Sasser v. State

• Decision Date: 17 July 1995
• Docket Number: No. CR,CR
• Parties: Andrew SASSER, Appellant, v. STATE of Arkansas, Appellee. 94-933.
• Court: Arkansas Supreme Court

Page 773

902 S.W.2d 773

321 Ark. 438

Andrew SASSER, Appellant, v. STATE of Arkansas, Appellee.

No. CR 94-933.

Supreme Court of Arkansas.

July 17, 1995.

[321 Ark. 439] Charles A. Potter, Texarkana, for appellant.

J. Brent Standridge, Asst. Atty. Gen., Little Rock, for appellee.

CORBIN, Justice.

Appellant, Andrew Sasser, appeals the judgment and commitment order of the Miller County Circuit Court filed May 4, 1994 convicting him of capital felony murder, Ark.Code Ann. § 5-10-101 (Repl.1993), and sentencing him to death by lethal injection. For his sole point of appeal, appellant argues the admission of certain testimony regarding prior crimes committed by him was reversible error because the trial court abused its discretion in determining the probative value of the evidence exceeded its prejudicial effect. A.R.E. Rule 403. The trial court admitted the testimony pursuant to A.R.E. Rule 404(b) ¹ as proof of appellant's modus operandi and intent. We find no merit to appellant's argument and affirm.

BACKGROUND FACTS

The state charged appellant with capital felony murder for causing the death of Ms Jo Ann Kennedy, on or about July 12, 1993, in the course of or in immediate flight from his commission or attempt to commit the victim's rape or kidnapping under circumstances manifesting extreme indifference to the value of human life. At the time of her death, the victim was working alone as the store clerk at the E-Z Mart in Garland (also referred to in the record as "Garland City"). The autopsy report showed the victim died of multiple stab and cutting wounds and blunt force head injuries, and that no anal or vaginal injury or any spermatozoa were present.

Following voir dire and immediately preceding the trial's commencement, the state announced, in camera, that it intended to offer evidence of prior crimes committed by appellant in 1988 at an E-Z Mart in Lewisville against its store clerk, Ms. Jackie Carter, for which he was convicted of second degree battery, kidnapping and rape. The state relied upon Rule 404(b) and this court's decision reported as Thrash v. State, 291 Ark. 575, 726 S.W.2d 283 (1987) ², and offered the evidence to prove appellant's modus operandi and intent. The state enumerated several points of similarity between the circumstances of the present crime and the 1988 crimes. Appellant objected, arguing "one previous crime does not a pattern make" and that the evidence had no probative value, only prejudicial effect. The trial court held Thrash was controlling, found the proposed testimony to be "more--than prejudicial," and ruled it admissible.

At the jury trial, appellant's guilty plea was not accepted by the trial court due to the state's refusal to waive the death penalty. At the trial's commencement, appellant stipulated that he caused the death of the victim while in the possession of and while driving his brother's pickup truck. Other stipulated facts included: appellant stopped at the E-Z Mart in Garland City two or three times to buy chips and to use the telephone between the hours of 3:00 p.m. on July 11, 1993 and approximately 12:00 a.m. on July 12, 1993; the victim was discovered nude from the waist down; and the pants and panties found in the E-Z Mart's men's bathroom were hers.

The state's first witness at trial, Jeanice Pree, testified she and her mother, Gloria Jean Williams, lived across the street from the Garland City E-Z Mart. Pree testified she had an unobstructed view of the store. Pree testified she also worked at the E-Z Mart and believed its front door was locked at 12:00 midnight and thereafter customers were required to use a drive-through window. Pree testified she was sitting on her couch watching television when she looked out her window, saw the victim and a man behind the store counter and assumed he was a friend of the victim. Pree testified she looked back and saw the victim and the man coming to the store's front door. Pree testified she could tell the victim was being forced to come out because it looked like her hands were behind her back. Pree testified she telephoned 911. The police dispatcher testified he received Pree's 911 telephone call at approximately 12:46 a.m. on July 12, 1993, and that she stated "there was a woman that she believed was being killed at the E-Z Mart, being drug through the window."

Williams testified she watched the E-Z Mart from the window in her house while her daughter (Pree) telephoned 911. Williams testified she saw a truck leave the store, and then the victim "came around from the side of the E-Z Mart. She reached for the door and she just collapsed, right there."

