Nance v. State

Decision Date04 March 1996
Docket NumberNo. CR,CR
PartiesEric Randall NANCE, Appellant, v. STATE of Arkansas, Appellee. 94-413.
CourtArkansas Supreme Court

Larry W. Horton & Phyllis J. Lemons, Malvern, for Appellant.

Kelly K. Hill, Pamela Rumpz, Asst. Attys. General, Little Rock, for Appellee.

CORBIN, Justice.

Appellant, Eric Randall Nance, appeals the amended judgment of the Hot Spring County Circuit Court entered on April 11, 1994, convicting him of one count of capital murder. See Nance v. State, 319 Ark. 292, 891 S.W.2d 28 (1995) (per curiam) (granting motion for rule on the clerk and finding timely notice of appeal from amended judgment); Nance v. State, 318 Ark. 758, 891 S.W.2d 26 (1994) (per curiam) (denying motion for rule on the clerk). Appellant was tried by a jury and sentenced to death by lethal injection. Jurisdiction is properly in this court pursuant to Ark.Sup.Ct.R. 1-2(a)(2). Appellant raises ten points for reversal. We find no error and affirm the trial court's judgment.

Appellant was charged by information, as amended, with capital murder by premeditated and deliberated purpose, Ark.Code Ann. § 5-10-101(a)(4) (Repl.1993), or, in the alternative, with capital murder by felony murder, Ark.Code Ann. § 5-10-101(a)(1) (Repl.1993). The underlying felonies charged were rape, attempted rape, kidnapping, and attempted kidnapping. The sole underlying felony with respect to which the jury was instructed, however, was attempted rape. The jury returned a verdict of guilty of capital felony murder.

The charges arose from the following events. On October 11, 1993, the vehicle of the victim, Julie Heath, was reported abandoned on Highway 270, west of Malvern near Interstate 30. On October 18, 1993, the victim's body was discovered on rural property just south of Highway 171 approximately 7.5 miles from the location where the victim's vehicle was found. The medical examiner, Dr. Frank Peretti, testified that it was likely that there was trauma to the skull and neck region of the victim's body, based on the accelerated skeletonization and evidence of insect activity in that area as compared with the relatively intact remainder of the body. Although the autopsy failed to reveal the cause or manner of death, Dr. Peretti could not rule out death by knife wound and testified that examination of the victim's shirt showed defects consistent with a cutting wound.

At trial, appellant's brother, Vernon Nance, and appellant's sister, Belinda Christopher, testified that, after initially denying any involvement in the crime, appellant later stated that he had accidentally killed the victim. Vernon Nance testified that appellant stated that he gave the victim a ride into Malvern because her automobile had broken down on the road, that the victim saw his work knife slide out of his pocket as they drove, that the victim asked him to put the knife away, that, as he moved to put the knife in the glove compartment, the victim turned sideways in the seat and started kicking him, that he put his hand up to keep her from kicking and hitting him, and that the knife fatally lodged in her throat. Appellant made a similar statement to his sister.

Throughout his brief, appellant asserts the denial of his constitutional rights by means of merely conclusory allegations without supporting authority. In such circumstances, we decline to consider his constitutional arguments. Rucker v. State, 320 Ark. 643, 899 S.W.2d 447 (1995).

1. Motion for directed verdict

We first consider appellant's argument that the trial court erred in denying his motion for a directed verdict on the ground that insufficient proof was introduced of the underlying felony, attempted rape. Our standard of review is as follows:

In a challenge to the sufficiency of the evidence, this court reviews the evidence in the light most favorable to the State and sustains the judgment of conviction if there is substantial evidence to support it. Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. In reviewing the sufficiency of the evidence, we need only consider evidence in support of the conviction.

Pike v. State, 323 Ark. 56, 60, 912 S.W.2d 431, 433 (1996) (citations omitted) (quoting Mills v. State, 322 Ark. 647, 910 S.W.2d 682 (1995)). Circumstantial evidence constitutes substantial evidence when every other reasonable hypothesis consistent with innocence is excluded. Id.

