Kinsey v. State

• Citation: 503 S.W.3d 772,2016 Ark. 393
• Decision Date: 17 November 2016
• Docket Number: No. CR–15–521,CR–15–521
• Parties: Gregory Aaron KINSEY, Appellant v. STATE of Arkansas, Appellee
• Court: Supreme Court of Arkansas

2016 Ark. 393

503 S.W.3d 772

Gregory Aaron KINSEY, Appellant

v.STATE of Arkansas, Appellee

No. CR–15–521

Supreme Court of Arkansas.

Opinion Delivered November 17, 2016

Rehearing Denied January 11, 2017

April Golden and Charlotte Aceituno Bogan, for appellant.

Leslie Rutledge, Att'y Gen., Little Rock, by: Adam Jackson, Ass't Att'y Gen., Little Rock, for appellee.

KAREN R. BAKER, Associate Justice

On November 24, 2014, appellant, Gregory Aaron Kinsey, was convicted by a Sebastian County Circuit Court jury of one count of first-degree murder and one count of second-degree murder. Kinsey was sentenced to forty years and thirty years, respectively, to be served consecutively. Kinsey timely appealed and presents three points on appeal: (1) the circuit court erred in denying Kinsey's motion for a directed verdict because the State failed to negate his defense of justification; (2) the circuit court erred in refusing to instruct the jury as to the appropriate burden of proof on the defense of justification; and (3) the circuit court erred in finding that Kinsey opened the door to questions regarding Kinsey's past behavior.

I. Facts

On July 1, 2013, Kinsey was charged with two counts of capital murder in the June 26, 2013, deaths of Brandon Prince and Nathan Young. At trial, Nathan Maynard testified that he lived next door to Prince and across the street from Young in Fort Smith. Maynard testified that at around 9:00 p.m., Young knocked on his door and asked him if he wanted to come outside and drink a beer. Prince joined them on the porch. Maynard testified that at approximately 9:30 p.m., the three men noticed Kinsey squatting down in the alley adjacent to Young's house and was looking through Young's fence. Maynard further testified that Prince and Young approached Kinsey and Young asked Kinsey what he was doing. Maynard testified that Kinsey was carrying grocery bags, which Kinsey threw down, and told the men that he was "satan." Maynard testified that Kinsey then proceeded to pull out a machete. Maynard testified that he stepped off the porch and put down his beer, and that when he looked up he witnessed Kinsey strike Prince with the machete. He further testified that Kinsey then began striking Young with the machete. Maynard testified that Prince tried to run but only made it to the porch where he fell. When Young attempted to run, Kinsey chased him, struck him and continued striking Young with the machete while Young was on the ground. Maynard further testified that he grabbed a piece of wood, a two-by-four-inch board, and hit Kinsey with it. Maynard testified that after hitting Kinsey with the board, he threw the wood at Kinsey and fled.

Cole Prince, Prince's sixteen-year-old son, fifteen years old at the time of the crimes, also testified. Prince testified that he was visiting for Father's Day, heard his father's screams from outside, went outside to help his father and saw Kinsey. Prince testified that he took his two-year-old brother next door, grabbed a towel, and tried to stop his father's bleeding. Prince further testified that he saw Kinsey as soon as he opened the door, Kinsey was kneeling to pick up his bags and Prince heard Kinsey say "I shouldn't have done this."

At trial, a recorded statement given by Kinsey to law enforcement on the night of the murders was played for the jury. In the statement, Kinsey told the police that he had been to the Dollar General Store to buy toilet paper, tea, and sodas and that he was walking through the alleys on his way back home when he thought he saw a man who used to date and "have violent altercations" with his mother. Kinsey stated that he thought it was important to confirm whether it was the same man so he could alert his mother if the man was back in Ft. Smith. Kinsey further stated that he did not want to be seen while he was looking into the yard and that a man across the street from where he was standing called out to him and asked him what he was doing. Kinsey said that the man thought he was possibly urinating on his house and further stated that "[i]t was clear that they wanted to start an altercation." According to Kinsey, he became angry, tossed down his grocery bags, and told the men that "I don't want to go to prison today." Kinsey stated that he spoke louder because "I'm too quiet for most people to hear." Kinsey stated that when the man asked him why he was creeping around he became angry, tossed the bags down, yelled at the man, "I don't want to go to prison today," and then stated

I can't remember much of what happened. I remember he and the other guy, they started coming real close to me. I just told them, please, man, I just want to go home. Don't make this happen.

