Dimas–Martinez v. State

• Citation: 385 S.W.3d 238,2011 Ark. 515
• Decision Date: 08 December 2011
• Docket Number: No. CR 11–5.,CR 11–5.
• Parties: Erickson DIMAS–MARTINEZ, Appellant v. STATE of Arkansas, Appellee.
• Court: Supreme Court of Arkansas

2011 Ark. 515

385 S.W.3d 238

Erickson DIMAS–MARTINEZ, Appellant

v.STATE of Arkansas, Appellee.

No. CR 11–5.

Supreme Court of Arkansas.

Dec. 8, 2011.

Janice Wegener Vaughn, Ark. Pub. Defender Comm'n, Little Rock, AR, for appellant.

Dustin McDaniel, Atty. Gen., Eileen W. Harrison and Valerie Glover Fortner, Asst. Attys. Gen., Little Rock, for appellee.

DONALD L. CORBIN, Justice.

Appellant Erickson Dimas–Martinez appeals an order of the Benton County Circuit Court convicting him of capital murder and aggravated robbery and sentencing him to death and life imprisonment, respectively.¹ On appeal, he alleges that the circuit court erred in (1) denying his motion for a mistrial after informing the jury that this court would automatically review Appellant's case; (2) refusing to dismiss jurors who disregarded the circuit court's instructions or to subsequently declare a mistrial; (3) allowing the State to introduce evidence during sentencing of a prior incident for which Appellant had not been charged or convicted; (4) allowing evidence of unrelated bad acts, weapons, and ammunition; and (5) ordering a new mental evaluation at the request of the State. Because Appellant was sentenced to death, we have jurisdiction pursuant to Arkansas Supreme Court Rule 1–2(a)(2) (2011). We reverse Appellant's conviction and sentence and remand this matter for a new trial.

Because Dimas–Martinez does not challenge the sufficiency of the evidence supporting his convictions, only a brief recitation of the facts is necessary. See, e.g., Vance v. State, 2011 Ark. 243, 383 S.W.3d 325. The record reflects that authorities were notified of a possible homicide just inside the Springdale city limits on December 30, 2006. Authorities found the partially clothed body of a young black male lying on his back with a single gunshot wound to the center of his forehead. The victim was later identified as seventeen-year-old Derrick Jefferson.

In the course of investigating the homicide, authorities interviewed several people who saw Jefferson just before his murder. Wilfredo Cortez told authorities that he met Jefferson, through his sister Melissa Cortez, on December 30, 2006. Cortez, Melissa, Jefferson, and Jefferson's friend, Freddie Ochoa, went to the Bottoms Up nightclub in Fayetteville, but left after a short time. After leaving the club in Fayetteville, the foursome split up, with Jefferson going with Cortez to the Rio Bravo club in Springdale. When the pair arrived at Rio Bravo, they discovered it was closed. While in the parking lot, another car pulled up. Inside the second car were two Hispanic males and two white females. Authorities later discovered that the two men were Appellant and Uris Magana–Galdamez, also known as Jason. The females were sisters, Keri McConnell and Candie Drain.

McConnell and Drain invited Jefferson and Cortez to a party at a duplex in Springdale, and they agreed to go. Sometime shortly after arriving at the party, Jefferson left with Drain to go to a store to buy cigarettes but came back a few minutes later. Cortez told authorities that he grew nervous, and when Jefferson returned Cortez demanded that they leave. Jefferson did not want to leave the party and went inside the house to see if he could find a ride home, and Cortez then left.

According to Ladislao Magana–Palma, who was renting the duplex where the party was and who is also Magana–Galdamez's uncle, Appellant told Jefferson he would give him a ride home. Magana–Palma stated that shortly thereafter, Appellant told Jefferson it was time to go, and Appellant, Jefferson, Magana–Galdamez, and the girls, McConnell and Drain, left in Appellant's car. Drain stated that Appellant gave Jefferson the car keys and asked Jefferson to drive because Jefferson had not been drinking. Appellant told the group he wanted to stop by a friend's house. Appellant went in alone and returned to the car about fifteen minutes later. He instructed Jefferson to stop at a second house, stating he had to get something. Appellant and Magana–Galdamez got out of the car to talk. Appellant then walked back to the car and asked if anyone had a cell phone. When they each denied having a cell phone, Appellant stuck a gun in the window, pointed it at Jefferson, and told him to get out of the car. Appellant continued to point the gun at Jefferson, while Magana–Galdamez held a knife on him, and demanded that Jefferson give him all his money. Appellant then ordered Jefferson to give him his shirt and jacket and snatched a hat off of Jefferson's head. Magana–Galdamez got into the driver's seat and started the car. As Appellant started to return to the car, Jefferson followed and Appellant turned and shot him. When Appellant got back into the car, he told Drain and McConnell not to say anything and threw a ten dollar bill into the backseat where they were sitting. He again threatened the girls, telling them he would harm their family if they said anything about the murder.