We find that the circumstantial evidence of attempted rape is substantial. Some of this evidence includes:

(1) Opinion testimony of criminalist Donald E. Smith that blood, head and pubic hairs recovered from appellant's vehicle belonged to the victim, and that hairs recovered from the victim's clothing belonged to appellant;

(2) Opinion testimony of forensic serologist Kermit Channell that, based on his tests, he could neither confirm nor deny that sexual intercourse had occurred, that the exposure of the victim's body to the weather could account for lack of some evidence, and that enzyme-characteristic analysis showed blood recovered from appellant's vehicle was consistent with the victim;

(3) Opinion testimony of forensic scientist Richard Guererri that DNA analysis of the victim's muscle tissue was consistent with blood recovered from appellant's truck seat and from the victim's shirt pad;

(4) Testimony of Dr. Peretti that the victim's brassiere was pulled up around the neck and shoulder area, her socks and panties were inside out, her pants were partially zipped, and her shirt was inside out;

(5) Testimonies of two workers at a convenience store located in Malvern near the interstate, Tina Loy and Christy Sims, that appellant entered the store at approximately 12:30 a.m. on October 12, 1993, appeared to be hot and was wearing bib overalls with dark stains on the front that appeared fresh, and wore no shirt, shoes or socks;

(6) Testimony of appellant's girlfriend, Christy Jones, that appellant left her house in Hot Springs at approximately 9:30 p.m. on October 11, 1993, wearing overalls and a tee shirt; and

(7) Testimony of Sheriff's Officer Kirk McClenahan that the victim's body was discovered with the shirt turned inside out with one shoulder pad on the outside.

2. Record of probable-cause proceeding

On October 22, 1993, the state filed a motion to determine whether probable cause existed to charge appellant with the crime. The motion recites that appellant was arrested for the crime by the Hot Spring County Sheriff's Department on October 20, 1993, had been in the sheriff's custody since arrest, and that "probable cause time" would expire on October 22, 1993, unless probable cause to charge was found.

Arkansas Rule of Criminal Procedure 4.1(e) provides that a person arrested without a warrant shall not be held in custody unless a judicial officer determines from an affidavit, recorded testimony, or other information, that there is reasonable cause to believe that the person committed an offense. Rule 4.1(e) further provides that the judicial determination shall be made within forty-eight hours of the time of arrest, except in extraordinary circumstances, and may be made at the first appearance of the arrested person pursuant to Ark.R.Crim.P. 8.1. See also Ark.R.Crim.P. 8.3(c). These rules protect the federal constitutional right of a person to a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest. Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). At this preliminary stage, the state is required to present proof that justifies the accused's arrest, not to establish the accused's guilt.

In this case, the circuit court docket for October 22, 1993, states:

Informal probable cause hearing--Based on affidavit probable cause for charge of capital murder found--Bond set at $1,000,000.00--P. Lemons appointed--Hearing set for October for plea and arraignment--

On October 22, 1993, the state filed the "Information With Affidavit" charging appellant with the victim's capital murder, together with the supporting "Affidavit And Statement Of Probable Cause" of Lieutenant Doug Williams of the Arkansas State Police. Lieutenant Williams's affidavit, dated October 22, 1993, recites that it is made for the purpose of obtaining an arrest warrant for appellant and charging him with the crime. A bench warrant for appellant was issued, served and filed on October 22, 1993.

Appellant argues that the trial court erred in denying his request that a "record" be made of the probable-cause proceeding, and that, as an indigent, the federal constitutional due-process guarantee absolutely entitled him to a "record." We understand this argument to be a request for a verbatim transcription of the probable-cause proceeding. This argument is meritless.

Our Rule 4.1(e) provided that the judicial determination of probable cause at the October 22 proceeding could be made from affidavit, recorded testimony, or other information. The state chose the affidavit method. Lieutenant Williams's October 22 affidavit, which was the basis for the judicial determination of probable cause, and the bench warrant are a part of the record on appeal. On these facts, we determine that appellant was not constitutionally entitled to a verbatim transcription of the probable-cause proceeding. Lieutenant Williams's October 22 affidavit and the bench warrant, which are included in the record on appeal, satisfied appellant's constitutional requirements to due process at this most preliminary stage of the criminal proceedings.

3(A). Demurrer

At the October 26, 1993 hearing for plea and arraignment, appellant demurred to the felony information on the ground that it failed "to state probable cause." The trial court stated that the ...

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