Kinsey further stated "I started picking up my groceries to walk off. He told me, I know you're trying to sound like Satan to scare me, but I'm not afraid of you. He and the other guy got real close to me. I pulled out the machete because I thought I would scare them off." According to Kinsey, one of the men said that he was not afraid of the knife. He said that the men "started hemming me in," and got close enough that "I felt their breath on me," and that Kinsey "started swinging" the machete. Kinsey remembered that he cut one of the men's arms with the first swing and stated:

I remember cutting him. I remember cutting the other boy who was by me..... All I remember seeing is the blood fly and him turn over and move off from me. So I concentrate on the little guy, the short one, the one who did most of the talking. I remember he tried to flee, but I don't think I registered it at the time. I pursued him. I kept cutting. I wasn't trying to kill him. I wasn't trying to incapacitate him. It's just once I started swinging, I just kept swinging. At one point, he went to the ground, his hands over the back of his neck like he went into a submissive position. That's when I first really came to, consciously again. I remember him looking at me and saying, I give up, you win. I remember the watery gurgle in his voice made me think I might have hit his throat. I - - - that's when I decided I should stop. Before then, there was no thought of stopping because I wasn't thinking. I was just doing.

...

I guess in the end, there's no justifying. Of course, I can say it was self defense. I felt they were going to jump me, but ultimately I swung first. I used a machete. It just occurred to me while sitting in the waiting room twenty minutes ago that I could have left after I cut them the first couple of times because they were running. But it was just - - - it was instinct.

Kinsey also stated that he could have left the men, but he pursued them. Finally, Kinsey stated that a third man, who was standing by the porch, hit him with a two-by-four-inch board during the fight—"it just bounced off and I ignored him."

Dr. Daniel Dye, the medical examiner, testified that Prince had been struck once and that the "chop wound" cut through the artery, which was "rapidly fatal." Dye further testified that Young was essentially hacked to death. Young sustained between eight and eleven blows, and the cause of death was multiple chop wounds. The jury convicted Kinsey as set forth above and this appeal followed.

II. Points on Appeal

A. Sufficiency of the Evidence

We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Whitt v. State , 365 Ark. 580, 232 S.W.3d 459 (2006). In reviewing a challenge to the sufficiency of the evidence, this court assesses the evidence in the light most favorable to the State and considers only the evidence that supports the verdict. Tillman v. State , 364 Ark. 143, 217 S.W.3d 773 (2005). This court will affirm a judgment of conviction if substantial evidence exists to support it. Id. Substantial evidence is evidence 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. Finally, the credibility of witnesses is an issue for the jury. Id. The trier of fact is free to believe all or part of any witness's testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id.

With these standards in mind, we turn to Kinsey's first point on appeal. Kinsey's challenge to the sufficiency of the evidence supporting his convictions contends that the State failed to negate his defense of justification. Kinsey asserts that the State failed entirely to address his claim of self- defense: "The State did not offer any evidence disproving that Prince and Young were the aggressors." Kinsey also contends that any evidence that the State did present was not of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. The State responds that Kinsey's argument is not preserved for review, but further argues that Kinsey's convictions are supported by substantial evidence.

Prior to reaching the merits of Kinsey's first point on appeal, we must address the State's position that Kinsey failed to preserve the issue for review because Kinsey failed to address any specific deficiencies of State's proof in his motion below. The applicable statute is Ark. Code Ann. § 5–2–607, "Use of deadly physical force in defense of a person," which provides:

(a) A person is justified in using deadly physical force upon another person if the person reasonably believes that the other person is:

(1) Committing or about to commit a felony involving force or violence;

(2) Using or about to use unlawful deadly physical force; or

(3) Imminently endangering the person's life or imminently about to victimize the person as described in § 9–15–103 from the continuation of a pattern of domestic abuse.

(b) A person may not use deadly physical force in self-defense if the person knows that he or she can avoid the necessity of using deadly physical force:

(1)(A) By retreating.

(B) However, a person is not required to retreat if

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