Thompson v. State, CR–13–438

• Decision Date: 18 June 2015
• Docket Number: No. CR–13–438,CR–13–438
• Parties: Edward THOMPSON III, Appellant v. STATE of Arkansas, Appellee
• Court: Arkansas Supreme Court

548 S.W.3d 129

Edward THOMPSON III, Appellant

v.STATE of Arkansas, Appellee

No. CR–13–438

Supreme Court of Arkansas.

Opinion Delivered June 18, 2015

Benca & Benca, Little Rock, by: Patrick J. Benca, for appellant.

Dustin McDaniel, Att'y Gen., by: Jake H. Jones, Ass't Att'y Gen., for appellee.

PAUL E. DANIELSON, Associate Justice

Appellant Edward Thompson III appeals his convictions and sentences for one count each of first-degree murder, aggravated robbery, felony theft, and misdemeanor theft. He was sentenced, respectively, to life imprisonment, fifty years' imprisonment, and forty years' imprisonment in the Arkansas Department of Correction, to be served concurrently to a term of one year in the county jail. Thompson raises two arguments on appeal: (1) that the circuit court erred in denying his motion to suppress identification and (2) that the circuit court erred in failing to conduct a hearing following an ex parte communication with a juror. Because Thompson was sentenced to life imprisonment, our jurisdiction is pursuant to Arkansas Supreme Court Rule 1–2(a)(2) (2014). We affirm in part and reverse and remand in part.

Because Thompson does not challenge the sufficiency of the evidence against him, a brief recitation of the facts will suffice. During the early morning hours of December 24, 2011, brothers Tyler Ratley and Keye Ratley were leaving the Triniti Nightclub in Little Rock. Tyler, who was a short distance behind Keye, was attacked by two assailants who attempted to rob him. When Keye realized his brother was in trouble he ran to help, and the assailants began to flee. As Keye chased after the men, one of them turned around and fired a shot from a handgun. The bullet struck Keye in the stomach and he later died.

In the course of investigating the murder and robbery, Little Rock police learned of a possible connection between those two crimes and the theft of a car from a nearby neighborhood. Through this connection, police developed Thompson as a suspect in the robbery and murder. Thompson was later arrested after Tyler, while looking at a photographic lineup, identified Thompson as one of the men who had killed his brother.

Thompson was charged by felony information with one count each of capital-felony murder, aggravated robbery, possession of a firearm by certain persons, theft of property, and theft by receiving. Thompson moved to sever the firearm charge, and the court granted that motion. Immediately prior to trial, the State announced that, while it was not amending the information, it was going to proceed with a misdemeanor count of theft in lieu of the felony theft-by-receiving charge.

The case proceeded to trial and, following the presentation of evidence, the jury was instructed on capital-felony murder, first-degree-felony murder, aggravated robbery and its lesser-included offense of robbery, as well as theft. Thompson was convicted and sentenced as set forth above. A timely record was lodged in this court, and counsel was appointed to represent Thompson. Thompson's counsel then filed a motion to withdraw and a brief asserting that there were no meritorious issues for an appeal pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Because counsel failed to comply with the requirements of Anders and Arkansas Supreme Court Rule 4–3(k), despite several rebriefing orders, this court removed him and appointed new counsel, see Thompson v. State , 2014 Ark. 435, 2014 WL 9869003 (per curiam), who has filed the instant appeal raising the aforementioned points.

As his first point on appeal, Thompson argues that the circuit court erred in denying his motion to suppress an out-of-court identification made pursuant to a photographic lineup. Thompson argues that the photographic lineup was unduly suggestive because the witness was shown two different lineups, and Thompson was the only person whose photo appeared in both of those lineups. In advancing this argument, Thompson acknowledges that there is a question whether this issue is preserved for appellate review, but concludes that this court may consider his argument on his appeal pursuant to the fourth exception in Wicks v. State , 270 Ark. 781, 606 S.W.2d 366 (1980). The State counters that this argument is not preserved for review because Thompson failed to object to the witness's in-court identification of him and that the Wicks exception does not apply.

