Springs v. State, CR 06-221.

• Citation: 368 Ark. 256,244 S.W.3d 683
• Decision Date: 07 December 2006
• Docket Number: No. CR 06-221.,CR 06-221.
• Court: Supreme Court of Arkansas
• Parties: Thomas Leo SPRINGS, Appellant, v. STATE of Arkansas, Appellee.

244 S.W.3d 683

368 Ark. 256

Thomas Leo SPRINGS, Appellant, v. STATE of Arkansas, Appellee.

No. CR 06-221.

Supreme Court of Arkansas.

December 7, 2006.

W.H. Taylor and Stevan E. Vowell; Tonya L. Patrick, Fayetteville, AR, for appellant.

Mike Beebe, Att'y Gen., by: David R. Raupp, Sr. Ass't Att'y Gen., Little Rock, AR, for appellee.

DONALD L. CORBIN, Justice.

Appellant Thomas Leo Springs appeals the judgment and commitment order of the Sebastian County Circuit Court convicting him of one count of capital murder and two counts of aggravated assault. Appellant was sentenced to death on the count of capital murder and six years in prison and a $10,000 fine on each count of aggravated assault to run consecutively. On appeal, Appellant raises six arguments for reversal: the trial court (1) erred, as a matter of law, by failing to intervene and appoint a head-injury expert to examine him; (2) erred in submitting aggravating circumstances to the jury that were not warranted by the evidence; (3) erred in refusing to give Appellant's proffered instruction on mitigating circumstances and, instead, submitting Arkansas Model Criminal Instruction Form 2; (4) erred in admitting State's Exhibits 23 and 24 because that evidence was cumulative and its probative value was substantially outweighed by the danger of unfair prejudice; (5) erred when it allowed Appellant to be charged under Ark.Code Ann. § 5-10-101(Supp.2003) in violation of the Eighth Amendment to the United States Constitution and the Arkansas Constitution; (6) abused its discretion in admitting victim-impact evidence during Appellant's sentencing because, under Arkansas law, such evidence is irrelevant in capital-murder cases. As this case involves a sentence of death, jurisdiction is proper pursuant to Ark. Sup.Ct. R. 1-2(a)(2). We find no error and affirm.

Appellant does not challenge the sufficiency of the evidence. Accordingly, only a brief recitation of the facts is necessary. See, e.g., Armstrong v. State, 366 Ark. 105, 233 S.W.3d 627 (2006); Garcia v. State, 363 Ark. 319, 214 S.W.3d 260 (2005).

On January 21, 2005, Appellant rammed his car head-on into another car holding three individuals: his wife, Christina Springs; Mrs. Springs's sister, Kelly Repking; and Mrs. Repking's three-year-old daughter, Paige Garner. After the collision, Appellant exited his vehicle and smashed in the passenger-side window next to Mrs. Springs. After repeatedly bashing her face into the dashboard, he returned to his car and retrieved a knife. He then returned to the broken window and stabbed Mrs. Springs multiple times. Mrs. Springs died as a result.

Appellant was charged with capital murder, pursuant to section 5-10-101, and two counts of aggravated assault, pursuant to Ark.Code Ann. § 5-13-204 (Supp.2003).¹ Following a jury trial, Appellant was convicted of capital murder and both counts of aggravated assault. This appeal followed.

I. Failure to Intervene and Appoint a Head-Injury Expert

For his first argument on appeal, Appellant claims that the trial court erred, as a matter of law, by failing to intervene and appoint a head-injury expert to examine him. Prior to trial, Appellant filed a motion for appointment of an expert asking the trial court to authorize the appointment of an expert to examine him for a possible brain injury. The trial court denied Appellant's motion, stating that it was premature, but that he could renew his request subsequent to receipt and review of the previously ordered mental-health examination. Appellant argues that this was an error, as the issue of his brain injury was separate and distinct from the basic psychological assessment ordered by the trial court. Furthermore, Appellant argues that the psychological examination, the Forensic Evaluation Report, that was submitted to the trial court was inconsistent, and it made no mention of the brain-injury issue.

