Holder v. State, CR 03-3.

• Decision Date: 09 October 2003
• Docket Number: No. CR 03-3.,CR 03-3.
• Citation: 354 Ark. 364,124 S.W.3d 439
• Parties: Elbert HOLDER v. STATE of Arkansas.
• Court: Arkansas Supreme Court

124 S.W.3d 439

Elbert HOLDER v. STATE of Arkansas.

No. CR 03-3.

Supreme Court of Arkansas.

October 9, 2003.

Louis A. Etoch, Helena, for appellant.

Mike Beebe, Att'y Gen., by: Clayton K. Hodges, Ass't Att'y Gen., Little Rock, for appellee.

JIM HANNAH, Justice.

Elbert Holder appeals his conviction on capital murder and his sentence of life without parole. Holder argues that the trial court erred in 1) refusing to recuse; 2) refusing to order the appearance of subpoenaed witnesses at the recusal hearing; 3) denying his motion for a directed verdict; 4) finding a Batson violation in voir dire; 5) putting persons on the jury who should have been excused; 6) refusing to allow him to exercise all his peremptory challenges; and 7) allowing a juror to remain on the case where the juror was a first cousin of a witness and failed to reveal the relationship in voir dire.

We hold that the trial court did not err in denying the directed-verdict motion, and that the trial court did not abuse its discretion in refusing to recuse. However, we also hold that the trial court erred in finding a Batson violation by Holder, and further erred in denying Holder his right to use his peremptory challenges that the trial court then kept a juror on the panel who should have been excused for cause, and that therefore, the case must be reversed and remanded for a new trial.

Facts

Late in the evening of June 23, 2001, police arrived at the scene of a shooting on Highway 85, south of Oneida, in Phillips County. When police arrived, they found Carla Knowlton Smith dead in the front seat of her Ford Expedition that had been driven to the scene by Elbert Holder. Carla had been shot. Shotgun casings were found on the ground. Holder told police that two black men in a Cadillac accosted and robbed him when Holder and Carla pulled over to the side of the road because of an argument about his driving. Holder's arm was wounded, and he had small holes in the bill of his cap. Police believed they found a number of inconsistencies in Holder's story and began an investigation.

Holder was later charged with capital murder. It was alleged that Holder, along with Brenda Dixon and Greg Jenkins, entered into a plan to kill Carla and carried out that plan on June 23, 2001. Holder's trial commenced May 20, 2002. The jury returned a guilty verdict, and Holder was sentenced to life without parole.

Sufficiency of the Evidence

Holder raises the issue of sufficiency of the evidence for his first point on appeal.

With regard to our analysis of claims of insufficient evidence, this court recently stated:

This court has repeatedly held that in reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the State and consider only the evidence that supports the verdict. Id.; Wilson v. State, 332 Ark. 7, 962 S.W.2d 805 (1998). We affirm a conviction if substantial evidence exists to support it. Carmichael v. State, 340 Ark. 598, 12 S.W.3d 225 (2000). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Id. Circumstantial evidence may provide the basis to support a conviction, but it must be consistent with the defendant's guilt and inconsistent with any other reasonable conclusion. Fairchild v. State, 349 Ark. 147, 76 S.W.3d 884; Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999). In other words, if you have two equally reasonable conclusions as to what occurred, this merely gives rise to a suspicion of guilt which is not enough to support a conviction. Howard v. State, 348 Ark. 471, 79 S.W.3d 273; cert. denied, 123 S.Ct. 606 (2002); Gregory v. State, 341 Ark. 243, 15 S.W.3d 690 (2000).

Edmond v. State, 351 Ark. 495, 501-02, 95 S.W.3d 789 (2003).

With this standard in mind, we conclude that there was substantial evidence to support the jury's verdict, although other trial errors require reversal. David Henson testified that Holder approached him and asked Henson if he would kill Carla. Brenda Dixon, Holder's long time girlfriend and mother of Holder's fifteen-year-old son, testified that Holder decided to kill Carla because Carla was going to provide evidence against Holder in an insurance fraud matter in Louisiana. Dixon testified that Holder discussed killing Carla on at least two occasions before finalizing those plans on Friday, June 22, 2001. On that Friday before the murder, Holder met with Dixon and instructed her to drive Greg Jenkins to where Carla was to be killed. Jenkins was to shoot Carla. Then according to Dixon, on Saturday, Holder met Dixon and Jenkins at the Pine Apartments where Holder instructed Dixon to pick up Jenkins between 4:30 p.m. and 5:30 p.m. Holder told Dixon and Jenkins that he would pick up Carla, and take her to an abandoned house near Oneida, where Dixon would deliver Jenkins who would then shoot Carla. Holder also explained that he would tell police he and Carla were robbed and Carla was shot by two black men who left in a black Cadillac.

