Thompson v. State , 2015 Ark. LEXIS 476 ( 2015 )

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SUPREME COURT OF ARKANSAS
No. CR-13-438
EDWARD THOMPSON III Opinion Delivered June 18, 2015
APPELLANT
APPEAL FROM THE PULASKI
V. COUNTY CIRCUIT COURT
[NO. 60CR-12-749]
STATE OF ARKANSAS HONORABLE BARRY SIMS, JUDGE
APPELLEE
AFFIRMED IN PART; REVERSED
AND REMANDED IN PART.
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
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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,
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386 U.S. 738 (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 (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
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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
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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.
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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 (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 were not mitigated through a post-trial
hearing, the Appellant’s convictions should be reversed.” Again, recognizing that there was
no objection made below, Thompson asserts that this court should nonetheless address this
argument because the second Wicks exception applies.
The State counters that this issue is not preserved for review because Thompson never
objected to the ex parte communication. Moreover, the State asserts that it is not clear from
the record whether Thompson and his attorney were present when the communication
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between the circuit judge and the juror took place and that it is Thompson’s burden to bring
forth a record that demonstrates error.
The ex parte communication referenced by Thompson arose as follows. At the close
of evidence, the circuit judge announced that he was recessing court for the day. He
reminded jurors not to discuss the case and confirmed with the attorneys the start time for the
next day. The record then reflects the following:
PROSPECTIVE JUROR TWELVE: Your Honor, can I approach? I just need to
ask a question about it. No?
THE COURT: No. Is it, well, hold on. Wait, don’t go anywhere. Everybody
else leave. You-all want to approach, him to approach and ask something? Or, I
mean, I would just as soon - - if it’s something I can answer, I will. How about that?
PROSPECTIVE JUROR TWELVE: It’s something you can answer and they may
not need to hear.
THE COURT: Okay, come up here and just ask me. I’m not going to put it on
the record at this time.
(Judge confers with Juror 12.)
THE COURT: Okay, that was easy. That’s it. Thanks. Okay, see you-all
tomorrow.
In one of our rebriefing orders, see Thompson v. State, 2014 Ark. 79 (per curiam), we
directed appellate counsel to address this issue of a possible ex parte communication, which
then prompted counsel to seek a hearing in the circuit court regarding this issue. Thereafter,
on May 20, 2014, counsel filed in this court a supplemental record from that hearing. The
supplemental record reflects that a juror asked the circuit judge whether jurors could ask
witnesses questions, to which the circuit judge responded, “No.”
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As previously pointed out, Thompson now argues that he is entitled to a reversal of
his conviction because of the circuit court’s failure to hold a posttrial hearing. As the State
points out, however, a posttrial hearing was held and the nature of the exchange between the
circuit judge and the jury was stated on the record. It is now clear that the exchange was in
no way prejudicial to Thompson. This court noted in Barritt v. State, 372 Ark. 395, 400–01,
277 S.W.3d 211, 215 (2008), as follows:
Both this court and the United States Supreme Court have noted that a “conclusion
that an unrecorded ex parte communication between trial judge and juror can never
be harmless error ignores [the] day-to-day realities of courtroom life and undermines
society’s interest in the administration of justice.” Howard v. State, 367 Ark. 18, 35,
238 S.W.3d 24, 38 (2006) (quoting Rushen v. Spain, 464 U.S. 114, 119 (1983)).
In this case, not only was the exchange between the circuit judge and the juror
inconsequential, but also Thompson never objected when the circuit judge allowed the juror
to approach and ask the question or anytime thereafter. Thompson now argues, however,
that this court should consider his argument pursuant to the second Wicks exception and cites
to this court’s decision in Bell v. State, 223 Ark. 304, 265 S.W.2d 709 (1954), which was the
basis for the second exception announced in Wicks, 270 Ark. 781, 606 S.W.3d 366. In Bell,
the State argued that the appellant had not timely objected after learning that the circuit judge
had engaged in such a communication. This court rejected the State’s argument and
explained as follows:
It is true that we have said many times in appeals in criminal cases that error assigned
in the Motion for New Trial must be predicated on an objection or exception made
at the time the error was committed. This is the rule: but we have recognized an
exception to it, particularly in the matter of improper argument. In Wilson v. State,
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126 Ark. 354, [359,] 190 S.W. 441, 443 [1916], in discussing the absence of any
objection to an improper argument, we said:
‘Appellant cannot predicate error upon failure of the court to make a ruling that
he did not at the time ask the court to make, unless the remarks were 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 not to consider the same.’
