Kitchell v. State

• Decision Date: 05 March 2020
• Docket Number: No. CR-19-500,CR-19-500
• Citation: 594 S.W.3d 848,2020 Ark. 102
• Parties: Chad KITCHELL, Appellant v. STATE of Arkansas, Appellee
• Court: Arkansas Supreme Court

2020 Ark. 102

594 S.W.3d 848

Chad KITCHELL, Appellant

v.STATE of Arkansas, Appellee

No. CR-19-500

Supreme Court of Arkansas.

Opinion Delivered: March 5, 2020

Short Law Firm, by: Lee D. Short, Little Rock, for appellant.

Leslie Rutledge, Att’y Gen., by: Karen Virgina Wallace, Ass’t Att’y Gen., for appellee.

COURTNEY RAE HUDSON, Associate Justice

Appellant Chad Kitchell appeals from the life sentence imposed by a Saline County jury after his original life-without-parole sentence was vacated due to Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and a resentencing hearing was held. For reversal, Kitchell argues the circuit court erred by allowing the jury to be informed of his prior sentence. We agree and reverse and remand for a new sentencing hearing.

In November 1992, Kitchell entered a negotiated plea of guilty to the capital murder of twelve-year-old Robin Richardson and the attempted capital murder of her mother, Hazel Richardson, during the robbery of the Mount Olive Grocery store on June 1, 1991. He was sentenced to life without the possibility of parole for the capital murder, plus thirty years’ imprisonment for the attempted murder. Kitchell was seventeen years old at the time of the crimes.

In Miller v. Alabama , supra , the Supreme Court held that the Eighth Amendment forbids a mandatory sentence of life without parole for a juvenile offender and that a juvenile facing a life-without-parole sentence is entitled to a sentencing hearing at which a judge or jury may consider the individual characteristics of the defendant and the circumstances of the crime. In Jackson v. Norris , 2013 Ark. 175, 426 S.W.3d 906, this court decided a companion case to Miller on remand from the Supreme Court. We granted habeas relief and remanded to the circuit court for a sentencing hearing where Jackson could present Miller evidence for consideration. Id. We further held that Jackson’s sentence must fall within the statutory discretionary sentencing range for a Class Y felony, which is ten to forty years, or life. Id. Subsequent to Jackson , we held in Kelley v. Gordon , 2015 Ark. 277, 465 S.W.3d 842, that Miller was to be applied retroactively to other cases on collateral review.¹

Relying on the above precedent, Kitchell filed a petition for a writ of habeas corpus in the Jefferson County Circuit Court. The circuit court granted the petition on June 8, 2016, and vacated Kitchell’s sentence for capital murder. Kitchell’s case was remanded to the Saline County Circuit Court for resentencing.²

The resentencing trial was held on November 13-14, 2018. In a pretrial hearing, Kitchell requested that the circuit court not allow the jury to be informed that the proceeding was for resentencing or that he had previously received a life sentence for the capital murder. Kitchell asserted that this evidence was not relevant because it did not advance any material issue in the case. He further argued that it was more unfairly prejudicial than probative under Arkansas Rule of Evidence 403. He claimed that it would signal to the jury "that at some point he thought life was an appropriate sentence" and "that they should sentence him in accordance with that once again."

The prosecutor responded that this information was "definitely probative" with respect to the victim-impact evidence that would be presented. According to the prosecutor, the murder victim’s family would testify that they had experienced an extreme amount of anguish knowing that Kitchell would no longer be serving a life-without-parole sentence and that they had to undergo the stress of a resentencing trial.

The circuit court agreed with the prosecutor, stating that "in the spirit of being open with the jury and truthful with the jury I think they're gonna question why we are here on a 26-year-old case doing something again with it and I think they should be told the truth. And I think they're capable of handling the truth." The court granted Kitchell’s request for a continuing objection to any reference to resentencing or his previous life-without-parole sentence.