As a general rule, an appellant has the burden to prove that a pretrial identification was suspect. Hayes v. State , 311 Ark. 645, 846 S.W.2d 182 (1993). Even if a photographic lineup process is suggestive, the trial court may determine that, under the totality of the circumstances, the identification was sufficiently reliable. Fields v. State , 349 Ark. 122, 76 S.W.3d 868 (2002). This court will not reverse a trial court's ruling on the admissibility of an identification unless it is clearly erroneous. Chism v. State , 312 Ark. 559, 853 S.W.2d 255 (1993). Nevertheless, an objection to a pretrial photographic identification is not preserved unless there is a contemporaneous objection to the witness's in-court identification at trial. Id.

The identification at issue in the instant case was made by Tyler, who identified Thompson as one of the men who had attacked him and shot his brother. Almost a month after the robbery and murder, police asked Tyler to review a photographic lineup to see if he could identify any of the assailants. After reviewing the photographs, Tyler was unable to identify the assailant. About an hour after he left the police station, an officer called Tyler and asked if he could come back and look at a second photographic lineup. In this second lineup, the officer included a picture that more closely resembled Thompson at the time of the crimes. This time Tyler identified Thompson as one of the men who had attacked him and shot his brother outside the nightclub.

Prior to trial, Thompson challenged the admissibility of the out-of-court photographic identification made by Tyler, arguing that it violated the Fourteenth Amendment to the United States Constitution because it was unduly suggestive and lacked reliability. He asked that both the out-of-court identification and any in-court identification be suppressed, but the circuit court denied the motion. Thompson renewed his motion to suppress just prior to the beginning of the trial, and the circuit court again denied it. But, during the trial, Thompson did not object when the State introduced the photographic lineup, nor did he object when Tyler made an in-court identification.

In Sweet v. State , 2011 Ark. 20, 370 S.W.3d 510, this court held that a challenge to an out-of-court photographic identification was not preserved for review when, despite challenging the photo identification prior to trial, the appellant failed to object to the victim's in-court identification. See also Ellis v. State , 364 Ark. 538, 222 S.W.3d 192 (2006). In Ellis , as here, the defendant made a motion to suppress the photo identification, which was denied during a pretrial hearing. However, because Ellis did not object to the in-court identification at trial, this court found that the argument was procedurally barred. Id. Accordingly, Thompson, like the appellants in Sweet and Ellis , failed to preserve this argument for appeal.

Before leaving this point, it must be noted that Thompson argues that if his failure to object to the in-court identification impacts his argument on appeal, then this court should still address the merits of his argument under the fourth exception set forth in Wicks , 270 Ark. 781, 606 S.W.2d 366. In Wicks , this court noted that some jurisdictions, particularly the federal courts, conduct plain-error review, but held that in Arkansas an argument for reversal will not be considered in the absence of an appropriate objection. However, the Wicks court recognized four exceptions to the basic requirement of an objection in the trial court, noting that they were "so rare that they may be reviewed quickly." Id. at 785, 606 S.W.2d at 369. The fourth exception, now relied on by Thompson, was explained as follows:

A fourth possible exception might arguably be asserted on the basis of Uniform Evidence Rule 103(d) : "Nothing in this rule precludes taking notice of errors affecting substantial rights although they were not brought to the attention of the court." Ark. Stat. Ann. § 28–1001 (Repl. 1979) [now Ark. R. Evid. 103(d) ]. That statement, however, is negative, not imposing an affirmative duty, and at most applies only to a ruling which admits or excludes evidence.

Id. at 787, 606 S.W.2d at 370.

Although this issue involves the review of an evidentiary decision, we decline to apply the fourth Wicks exception based on the facts of this case. This court has refused to expand the narrowly defined exceptions outlined in Wicks when an appellant simply failed to make a proper, contemporaneous objection at trial. See Alexander v. State , 335 Ark. 131, 983 S.W.2d 110 (1998). Here, Thompson objected to the photographic lineup prior to trial but did not renew that objection at trial. Nor did he object to the in-court identification. There is no reason that he could not have objected at trial and his failure to do so simply does not warrant this court applying the narrow Wicks exception.

Thompson's second point on appeal is that the circuit court erred in failing to conduct a hearing following an ex parte communication with a juror. In this vein, Thompson, citing to the Supreme Court's decision in Rushen v. Spain , 464 U.S. 114, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983), asserts that the circuit court should have disclosed the communication to counsel, and when the court failed to do so, it should have held a hearing to determine any prejudicial effect of failing to disclose the communication. Without any citation to authority, Thompson asserts that "[b]ecause any constitutional effects of this ex parte communication...