Thomas v. State
| Decision Date | 17 May 2007 |
| Docket Number | No. CR 06-439.,CR 06-439. |
| Parties | Mickey David THOMAS, Appellant, v. STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
Janice Vaughn and Teri Chambers, Arkansas Public Defender Commission, for appellant.
Mike Beebe, Att'y Gen., by: David R. Raupp, Sr. Ass't Att'y Gen., and Kent G. Holt, Ass't Att'y Gen., for appellee.
Appellant, Mickey David Thomas, appeals his conviction of two counts of capital murder of Mona Shelton and Donna Cary. For each count a Pike County jury returned a sentence of death. We affirm the jury's verdict.
On June 14, 2005, DeQueen Police found the bodies of two women at Cornerstone Monument Company after receiving a call about a possible break in. Mona Shelton, the owner of the company, had been beaten and shot once in the head. Donna Cary, a customer, had been shot once in the head at close range. Police received a report of a black male with a white bag walking away from the front of Cornerstone Monument Company and getting into a pewter or copper-colored Ford Mustang with an Oklahoma license plate. Police broadcast this description to area law enforcement officers, and at 11:27 a.m., Trooper Jamie Gravier of the Arkansas State Police spotted the Mustang traveling west near the Oklahoma-Arkansas border. Gravier attempted to stop the vehicle, and a high-speed chase ensued into Broken Bow, Oklahoma.
Oklahoma police ultimately located the vehicle parked behind the Broken Bow residence of Hazel Thomas, Appellant's mother, but the driver had already left the area. That same afternoon, police received a report that a black male with a gun had just stolen a Broken Bow resident's Mercury Cougar. The Oklahoma authorities spotted the vehicle, and they were able to apprehend Appellant.
Appellant waived extradition to Arkansas and was charged in Sevier County with two counts of capital murder in the deaths of Mona Shelton and Donna Cary. The case was transferred to Pike County where Appellant was convicted of two counts of capital murder and was given a sentence of death for each count. Appellant now brings his appeal.
For his first point on appeal, Appellant argues that the trial court erred by transferring his trial to a county with a substantially smaller population of persons of Appellant's race. Appellant filed a motion for change of venue alleging that "[t]his case has been highly publicized to the extent that the mind of the inhabitants of Sevier County are so prejudiced against the Defendant that a fair and impartial trial cannot be had in this county." The trial court granted Appellant's motion for change of venue, and transferred the case to Pike County. On appeal, Appellant argues that the trial court "deliberately chose to send this case to a district in which whites were overwhelmingly over-represented, and blacks virtually non-existent," and that the trial court gave absolutely no explanation for the transfer to Pike County.
In response, the State argues that Appellant did not preserve this argument because the petition for change of venue only asked for a transfer because the case was highly publicized; specifically, the State contends that the trial court's granting of Appellant's motion precludes Appellant from raising this issue on appeal. The State also asserts that "while the Appellant complains that the trial court moved venue in the case `without explanation,' it was the Appellant's responsibility in obtaining a ruling, i.e., an explanation that would have preserved his objection." Alternatively, the State argues that the trial court's decision to move the venue of the trial to Pike County was not an abuse of discretion.
We first address the issue of whether Appellant's argument is preserved. We have precluded Appellants from raising arguments on appeal that were not first brought to the attention of the trial court. Callaway v. State, 368 Ark. 412, 246 S.W.3d 889 (2007) (citing Marta v. State, 336 Ark. 67, 80, 983 S.W.2d 924, 931 (1999); Burris v. State, 330 Ark. 66, 954 S.W.2d 209 (1997); McGhee v. State, 330 Ark. 38, 954 S.W.2d 206 (1997)). We have extended this preclusion to include constitutional arguments. Our law is well settled that issues raised for the first time on appeal, even constitutional ones, will not be considered because the trial court never had the opportunity to rule on them. Id. (citing London v. State, 354 Ark. 313, 320, 125 S.W.3d 813, 817 (2003)). We have repeatedly held that an Appellant is limited by the scope and nature of the arguments and objections presented at trial, and may not change the grounds for objection on appeal. Id. See also Cox v. Miller, 363 Ark. 54, 210 S.W.3d 842 (2005); City of Fort Smith v. Didicom Towers, Inc., 362 Ark. 469, 209 S.W.3d 344 (2005); Barnes v. Everett, 351 Ark. 479, 495, 95 S.W.3d 740, 750 (2003).