Appellant concedes that he did not move again for the appointment of an expert, nor did he make a contemporaneous objection to the admission of the report before the trial court. Nevertheless, he asserts that, under these circumstances, an exception, pursuant to Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980), should apply. According to Appellant, it was imperative that the trial court intervene and appoint the expert previously requested because the issue of his mental health as it related to his head injury was critical to the jury's consideration of whether he should be convicted of capital murder. Moreover, he argues that without having this expert appointed to examine him for a possible head injury, he was deprived of a "basic tool" of his defense.

It is well settled that a contemporaneous objection is required to preserve an issue for appeal, but this court has recognized four exceptions to the rule, known as the Wicks exceptions. See, e.g., Anderson v. State, 353 Ark. 384, 108 S.W.3d 592 (2003). These exceptions occur when (1) a trial court, in a death-penalty case, fails to bring to the jury's attention a matter essential to its consideration of the death penalty itself; (2) a trial court errs at a time when defense counsel has no knowledge of the error and thus no opportunity to object; (3) a trial court should intervene on its own motion to correct a serious error; and (4) the admission or exclusion of evidence affects a defendant's substantial rights. Calnan v. State, 310 Ark. 744, 841 S.W.2d 593 (1992). Here, Appellant is asking this court to apply the third Wicks exception.

In Wicks, we explained that the "third exception is a mere possibility, for it has not yet occurred in any case." 270 Ark. at 786, 606 S.W.2d at 369. The third exception is a narrow one and, since Wicks, it has rarely been applied. In McKenzie v. State, 362 Ark. 257, 208 S.W.3d 173 (2005), we reaffirmed the narrowness of the third exception:

Indeed, this court recently pointed out in Anderson, that the third Wicks exception has only been applied to cases in which a defendant's fundamental right to a trial by jury is at issue. The Anderson court further pointed out that the third Wicks exception "has not been applied to consider possible prosecutorial errors in relation to cross examination, to privileged testimony, or closing arguments[.]"

Id. at 277, 208 S.W.3d at 184 (citations omitted).

In the present case, Appellant is attempting to extend the third Wicks exception to cover his failure to renew his pretrial motion for the trial court to appoint an expert to examine him for a possible brain injury "that might impact his ability to control his emotions." This is simply not something that falls within the purview of the third exception. As pointed out in Anderson, the third Wicks exception applies when "the error is so flagrant and so highly prejudicial in character as to make it the duty of the court on its own motion to have instructed the jury correctly[.]" 353 Ark. at 395, 108 S.W.3d at 599.

Here, Appellant's argument is based upon something that occurred outside of the presence of the jury and is primarily based upon his claim that his mental-evaluation report contained a contradictory error. Specifically, Appellant asserts that the report contains the following contradictory and inconsistent statement:

It is my opinion that at the time of the alleged conduct, should the fact finder conclude that he committed the charged offenses, he did not have a mental disease or mental defect. He may have been depressed and distraught about his domestic situation and he may have been angry about the divorce and separation from his children. There was, however, no mental disease or mental defect, and there was disorder which could be defined as a substantial disorder of thought, mood, perception, orientation, or memory that grossly impairs judgment, behavior, and the capacity to recognize reality. [Emphasis added.]

The State counters that this statement merely contains a typographical error that can be reasonably fixed according to the ordinary principles of grammar and logic. Either way, this is not something that rises to a level of error that affected the very structure of Appellant's criminal trial, which would require the trial court to intervene.

Furthermore, this alleged error by the trial court did not deprive Appellant of a "basic tool" in his defense. Relying on Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), Appellant argues that the failure to have an expert appointed to examine him for a possible brain injury deprived him of a basic tool in his defense because such an expert must be available to assist in evaluating, preparing, and presenting his defense. This argument is flawed for two reasons.

First, Appellant has misapplied the Supreme Court's holding in Ake. There, the Court explained that the State "must take steps to assure that the defendant has a fair opportunity to present his defense." Id. at 76, 105 S.Ct. 1087. Relying on this principle, the Court held:

that when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense. This is not to say, of course, that the indigent defendant has a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own. Our concern is that the indigent defendant have access to a competent psychiatrist for the purpose we have discussed, and as in the case of the provision of counsel we leave to the State the decision on how to implement this right.

Id. at 83, 105 S.Ct. 1087.

Here, the trial court granted Appellant's motion for psychological examination and he was, in fact, examined by a psychologist. Paul Deyoub, Ph.D., interviewed and examined Appellant, and filed his Forensic Evaluation Report with the...