In the case at bar, we hold that the conversation between the Trial Judge and
the juror falls within the purview of the quoted language above: the Judge, having
committed the error, should have corrected it on his own motion, and the accused was
not obligated to make a formal objection because the error had already been
committed, and an objection could not have erased the damage that had been done.
The remarks that the Trial Judge made to the jury were the same as ink upon snow,
and no amount of admonitions or cautions could have erased from the minds of the
jury what the Trial Judge had said.
Id. at 310, 265 S.W.2d at 712 (footnotes omitted). The court in Bell ultimately concluded
that the error was prejudicial and warranted a reversal of the appellant’s conviction.
The instant case is simply not controlled by this court’s decision in Bell. In the Bell
case, the circuit judge entered the jury room during deliberations to ask the jury if they were
going to reach a verdict before a certain time and then answered juror questions about
possible sentencing implications. The communication in this case in no way rises to the level
of the exchange in Bell. We simply do not have a record before us that demonstrates
prejudice or warrants reversal of Thompson’s conviction.
Arkansas Supreme Court Rule 4-3(i) (2014) requires this court to review the record
for all errors prejudicial to an appellant in all cases when the sentence is death or life
imprisonment. Pursuant to that review, we have discovered an error that occurred during
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sentencing. The record reflects that at the close of the case, the circuit court instructed the
jury, in relevant part, as follows:
REQUESTED INSTRUCTION NO. 13, AMCI 2d 1001
Edward Lee Thompson III is charged with the offense of capital murder. To
sustain this charge, the State must prove beyond a reasonable doubt:
First: That Edward Lee Thompson III, acting alone or with one or more other
persons, committed the crime of aggravated robbery; and
Second: That in the course and in furtherance of that crime, or in immediate
flight therefrom, Edward Lee Thompson III, or a person acting with him, caused the
death of Keye Richard Ratley under circumstances manifesting extreme indifference
to the value of human life.
REQUESTED INSTRUCTION NO. 14, AMCI 2d 1001-A
As part of the charge of capital murder, the State contends that the death of
Keye Richard Ratley occurred during the commission or attempted commission of the
crime of aggravated robbery. To prove aggravated robbery, the State must prove
beyond a reasonable doubt:
First: That with the purpose of committing a theft, Edward Lee Thompson III,
or an accomplice, employed or threatened to immediately employ physical force upon
another; and
Second: That Edward Lee Thompson III, or an accomplice, was armed with
a deadly weapon or represented by words or conduct that he was armed with a deadly
weapon.
If the crime of aggravated robbery is not proved to have been committed or
attempted by Edward Lee Thompson III, he is not guilty of capital murder.
REQUESTED INSTRUCTION NO. 15, AMCI 2d 301
Edward Lee Thompson III is charged with capital murder. This charge
includes the lesser offense of murder in the first degree. You may find the defendant
guilty of one of these offenses or you may acquit him outright.
If you have a reasonable doubt of the guilt of the defendant on the greater
offense, you may find him guilty only of the lesser offense. If you have a reasonable
doubt as to the defendant’s guilt of both offenses, you must find him not guilty.
REQUESTED INSTRUCTION NO. 16, AMCI 2d 302
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If you have a reasonable doubt of the defendant’s guilt on the charge of capital
murder, you will then consider the charge of murder in the first degree.
REQUESTED INSTRUCTION NO. 17, AMCI 2d 1002
To sustain the charge of murder in the first degree, the State must prove
beyond a reasonable doubt:
First: That Edward Lee Thompson III, acting alone or with one or more other
persons, committed the crime of robbery; and
Second: That in the course and in furtherance of that crime or attempt or in
immediate flight therefrom, Edward Lee Thompson or a person acting with him,
caused the death of Keye Richard Ratley under circumstances manifesting extreme
indifference to the value of human life.
REQUESTED INSTRUCTION NO. 18, AMCI 2d 1002-A
As part of the charge of murder in the first degree, the State contends that the
death of Keye Richard Ratley occurred during the commission or attempted
commission of the crime of robbery. To prove robbery, the State must prove beyond
a reasonable doubt:
That with the purpose of committing a theft, Edward Lee Thompson III, or an
accomplice, employed or threatened to immediately employ physical force upon
another.
If the crime of robbery is not proved to have been committed or attempted by
Edward Lee Thompson III, he is not guilty of murder in the first degree.
REQUESTED INSTRUCTION NO. 20, AMCI 2d 1201
Edward Lee Thompson III is charged with the offense of aggravated robbery
of Tyler Ratley. To sustain this charge, the State must prove the following things
beyond a reasonable doubt:
First: That with the purpose of committing a theft, Edward Lee Thompson III,
or an accomplice, employed or threatened to immediately employ physical force upon
Tyler Ratley, and
Second: That Edward Lee Thompson III, or an accomplice, was armed with
a deadly weapon or represented by words or conduct that he was armed with a deadly
weapon.
