Greene v. State

• Citation: 977 S.W.2d 192,335 Ark. 1
• Decision Date: 05 November 1998
• Docket Number: No. CR,CR
• Parties: Jack Gordon GREENE, Appellant, v. STATE of Arkansas, Appellee. 96-362.
• Court: Supreme Court of Arkansas

Page 192

977 S.W.2d 192

335 Ark. 1

Jack Gordon GREENE, Appellant, v. STATE of Arkansas, Appellee.

No. CR 96-362.

Supreme Court of Arkansas.

Nov. 5, 1998.

William M. Pearson, Clarksville, for Appellant.

Winston Bryant, Attorney General, Kent G. Holt, Assistant Attorney General, James Gowen, Law Student, Little Rock, for Appellee.

NEWBERN, Justice.

In 1992, Jack Gordon Greene was tried for the murder of Sidney Jethro Burnett. A jury found Mr. Greene guilty and returned a death sentence. We affirmed the conviction but set aside the death sentence and remanded the case for resentencing. Greene v. State, 317 Ark. 350, 878 S.W.2d 384 (1994)("Greene I "). A resentencing proceeding occurred, and a second jury sentenced Mr. Greene to death. Mr. Greene has appealed from his death sentence and alleges six points of error. We conclude that two of them have merit. We also have determined, pursuant to our review of the transcript in accordance with Ark. Sup.Ct. R. 4-3(h), that yet another reversible error, not argued by Mr. Greene, occurred. We must vacate the sentence and again remand the case.

The facts surrounding the murder are set out at length in Greene I. We restate them briefly. Mr. Burnett and his wife befriended Mr. Greene and his wife when the Greenes sought help from the Burnetts through a church charity program. The Burnetts gave the Greenes employment and a place to live. The Greenes apparently had marital difficulties. Ms. Greene left Arkansas, and thereafter Mr. Greene left, but he returned to Johnson County briefly and was seen by Ms. Burnett. Mr. Greene apparently thought Ms. Burnett had interfered in his relationship with his wife.

Mr. Burnett's body was found in his home with his feet and hands bound. He had been shot in the chest and head and beaten with a hard object. He had been stabbed more than once, and his face had been mutilated. The State Medical Examiner testified that Mr. Burnett had been subjected to painful stabbing and beating while still alive. A .25-caliber firearm caused the bullet wounds.

After Mr. Burnett's body was discovered, Mr. Greene became a suspect, and he was arrested in Oklahoma while in possession of a .25-caliber pistol and ammunition. Upon his arrest as a person wanted in connection with Mr. Burnett's death, Mr. Greene told the arresting officer, "I'm your man," and he remarked that Ms. Burnett had caused Mr. Greene's wife to leave him and had wrongfully accused him of burning a building belonging to the Burnetts.

1. Aggravating circumstances

The error that we have discovered in our examination of the record under Ark. Sup.Ct. R. 4-3(h), as well as Mr. Greene's fifth point on appeal, both concern the State's presentation of evidence of "aggravating circumstances."

In a capital-murder case, the jury may impose the death penalty only if it finds beyond a reasonable doubt that one or more statutorily defined aggravating circumstances exist, outweigh any mitigating circumstances found to exist, and justify a sentence of death. Ark.Code Ann. § 5-4-603 (Repl.1997). One of the aggravating circumstances upon which the jury based the recommended sentence in Greene I was that Mr. Greene was a person who had "previously committed another felony, an element of which was the use or threat of violence." Ark.Code Ann. § 5-4-604(3) (Repl.1997).

In the sentencing phase of the first trial, the evidence presented on the "prior violent felony" point was Mr. Greene's conviction in North Carolina resulting from the murder of his brother. That conviction was later reversed by the North Carolina Supreme Court in State v. Greene, 335 N.C. 548, 438 S.E.2d 743 (1994). The reversal of the North Carolina conviction was one basis for our setting aside Mr. Greene's death sentence in Greene I.The other was the failure to allow evidence of some of the mitigating circumstances submitted by Mr. Greene.

In the second sentencing proceeding--the one we are now reviewing--the State introduced testimony and documentary evidence in support of its claim that Mr. Greene had committed a "prior violent felony." Angela Dawn Blankenship, Mr. Greene's niece, testified that she was abducted by Mr. Greene on July 16, 1991, and forced to accompany him for two days and nights in his car in North Carolina. They ultimately stopped at the home of Tommy Greene, who was the brother of Jack Gordon Greene and Ms. Blankenship's mother. Ms. Blankenship witnessed Jack Gordon Green shoot Tommy Greene on July 18, 1991. Steve Cabe, a North Carolina law-enforcement officer, testified about his investigation of the shooting. Through Mr. Cabe's testimony, the State introduced Tommy Greene's death certificate showing that he had died from five gunshot wounds on July 18, 1991.