Miller County Sheriff's Deputy Jim Nicholas testified the victim was found lying just outside the E-Z Mart door on the sidewalk, and appeared to be dead. Nicholas testified the victim was nude from the waist down, and what appeared to be her panties and pants were located in the men's restroom of the store. Nicholas testified one of the victim's shoes was in the front aisle and one behind the counter, and a large wad of hair was found behind the cash register near the drive-through window. Nicholas testified blood spatters were observed at the drive-through window, on the store's "outside aisles," counter, and on the men's bathroom wall. Nicholas testified the drive-through window was open. Numerous items of physical evidence and photographs were introduced into evidence through the testimony of Nicholas and Miller County Sheriff's Department Investigator Toby Giles, including a photograph of the drive-through window and cash register area showing two plastic containers of nachos.

Arkansas State Police Investigator Robert Neal testified he and Miller County Sheriff H.L. Phillips interrogated appellant at the Lafayette County Sheriff's Office in Lewisville for approximately two hours beginning around 7:45 p.m., on July 12, 1993. Appellant's tape recorded statement and a transcript of the same were introduced at trial and provided as follows. Appellant stated he drove up to the window at the Garland City E-Z Mart and ordered nachos from the victim. He described the victim as a "lady ... [who] had an attitude" and was angry because someone else had ordered nachos, then failed to pick up the order. Appellant stated the victim tried to sell him two orders of nachos, but he declined. Appellant stated they argued and the victim slammed the drive-through window on his hand. Appellant stated he jerked the window open whereupon the victim cut him with a knife-like object with a blade. Appellant stated he grabbed the victim and she jerked him through the drive-through window. Appellant stated they scuffled, moving from the drive-through window area, down the counter area, out into the store's interior, back to the store office at the rear of the store, and up to the potato chip rack at the front of the store. Appellant stated the victim opened the store's front door, they exited the store and the victim followed him to his pickup truck, still fighting. Appellant stated he entered the vehicle and left.

Appellant stated he did not recall going into the E-Z Mart's restrooms but that he "had to go back there." Appellant stated the victim repeatedly hit him with her fists while they scuffled. Appellant stated he wrested the victim's knife-like object from her and used it to hit her, finally dropping the object near the pickup truck. Appellant stated he did not know why the victim's clothes were removed. When asked whether he did not remove the victim's clothes or did not remember doing so, he replied: "No sir." Appellant stated he did not try to rape the victim or to rob her.

The state's final witness, Ms. Carter, testified appellant attacked and raped her on April 22, 1988 at the E-Z Mart Store in Lewisville. Carter testified she was the only employee on duty when appellant entered the store at approximately 1:00 a.m. and purchased cigarettes, returned fifteen minutes later and purchased a soft drink, then returned five minutes later, asked to use the telephone and stated he had had a wreck on his motorcycle. Carter testified appellant then stood in the store after stating he was waiting on his wife to pick him up. Carter testified that, at approximately 1:35 a.m., a truck drove up and appellant went outside to talk to its occupants. Carter testified she moved from behind the cash register and began putting up items in the freezer when appellant approached her from behind and hit her on the back of the head with a soft drink bottle. Carter testified she and appellant struggled and he continued to hit her, then forced her to a utility/bathroom located at the back of the store. Carter testified another man approached and appellant decided to take her out of the store. Carter testified appellant forced her out of the store, picked up his bicycle, and pushed Carter and the bicycle into an alley. Carter testified that, when the other man drove by, appellant forced her across the street, told her to pull down her clothes, pulled down his own clothes, and raped her. Carter testified appellant then told her he should not have done it and should kill her whereupon she begged him not to and agreed to say a truck had dropped her off and appellant had found her. Carter testified appellant forced her back to the store where the police were waiting. Carter testified that, when she gained the opportunity to speak privately to a policeman, she identified appellant as her attacker.

The state then rested and the defense presented no evidence. The jury returned a verdict of guilty; the verdict did not identify the predicate offense or offenses the jury found as a required element of the crime of capital felony murder. The state then introduced, for the jury's consideration in the sentencing phase, a certified copy of appellant's 1988 convictions for Carter's second degree battery, kidnapping and rape. The jury found one aggravating circumstance: that appellant had...