Dixon then testified that when she picked up Jenkins, Jenkins had a shotgun which he put in the back seat of the car. Dixon then drove Jenkins to Helena Crossing where they met Holder. There they determined that they needed shotgun shells and Holder returned to town to acquire them. Upon Holder's return, they all drove out of town and pulled over where Holder shot a hole or holes in his cap using a pistol he had on his person. At this point, again according to Dixon, Holder drove on to pick up Carla, and Dixon drove Jenkins to the abandoned house and let him out. Jenkins hid in some weeds, and Dixon drove the car down the road and parked where she could still see the abandoned house. Victoria Chairse, who lives in the area, testified that on the night of the murder, she saw a car parked where Dixon testified she had parked the car. Dixon also testified that she saw Holder drive up and pull to the side of the road near the abandoned house, get out, and open the hood. Then she heard three shots she believed came from a shotgun. Dixon testified further, that she heard a fourth shot, although it was not as loud as the first three, and then Jenkins came running down the road to her car. Jenkins put the shotgun in the back seat. Dixon then took Jenkins to get a beer, and they put the shotgun in the trunk before returning to town.

According to the testimony of Brenda Taylor, she had loaned her car to Dixon that Saturday morning on June 23, and Dixon did not return to her home until early Sunday morning. Taylor testified further that Dixon was driving her own car when she returned, and they had to drive to where Taylor's car was parked behind a rest area. There, Taylor found her car dirty with grass on it. They took the car home, and that evening, Taylor discovered clothing in the back seat. She also found a flashlight and shotgun shells wrapped in a white napkin inside the car. She opened the trunk and found a shotgun. Taylor called police who took the shotgun and shells.

Taylor testified that the next morning, Dixon appeared at her home wanting the keys to the car. Shortly after Dixon's arrival, Taylor saw Holder and another man in the yard. After Dixon got the keys, she went outside where she and Holder opened the trunk. Taylor testified that from what she could see Dixon and Holder were discussing something, but she could not hear their conversation. According to Taylor, the police soon arrived and arrested Dixon and Holder.

Expert firearms/tool marks examiner Gary Lawrence testified that the shotgun seized from Taylor was the shotgun used to fire the casings found at the scene of the murder. Trace evidence expert Jeffrey Taylor testified that the damage to the clothing Carla was wearing was consistent with a shotgun blast from about ten feet, and that the holes in the cap showed copper residue consistent with jacketed ammunition rather than shotgun pellets and appeared to be near-contact shots. This would be consistent with Dixon's report that Holder shot his cap with a pistol.

Sharenzia Smith, Carla's daughter, testified that Holder showed up at her home about 5:00 a.m. Sunday morning. Sharenzia asked Holder where her mother was, and at first he said he did not know. When Sharenzia pressed Holder, he told her that there had been a robbery and her mother "did not look too good." According to Sharenzia, Holder then asked if she wished to go to the hospital, but when she said "yes," Holder went to Carla's room and began to remove things from Carla's dresser, including clothing that Holder and Carla had purchased for their honeymoon in the Bahamas.

Much of the testimony against Holder was provided by Dixon, who helped Holder plan and carry out the murder. The testimony of an accomplice must be corroborated before a defendant may be convicted of a felony. Barnett v. State, 346 Ark. 11, 53 S.W.3d 527 (2001). Arkansas Code Annotated section 16-89-111(e)(1)(A-B) (Supp. 2003) provides that a conviction cannot be had in any case of a felony upon the testimony of an accomplice unless it is corroborated by other evidence tending to connect the defendant with the commission of the offense and, further, the corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof.

The evidence in this case constitutes substantial evidence in support of the jury verdict. Further, although Dixon was a key witness, her testimony was corroborated by other evidence connecting Holder with the murder. There is no merit to Holder's claim that the trial court denied his directed-verdict motion in error.

Recusal

Holder argues that the trial judge was required to recuse because he showed "bias or prejudice" in the proceedings of this case. According to Holder, Judge Simes was biased because:

the victim's sister was an employee of the Judge's former law firm, the...