The Trial Court rejected defense counsel's argument that the evidence was insufficient to establish that Mr. Greene had committed a previous "felony" in North Carolina and submitted the "prior violent felony" aggravating circumstance to the jury over defense counsel's objections. The Trial Court submitted the "especially cruel and depraved manner" aggravating circumstance to the jury without objection. These were the two aggravating circumstances upon which the jury based its recommended sentence of death.

a. Sufficiency of the evidence

When this Court reviews a death sentence, it must review the record in accordance with Ark.Code Ann. § 16-91-113(a) (1987) and Ark. Sup.Ct. R. 4-3(h) for all errors raised in the trial court that are prejudicial to the appellant regardless of whether the errors are raised on appeal. This review includes considering whether the evidence presented was sufficient to allow the jury to consider a statutory aggravating circumstance. Collins v. State, 261 Ark. 195, 221, 548 S.W.2d 106, 120-21 (1977).

Our focus is on the Trial Court's denial of Mr. Greene's motion for directed verdict and its submission to the jury of the "prior violent felony" circumstance over the objection that the evidence was insufficient to allow the jury to consider it. The brief contains no argument on this point, but defense counsel preserved the issue by making proper objections in the sentencing proceeding. We therefore may address the issue under Rule 4-3(h). See Bragg v. State, 328 Ark. 613, 629, 946 S.W.2d 654, 663 (1997); Willett v. State, 322 Ark. 613, 623-25, 911 S.W.2d 937, 942-43 (1995). We consider this sufficiency issue before addressing other alleged trial error, Britt v. State, 334 Ark. 142, 150, 974 S.W.2d 436, 439 (1998), and we conclude that the Trial Court erred by denying defense counsel's motion for a directed verdict on the issue of the "prior violent felony" aggravating circumstance.

We may affirm a jury's finding that an aggravating circumstance exists beyond a reasonable doubt only if the State has presented substantial evidence in support of each element of the aggravating circumstance. Echols v. State, 326 Ark. 917, 988, 936 S.W.2d 509, 546 (1996); Sheridan v. State, 313 Ark. 23, 30-32, 852 S.W.2d 772, 775-77 (1993). "Substantial evidence" is that evidence which is "forceful enough to compel reasonable minds to reach a conclusion one way or the other" and permits the trier of fact to "reach a conclusion without having to resort to speculation or conjecture." McGehee v. State, 328 Ark. 404, 410, 943 S.W.2d 585, 588 (1997).

Here, the only evidence before the jury from which it could have concluded that Mr. Greene committed a prior felony involving violence was the testimony of Ms. Blankenship and Mr. Cabe and the death certificate of Tommy Greene. In his motion for directed verdict at the conclusion of the State's case, Mr. Greene's counsel argued that the State, in order to establish an aggravating circumstance, had attempted to conduct a "trial within a trial" by presenting evidence that Jack Gordon Greene killed Tommy Greene. Defense counsel asserted that Mr. Greene had not had an opportunity to defend against that allegation and that his right to due process of law was thus violated. Defense counsel then asserted that the evidence had not established that Mr. Greene's abduction of Ms. Blankenship amounted to a felony in North Carolina and that the jury would be left to assume that the conduct was felonious.

The prosecutor responded that the proof was "unrebutted" that Mr. Greene had killed his brother, and he asserted that the homicide was "obviously" and "clearly" a "previous felony." When the prosecutor argued that Mr. Greene's abduction of Ms. Blankenship also "[rose] to the level of a felony," the Trial Court questioned whether the prosecution had a copy of a North Carolina statute on the point, and the prosecutor replied that he could have the law "faxed" to him. No such statute was produced.

As the discussion continued, the Trial Court observed that it did not "know whether the actions that's been testified to here by Ms. [Blankenship]--concerning Mr. Greene to the young lady would be a felony or not." The Trial Court remarked that the State had produced evidence of the death of Tommy Greene and that the State "can argue either way." It ruled that the "prior violent felony" circumstance would be submitted to the jury.

Defense counsel then requested the Trial Court to instruct the jury not to consider the abduction of Ms. Blankenship in determining whether Mr. Greene had committed a prior violent felony in connection with the shooting of Tommy Greene. Defense counsel asserted:

As I understand the State's theory of this case, [it] is that they not only wanted to prove up that particular fact [the abduction of Ms. Blankenship] as a felony, but also the particular fact of the death of Tommy Greene. It's a deception to the jury for them not to know that it is not to be considered in terms of the aggravating circumstance of another felony.

The Trial Court opined that defense counsel's request would require it to give separate "prior violent felony" instructions to the jury--one concerning the killing of ...