After further discussion about what the jury should be told regarding the procedural history and the vacated sentence, Kitchell emphasized the prejudice that would result to him from the victim-impact testimony about reopening the case. The prosecutor indicated she was concerned that the jury would not understand that a life sentence remained a sentencing option. The circuit court indicated that the rules of evidence were relaxed in the sentencing phase of the trial and stated that it would at least inform the jury that Kitchell had received a sentence that did not allow for the possibility of parole and that "[t]he United States Supreme Court has determined that that type of sentence is unconstitutional and that is why we're here today." The court noted that the jury would still understand from these statements that he had previously received a life sentence.

At the start of the jury-selection process, the circuit court informed potential jurors that

[t]his is a 1992 case. It is a case in which the Defendant, Mr. Kitchell, pled guilty to capital murder. As a result of the United States Supreme Court making a decision that a person under the age of 18 has to be sentenced in a way that he or she is eligible for parole, we are here today for resentencing. This is not a trial. It is a resentencing.

In addition, the State referenced Kitchell’s previous sentence in its opening statement:

Up until this time the Richardsons have had the satisfaction of knowing that Chad Kitchell would serve a life sentence without benefit of parole. Just recently the supreme court has said that a juvenile, someone under the age of 18, or 17, sentenced to a mandatory life term with no parole must have a jury reconsider their sentence and determine whether or not a life sentence is appropriate.

The victim’s family also testified as to how the procedural history of the case had adversely impacted them. Latrisha Barnett, the victim’s sister, stated that she had struggled with posttraumatic stress disorder, agoraphobia

, and depression since the murder. She stated that her condition eventually began to improve until Kitchell’s life-without-parole sentence was vacated. Barnett testified that she had felt some comfort in the fact that "justice was served and this was something that we can move on and heal from and just pick up the pieces and live." She indicated that it was difficult to go through the resentencing process and that her mental condition had again deteriorated. Robert Richardson, the victim’s father, also testified. He stated that he had derived some satisfaction from the fact that Kitchell had been sentenced to life without parole and that it was stressful after the Supreme Court’s ruling to be "reliving it just like it just happened again."

During closing argument, the State referred to this testimony by the victim’s family, stating that "[t]his family has been safe and secure in the knowledge that [Kitchell] was life without parole. Now, the law’s changed and they're now faced with a 30-year sentence being the maximum he can get." The State argued that the toll the process had taken on the family was "grueling" and that it was "almost cruel what they have to do to seek justice to make sure that their child did not lose her life in vain and that they do everything they can to make sure her killer is punished...."

After deliberation, the jury sentenced Kitchell to life, which will render him eligible for parole after thirty years under the new parole provisions of the FSMA. See Ark. Code Ann. § 16-93-621(a)(2)(A) (Supp. 2019). The amended sentencing order was entered on November 27, 2018, and Kitchell timely appealed.

On appeal, Kitchell argues that the circuit court erred by permitting the jury to be informed that he was previously sentenced to life imprisonment without parole.³ He contends that this evidence should have been excluded under Arkansas Rule of Evidence 403 and that he is entitled to a new sentencing hearing.

Arkansas Rule of Evidence 401 (2019) provides that all relevant evidence is admissible, except as otherwise provided by statute or rule, and evidence that is not relevant is not admissible. Relevant evidence is "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." Ark. R. Evid. 402. Pursuant to Rule 403, "evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Ark. R. Evid. 403.

The admission or rejection of evidence, as well as the balancing test mandated by Rule 403, is a matter within the sound discretion of the circuit court. Lard v. State , 2014 Ark. 1, 431 S.W.3d 249. We will not reverse absent a showing of a manifest abuse of discretion, as well as a demonstration of prejudice by the appellant. Collins v. State , 2019 Ark. 110, 571 S.W.3d 469. An abuse of discretion is a high threshold that does not simply require error in the circuit court’s decision but also requires that the circuit court act improvidently, thoughtlessly, or without due consideration. Id. We have held that an abuse of discretion may be established when the circuit court erroneously interprets or applies the law. Lowery v. State , 2019 Ark. 332, 586 S.W.3d 644.

While the rules of evidence still apply during the sentencing phase of a trial, certain evidence is relevant and admissible during sentencing that would not be admissible during the penalty phase of the trial. Shreck v. State , 2017 Ark. 39, 510 S.W.3d 750. Evidence relevant to sentencing may include prior convictions of the defendant, victim-impact evidence or statements, relevant character evidence, and evidence of...