, the Information Technology Manager at the Washington County Sheriff's Office, testified that inmates must use the registration process to use the telephones. He stated that each time an inmate picks up the handset during the registration process, the first thing they hear is an automated voice informing them that the call is monitored and may be recorded. Kimball also testified that every call an inmate subsequently makes also begins with a recording stating that the call may be recorded. He did not think that the person on the other end of the line from the inmate also heard the same recording, but admitted he did not know for sure. The transcripts of Decay's telephone calls indicate that before any conversation began, there was an automated voice that stated “This is AT & T[. T]his call may be recorded or monitored. I have a collect call from.” There was then a pause for Decay to state his name. Therefore, not only did Decay receive the warning that his call might be recorded or monitored, the individual on the other end of the line that had to accept his collect call did as well.

There is not an Arkansas case directly on point; however, the Eighth Circuit has ruled on this specific issue and, while not binding on our court, we find it highly persuasive. The Eighth Circuit has held that an inmate impliedly consents to the monitoring of his calls, even despite an inability to refuse such monitoring, if he was made aware of the prison's monitoring. See United States v. Horr, 963 F.2d 1124 (8th Cir.1992). Again, in United States v. Morin, 437 F.3d 777 (8th Cir.2006), the court stated that when an inmate had been given a prisoners' handbook that informed prisoners that jailhouse calls would be monitored and there were also signs above the phones in the prison warning inmates of that fact, his recorded conversations were admissible at trial. In the instant case, an automated recording informed Decay during the registration process that the call may be monitored or recorded. Additionally, a recording again informed Decay, along with the individual to whom he placed the call, that the call may be monitored or recorded before their conversation could begin. Therefore, Decay was made aware that his telephone calls were monitored and recorded, he had no reasonable expectation of privacy, and we cannot say that the circuit court abused its discretion in admitting transcripts of those telephone conversations into evidence.

III. Excusals for Cause

For his third point on appeal, Decay alleges that by allowing four jurors to be excused for cause without first determining if they could set aside their personal philosophies and follow the law, the circuit court violated his right to a cross-section of the community for a jury and his right to a fair trial. The State contends that Decay did not preserve this issue for appeal.

We must agree that this issue is not...