Furlow v. State
| Decision Date | 05 April 2023 |
| Docket Number | CR-22-364 |
| Parties | RHATEZ FURLOW APPELLANT v. STATE OF ARKANSAS APPELLEE |
| Court | Arkansas Court of Appeals |
APPEAL FROM THE CRAIGHEAD COUNTY CIRCUIT COURT, WESTERN DISTRICT [NO. 16JCR-19-929] HONORABLE RANDY F. PHILHOURS, JUDGE
Lassiter & Cassinelli, by: Michael Kiel Kaiser, for appellant.
Leslie Rutledge, Att'y Gen., by: Jacob H. Jones, Ass't Att'y Gen., for appellee.
Rhatez Furlow appeals from the Craighead County Circuit Court conviction of two counts of second-degree murder, a Class Y felony; and two counts of commission of a felony with a firearm, a Class B felony, to which he was sentenced by a jury to 150 years' imprisonment. On appeal, he raises five arguments for reversal: (1) the circuit court abused its discretion by allowing irrelevant evidence referring to Furlow by his nickname, Gotti, three times; (2) the circuit court abused its discretion by allowing hearsay attributed to the victim, Kafena Russell; (3) the circuit court abused its discretion by refusing to give instructions on self-defense and extreme-emotional-disturbance manslaughter; (4) the circuit court allowed improper arguments by the prosecutor and (5) the circuit court erred by refusing to apply Furlow's 868 days of jail credit toward his sentence in this case. We find no error and affirm.
The appellant, Rhatez D. Furlow, shot and killed his girlfriend Kafena Russell, and her brother, Johnny Ray Russell, in Kafena's apartment on the night of July 17, 2019. Kafena "put him out" of her apartment where he co-habitated with her up until July 17 upon the belief that Furlow was cheating on her after she had returned unexpectedly from a trip to Missouri and found him with another woman in their apartment.
On July 18, 2019, the victims were found by an unidentified woman believed to be Kafena's relative. A neighbor, Mike Smith, heard the woman scream and went to investigate and found the two bodies. Police interviewed Mike Smith, who advised them Kafena had told him that she had kicked Furlow out of the apartment and said it was "over" just hours prior to her murder that night. At trial, Smith testified he had also noticed Furlow on a hill near the apartment watching Kafena and him that afternoon while they were talking.
Officers sought and located Furlow at the police station in Marked Tree on July 18 where he was being held in relation to an unrelated stabbing that occurred earlier that day. When questioned by officers, Furlow admitted he had been at Kafena's home the previous night but denied killing the victims or knowing who might have killed them. He said he left the apartment about 11:30 p.m. He said he called the mother of his child, Wendy White, to pick him up near the murder scene. He stated he walked around for about an hour before she picked him up. When he got into the car, he appeared angry and disheveled and stated to her he had been "jumped." They went back to Wendy's home where later the stabbing incident occurred that led to his detention at the Marked Tree police station when officers questioned him.
After his arrest, Furlow gave two additional statements to the officers and eventually confessed to the murders. In those statements, he advised officers that he had called Kafena that night, but she would not answer her phone, so he called Johnny Ray to get him to let Furlow into the apartment to get his clothes. He explained to officers that he and Kafena were living together and that she had locked him out of the apartment. Furlow also stated that Johnny Ray did not recognize his voice when he called because he had laryngitis and was hoarse so he had to identify himself as Gotti, his nickname, so he would let him into the apartment. When Furlow arrived at the apartment, he had a bag with him that had his pistol in it. He said he sold marijuana and needed it for protection, so he carried it with him all the time.