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REQUESTED INSTRUCTION NO. 22, AMCI 2d 301
Edward Lee Thompson III is charged with aggravated robbery. This charge
includes the lesser offense of robbery. You may find the defendant guilty of one of
these offenses or you may acquit him outright.
If you have a reasonable doubt of the guilt of the defendant on the greater
offense, you may find him guilty only of the lesser offense. If you have a reasonable
doubt as to the defendant’s guilt of both offenses, you must find him not guilty.
Thus, the jury was instructed that in order to convict on the charge of capital-felony murder,
the State was required to prove that Thompson committed the underlying felony of
aggravated robbery. But, the jury was also instructed on the lesser-included offense of first-
degree murder, which required the State to prove that Thompson committed the underlying
felony of robbery. The court also instructed the jury on the charge of aggravated robbery,
its lesser-included offense of robbery, as well as on the two theft charges. Additionally, the
State sought firearm enhancements on both the murder and the robbery, and the jury was so
instructed.
Following jury deliberations, the circuit court read the jury verdicts aloud. The jury
found Thompson not guilty of capital murder but guilty of first-degree murder. However,
the jury found that the State had not proved that Appellant employed a firearm as a means of
committing the murder. The circuit court then announced that the jury had found
Thompson guilty of aggravated robbery but not guilty of using a firearm to commit the
aggravated robbery. The following then occurred:
THE COURT: (Reading) We, the Jury, find Edward Lee Thompson III guilty
of robbery. I don’t actually need this one. This is a lesser of the aggravated robbery.
So I’ll just consider this moot. Is that okay with the attorneys?
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[DEFENSE COUNSEL]: Your Honor, may I approach?
THE COURT: You-all approach.
[DEFENSE COUNSEL]: Your Honor, I guess I would argue that it should be
robbery and not aggravated robbery since the lesser – since murder one says robbery
is the underlying part of that charge is robbery, not aggravated robbery.
[THE STATE]: Guilty of aggravated robbery as to Tyler, but not guilty of the
capital. So I am going to ask for the murder first and the aggravated robbery
conviction.
THE COURT: Okay. . . . I’m going to find that they found him guilty of
aggravated robbery and that this jury verdict on plain robbery is moot and unnecessary.
[DEFENSE COUNSEL]: Can I just make one more argument, Your Honor? Just
for the record that I would argue that they found him guilty of robbery and that’s the
underlying felony and therefore he should not be found guilty of the aggravated
robbery because of the fact that they – it corresponds with the murder charge.
THE COURT: Okay, thank you.
This colloquy demonstrates that what trial counsel actually argued was that the State
could not convict Thompson on the charge of aggravated robbery, when it was the
underlying felony for capital murder, the charge the jury acquitted on. Thompson’s trial
counsel further argued that the felony corresponded to the murder charge, and because the
jury found Thompson guilty of first-degree murder, the underlying felony for which he could
also be convicted was robbery.
We find this argument to be meritorious. It is well settled under our sentencing
statutes that a person charged with felony murder, either capital or first degree, may be
convicted of, and sentenced for, both the murder and the underlying felony. See Ark. Code
Ann. § 5-1-110(d)(1)(A), (C) (Repl. 2013). Those provisions state as follows:
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(d)(1) Notwithstanding any provision of law to the contrary, a separate
conviction and sentence are authorized for:
(A) Capital murder, § 5-10-101, and any felony utilized as an underlying felony
for the capital murder;
...
(C) Murder in the first degree, § 5-10-102, and any felony utilized as an
underlying felony for the murder in the first degree.
This court has recognized that circuit courts have specific authority to sentence a defendant
for the underlying felony supporting a capital-murder charge, as well as the felony of capital
murder itself. Jackson v. State, 2013 Ark. 19 (per curiam); see also Clark v. State, 373 Ark. 161,
282 S.W.3d 801 (2008). The same would apply to a charge of first-degree-felony murder and
its underlying felony. Here, the underlying felony for the first-degree murder charge was
robbery. Thus, it is proper for the circuit court to sentence Thompson on the first-degree
murder conviction and its underlying felony of robbery, and we reverse and remand for the
circuit court to correct the sentence imposed for aggravated robbery.
No other reversible error has been found pursuant to our Rule 4-3(i) review.
Affirmed in part; reversed and remanded in part.
BAKER and GOODSON, JJ., concur.
Benca & Benca, by: Patrick J. Benca, for appellant.
Dustin McDaniel, Att’y Gen., by: Jake H. Jones, Ass’t Att’y Gen., for appellee.
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