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. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). See also Springs v. State, 368 Ark. 256, 244 S.W.3d 683 (2006); 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. Id.
In the present case, Appellant, in his motion for change of venue, asked the trial court to transfer the case out of Sevier County because of the publicity surrounding the case. At the July 21, 2005, hearing on the motion for change of venue, Appellant presented voluminous evidence of pretrial publicity. Appellant also presented the census 2000 Data Tables for Population Percent by Race and County. Appellant stated he was hesitant in asking the court to send his case to Pike County because, according to the census tables, only 3.5% of Pike County's population was black. However, Appellant failed to mention any of the constitutional arguments he now raises in this point on appeal, such as systematic exclusion of specific racial groups, violation of the Fourteenth and Sixteenth Amendments, or a Batson challenge. Therefore, it is clear that Appellant failed to make a sufficient record that would support a finding that the trial court erred in transferring the case to Pike County.
Appellant also argues that the trial court transferred his case to Pike County "without explanation." Failure to obtain a ruling on an issue at the trial court level, including a constitutional issue, precludes review on appeal, and we must therefore decline to address such an issue. Fisher v. State, 364 Ark. 216, 217 S.W.3d 117 (2005); Huddleston v. State, 347 Ark. 226, 61 S.W.3d 163 (2001) (per curiam). It was Appellant's responsibility in this case to obtain an explanation of why the case was transferred to Pike County, and he has failed to do so on appeal. Moreover, Appellant's argument that the trial court erred in transferring his case to Pike County does not fall under any of the Wicks exceptions. Because Appellant failed to preserve this argument and because there is no Wicks exception, we do not reach the merits on this point.
For his second point on appeal, Appellant argues that the trial court abused its discretion by failing to enhance the prospective jury pool pursuant to Ark. Code Ann. § 16-32-301 and Ark.Code Ann. § 16-32-303 (Supp.2005). Appellant again asserts that the trial court's selection of Pike County deprives him of his Sixth and Fourteenth Amendment Constitutional rights in connection with the selection of a jury panel. Appellant repeats his argument that the trial court deliberately and purposefully transferred this case to a county with virtually no non-white residents. The State responds, arguing that Appellant has failed to preserve an objection to the use of voter registration in the jury selection process by failing to establish any of the requirements set out in Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979).
Arkansas Code Annotated § 16-32-301 allows for jury pool expansion and states:
(a) The pool of names from which prospective jurors are chosen may be expanded from the list of registered voters to include the list of licensed drivers and persons issued an identification card under § 27-16-805.
(b) The qualifications for serving on a jury under § 16-31-101 and the disqualifications under § 16-31-102 shall apply to the enhanced prospective juror pool permitted under subsection (a) of this section.
Id. Ark.Code Ann. § 16-32-303 allows the administrative circuit judge for each county to determine whether to use the list of registered voters or the enhanced list. Section 16-32-303 states:
(a) The administrative circuit judge for each county shall determine that either the list of registered voters or the enhanced list, but not both, shall be utilized in the selection of all prospective jurors for all circuit court divisions within the county, based upon a consideration of whether the use of registered voters creates a sufficient pool for the selection of jurors to offer an adequate cross section of the community.
(b) If the judge determines that the enhanced prospective juror list, as described in § 16-32-302, should be used by the county, then the judge on or before October 1 shall inform the circuit clerk who shall notify the Secretary of State and the Administrative Office of the Courts that the enhanced list will be requested for the county.
In the present case, in a memo dated September 14, 2004, Judge Charles Yeargan and Judge Ted...
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