Plessy v. State

• Decision Date: 18 January 2012
• Docket Number: No. CA CR 11–814.,CA CR 11–814.
• Citation: 2012 Ark. App. 74,388 S.W.3d 509
• Parties: Quincy Jay PLESSY, Appellant v. STATE of Arkansas, Appellee.
• Court: Arkansas Court of Appeals

2012 Ark. App. 74

388 S.W.3d 509

Quincy Jay PLESSY, Appellant

v.STATE of Arkansas, Appellee.

No. CA CR 11–814.

Court of Appeals of Arkansas.

Jan. 18, 2012.

Coy Joe Rush Jr. and Mark J. Johnson, Paris, for appellant.

Dustin McDaniel, Atty. Gen., Brad Newman, Little Rock, for appellee.

WAYMOND M. BROWN, Judge.

[Ark. App. 1]This is an appeal from a Sebastian County jury trial finding the appellant, Quincy Jay Plessy, guilty of first-degree murder and committing a felony with a firearm. Plessy argues on appeal that there was insufficient evidence to support his conviction. He also contends that the trial court erred by allowing the prosecution to amend the criminal information on the eve of trial; by not granting his motion for a mistrial after prejudicial misconduct by the prosecution; by finding that statements by the victim were admissible as a dying declaration; and by allowing the introduction of prejudicial photographs of the victim's body over defense objection. We affirm on all points.

[Ark. App. 2]Factual Background

On November 30, 2009, Thomas Xavier Clayton was found by witnesses at an intersection in Fort Smith with multiple gunshot wounds after falling or being thrown from the back seat of a maroon four-door vehicle. Clayton was transported to St. Edward's Hospital, where he died less than an hour later. Appellant Quincy Jay Plessy was arrested on December 4, 2009, and was charged with one count of first-degree murder by information filed on December 8, 2009. On March 1, 2011, the State filed notice that it intended to amend the information to include an enhancement for use of a firearm during the commission of a felony, pursuant to Ark.Code Ann. § 16–90–120. The enhancement would allow up to fifteen additional years to be added to Plessy's sentence.¹ The amended information was filed on April 13, 2011.

Trial was held on April 18–20, 2011, and a jury convicted Plessy of first-degree murder and sentenced him to 360 months in the Arkansas Department of Correction with a consecutive five-year firearm enhancement, for a total sentence of 420 months. The judgment and commitment order was entered on April 21, 2011, and Plessy timely filed a notice of appeal.

[Ark. App. 3]Discussion

I. Sufficiency–of–the–Evidence Argument Not Preserved for Appeal

Plessy contends that the trial court erred in allowing a felony conviction because the testimony of his accomplice, Jamal Gibson, was not corroborated at trial,² and that there was therefore insufficient evidence to convict him of first-degree murder. Although Plessy has raised this as his last point of appeal, double-jeopardy considerations require us to review a challenge to the sufficiency of the evidence first.³ However, we are precluded from considering a sufficiency-of-the-evidence argument because it was not preserved for appeal. At the close of the State's case-in-chief, defense counsel for the appellant made this motion: “Also, move for a directed verdict in this case saying that the evidence does not rise to [a] sufficient level to take this case to the jury.” The court denied the motion. At the close of all evidence, counsel renewed the motion by stating, “I'd also like to move at this time for a directed verdict in this case, directed verdict of a [sic] acquittal.” The trial court again denied the motion.

Arkansas Rule of Criminal Procedure 33.1(a) (2011) requires that a motion for a directed verdict specify how the evidence is deficient.⁴ A party is bound by the scope and [Ark. App. 4]nature of his directed-verdict motion and cannot change the grounds on appeal.⁵ An appellant's failure to raise the issue of accomplice corroboration in his directed-verdict motion precludes appellate review of that issue.⁶ Because Plessy's directed-verdict motion did not specify any deficiency in the State's proof, we cannot consider his claim that the evidence at trial was insufficient to convict him.

II. Trial Court Did Not Err in Allowing Amendment of Information

Plessy argues that the trial court erroneously allowed the State to amend the information as to the first-degree-murder charge on the morning of trial. He contends that, although the State filed notice that the information would be amended to include a felony-firearm enhancement,⁷ the notice did not indicate that the underlying murder charge would be changed, and that such a change unfairly prejudiced him.