Appellant was arrested and charged with one count each of capital murder and aggravated robbery.² He was tried before a jury and convicted and sentenced as set forth above. Thereafter, Appellant filed a motion for new trial, arguing that there was juror misconduct, which warranted a new trial. Specifically, Appellant asserted that a juror was tweeting during the trial, despite specific instructions from the judge to not do so and, thus, where it was apparent that the juror could not follow the judge's instruction in that regard, it could not be assumed that he followed the instructions with regard to the law. The circuit court denied the motion for new trial. This appeal followed.

I. Violation of Caldwell v. Mississippi

As his first point on appeal, Appellant argues that the circuit court erred in refusing to grant a mistrial after informing the jury that this court would automatically review Appellant's case. According to Appellant, the circuit court made repeated references to this court's appellate review, thereby violating the Supreme Court's decision in Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), which prohibits the prosecutor in a case from informing a jury that an appeal will be had. The State argues that part of Appellant's argument is not preserved for review, as Appellant failed to make a proper objection. Moreover, the State asserts that there is no Caldwell violation where the circuit court never specifically addressed the jury's role in sentencing and did not affirmatively misstate the law or mislead the jury in any way.

Because we are reversing Appellant's convictions and sentences based on the issue of juror misconduct and remanding for a new trial, it is not necessary to address the merits of this argument. Bradford v. State, 325 Ark. 278, 927 S.W.2d 329 (1996). As the challenged statements were made by the circuit judge, who has since retired from the bench, it is unlikely that this issue will arise again during a new trial and, thus, we need not address it.

II. Juror Misconduct

Next, Appellant argues that the circuit court erred in failing to dismiss jurors who disregarded the circuit court's instructions and, thereafter, in failing to grant his motion for a mistrial based on allegations of juror misconduct. Specifically, Appellant points to the facts that one juror fell asleep during the guilt phase of the trial, a fact that was brought to the circuit court's attention, and a second juror was posting on his Twitter ³ account during the case, and continued to do so even after being questioned by the circuit court, as evidence of juror misconduct that calls into question the fairness of his trial. The allegation of juror misconduct related to the juror tweeting during the trial was also raised in a motion for new trial but denied by the circuit court. The State counters that Appellant did not preserve an objection to the sleeping juror and cannot demonstrate prejudice with regard to the twittering juror as the juror never tweeted specifics about the case. Because we conclude that the one juror sleeping and a second juror tweeting constituted juror misconduct, we reverse and remand for a new trial.

Before turning to the merits of the juror-misconduct issue, we must review the State's allegation that Appellant failed to preserve the issue of juror misconduct with regard to the sleeping juror. The record reflects that counsel for Appellant requested a bench conference, wherein she stated that

I would like you to take note that the juror who's seated in juror's seat number ten is sleeping quite a bit and I would like the Court to kind of keep an eye so we could ask to have him removed if it continued.

The circuit court replied that he had been watching the juror (hereinafter referred to as “Juror 1”) and that “[h]e comes and goes. I've sent him a cup of water.” Thereafter, the court recessed proceedings and sent the jurors on a break. Counsel for Appellant reiterated her concern about Juror 1:

Mr. Saxton was actually making note of the time that he nodded off. There were five minutes at times when he was sleeping and then he was in and out, and his co-juror seated to his right was nudging him there at the end to keep him awake. This is obviously technical ... testimony, but all testimony is critical and this juror has now missed out chunks of it, and I don't know that you can get that back. The only way he will be able to judge this testimony at this point is have another juror tell him what she testified to and that is absolutely inappropriate.

Thereafter, the circuit court brought Juror 1 to chambers to question him about the sleeping. The following colloquy took place:

The Court: I've got a couple of questions to ask you because I was a little bit concerned if you're getting drowsy up there.

Juror [1]: Okay.

The Court: Were you getting a little drowsy?

Juror [1]: I might have been.

....

The Court: Now, do you feel like you've picked up everything so far?

Juror [1]:...