Furlow said that Kafena and Johnny Ray were nagging him as soon as he entered the apartment about cheating and the woman who was with him in the apartment. Furlow stated he had gone upstairs at one point because he wanted to change his shirt and that they followed him upstairs, nagging him, and he tried to slam the bedroom door in their faces. He later came downstairs after changing his shirt. When he came back downstairs, they continued to argue, and he admitted to officers that he had gotten "mad, mad, mad" at their continued verbal assault. During the argument, Furlow said Kafena was standing at the loveseat in the living room, and Johnny Ray was walking around in the kitchen apparently rolling a dollar bill to snort cocaine. Furlow stated he was standing by the television that was next to the front door while the argument continued. According to his statement and the crime-scene photographs, the television was next to the front door where he said he was standing, and the victims were across the room further into the apartment. Crime-scene photos show that Kafena was found lying on the kitchen side of the loveseat near the kitchen table, and Johnny Ray was lying behind the kitchen table against the kitchen counter. A diagram of the apartment and the crime-scene photos introduced into evidence without objection showed that neither victim was close to the front door of the apartment. Near the bodies were two wooden sticks. A knife was found outside in the bushes but could not be tied to either Kafena or Johnny Ray. Furlow told officers that there was no physical contact between the parties, and no weapons were used or threatened to be used by the victims, only verbal arguments. Furlow told officers that after the victims were killed he left the apartment and went to an area near an abandoned building where he threw the gun and magazine away in an overgrown area. Officers never recovered the weapon, although a search was conducted. Furlow admitted that his pistol was a 9mm. The State introduced evidence that the bullets recovered from the bodies of the victims were 9mm. The medical examiner testified that each victim had been shot five times.
Furlow argues for his first point on appeal that the circuit court abused its discretion by allowing into evidence his statement to police that his nickname is "Gotti," in violation of Arkansas Rules of Evidence 404(b) and 403 (2021). Specifically, he argues that the name Gotti associated him with the prior bad acts of mafia boss John Gotti and that admission of the nickname was more prejudicial than probative. Furlow argues that his character was brought into issue on the basis of his chosen nickname without any evidence that it was prejudicial. In effect, the bad acts of another person would be a reflection on his character and therefore prejudicial.
In his statements to officers, Furlow volunteered that his nickname is Gotti and told officers that he used his nickname "Gotti" when he called Johnny Ray so that Johnny Ray would recognize him and open the door and let him into the apartment.
The admission of evidence under Rules 404(b) and 403 is committed to the sound discretion of the circuit court, and the appellate court will not reverse absent a showing of manifest abuse of discretion. E.g., Atwood v. State, 2020 Ark. 283, at 17. Abuse of discretion is a high threshold that does not simply require error in the circuit court's decision but requires that the circuit court act improvidently, thoughtlessly, or without due consideration. Id. Arkansas Rule of Evidence 401 (2021) defines relevant evidence as 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. Under Rule 404(b), evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. However, "any circumstance that ties a defendant to the crime" is independently relevant and admissible as evidence. Jackson v. State, 359 Ark. 297, 305, 197 S.W.3d 468, 474 (2004). Furlow's phone call placed him at Kafena's apartment, which established him as a suspect; thus, it was relevant and admissible even if his nickname was used in the call. The fact that he used his nickname in the call was instrumental in his being allowed into the apartment that night.
Here, the nickname "Gotti" was not offered as evidence of other crimes, wrongs, or acts committed by Furlow, nor was it offered to prove his character, regardless of Furlow's speculation that the nickname associated him with mafia boss John Gotti and gang activity decades ago. There was never any mention of John Gotti to the jury nor was there any evidence presented that Furlow was involved in gang activity. When Furlow told the detectives in the interview that his nickname is "Gotti," they did not make any comment or seem to make the connection to John Gotti. The court is not required to speculate as to how a jury would relate Furlow's nickname to a person who was a gangster many years ago in New York City. In compliance with the circuit court's ruling, the State made no negative argument, examination, or inferences about the nickname. Prejudice is not presumed, and this court will not reverse a conviction absent a showing of prejudice. The circuit court did not abuse its discretion by admitting Furlow's statement that contained the nickname "Gotti" over Furlow's Rule 404(b) objection.
The circuit court likewise did not abuse its discretion by overruling Furlow's Rule 403 objection. Under Rule 403 relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. However, "any...
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