The initial information filed on December 8, 2009, listed the charge as murder in the first degree pursuant to Ark.Code Ann. § 5–10–102. The area of the information form allotted for a description of the charge alleged that Plessy

did unlawfully and feloniously and acting alone or with one (1) or more other persons, committed or attempted to commit a felony and in the course of and in furtherance of the felony or in immediate flight from the felony, the person or an accomplice caused the death of Thomas Xavier Clayton under circumstances manifesting extreme indifference to the value of human life, OR IN THE ALTERNATIVE, did unlawfully, feloniously, and with the purpose of causing the death of [Ark. App. 5]Thomas Xavier Clayton, they caused the death of Thomas Xavier Clayton against the peace and dignity of the State of Arkansas.

(Emphasis added.) On March 1, 2011, the State filed notice that it intended to amend the information to include a felony-firearm enhancement, but did not indicate any intent to amend the underlying charge of first-degree murder. At a hearing on April 8, 2011, ten days before trial, the court asked if the information had been amended. The prosecutor said that it had not, but that counsel for Plessy would be provided a copy of the amended information that day. Plessy claims on appeal that he moved for a continuance at that time, but the record does not bear this out. The relevant exchange between the circuit court, the prosecutor, and defense counsel at the pretrial hearing was as follows:

Court: Now the State has filed a motion to file a felony firearm enhancement and the information has been amended. Hasn't it, Mr. Wagoner?

Prosecutor: Well actually not yet, your Honor. I did fax notice. I will give a copy to Mr. Rush today.

Court: I will grant the State's motion in limine to exclude decedent's criminal record and that I do not think it would be relevant in this trial.

Defense Counsel: Thank you, your Honor, note my objection to this late motion. Based on that motion and the fact that I have not had a chance to look at it, research it, I would move for a continuance for the purpose of the record.

The amended information filed on April 13, 2011, again listed the underlying charge of murder in the first degree pursuant to Ark.Code Ann. § 5–10–102, and added a charge for felony with a firearm pursuant to Ark.Code Ann. § 16–90–120. In the area allotted for a description of the charge, the information set forth only the alternative charge from the original information, alleging that Plessy “did unlawfully and with the purpose of causing the [Ark. App. 6]death of Thomas Xavier Clayton ... caused the death of Thomas Xavier Clayton against the peace and dignity of the State of Arkansas.”

At the beginning of trial on April 18, 2011, as the court prepared to read the information to the jury, the prosecutor approached the bench and provided the court with a copy of the amended information. Counsel for Plessy objected to the timing of the amendment, but did not object to any particular change made. The prosecutor replied that the State had the right to amend the information before trial, and stated that the felony-firearm enhancement had been added pursuant to the written notice that was filed on March 1, 2011. The court denied Plessy's objection and the trial proceeded.

Plessy argues on appeal that the trial court erred in not granting his motion for a continuance made at the April 8, 2011 hearing. However, we are not persuaded that the motion referred to the State's notice to amend the information; rather, it immediately followed and appears to refer to the State's motion in limine regarding the victim's criminal record. At trial, Plessy objected that the amended information was filed “late in the case,” but did not mention a particular amendment or how it unfairly prejudiced him. The only amendment to the information discussed was the felony-firearm enhancement.

It is well settled that arguments not raised at trial will not be addressed for the first time on appeal.⁸ An appellant may not change the grounds for an objection on appeal, but is [Ark. App. 7]limited by the scope and nature of the objections and arguments presented at trial.⁹ Accordingly, Plessy's argument that the amended information prejudicially changed the nature of his murder charge is not preserved for appeal. Nevertheless, the argument Plessy did preserve—that the amended information was filed too late—will require us to address whether the amended information impermissibly changed the nature of the murder charge against him.

The State is entitled to amend the information at any time prior to the case being submitted to the jury as long as the amendment does not change the nature or degree of the offense charged.¹⁰ A comparison of the original information filed on December 8, 2009, and the amended information filed on April 13, 2011, shows that the original information includedthe charge of first-degree felony murder ¹¹ and, in the alternative, first-degree murder.¹² Because the charge Plessy was tried for was contained in the original information filed in 2009, we fail to see how he was unfairly surprised or otherwise prejudiced by the amended information and find no error in the trial court allowing the State to amend the information the week before trial.

[Ark. App. 8]III. Trial Court Did Not Err in Denying Motion for Mistrial

Roy Smith, a firefighter who was a first responder to the scene, testified that when he asked Thomas Clayton who shot him, Clayton responded, “Q.” Smith then confirmed with Brad...