Lewis v. State , 2014 Ark. 23 ( 2014 )

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SUPREME COURT OF ARKANSAS
No. CR-13-444
Opinion Delivered January 23, 2014
NIGEL R. LEWIS
APPELLANT APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT
[NO. CR-11-2206]
V.
HONORABLE JAMES LEON
JOHNSON, JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED.
JOSEPHINE LINKER HART, Associate Justice
A jury found Nigel R. Lewis guilty of capital murder, and he was sentenced to a term
of life imprisonment without the possibility of parole. He was also convicted of aggravated
robbery, aggravated residential burglary, theft of property, and fraudulent use of a credit card
and received respective sentences of imprisonment of twenty-five years, twenty-five years, ten
years, and ten years. The victim, Gail Miller, was an elderly woman who was found dead in
the bathroom of her North Little Rock residence where she lived alone. The evidence
showed that she had died as a result of strangulation and stab wounds to the neck. At the time
of his arrest, Lewis was in possession of Miller’s automobile in which gloves were found with
Miller’s blood on them. The evidence also showed that Lewis had used Miller’s bank cards.
On appeal, Lewis does not challenge the sufficiency of the evidence. Rather, he argues
that the circuit court erred by not allowing him to cross-examine Shayla Johnson, who was
charged as Lewis’s codefendant, about her prior misdemeanor third-degree domestic-battery
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conviction for having stabbed Lewis. Lewis argues that evidence about this stabbing was
admissible, first, to establish Johnson’s bias against Lewis and second, to prove that it was
Johnson who had stabbed Miller. We hold that the circuit court did not abuse its discretion
in excluding the evidence and affirm Lewis’s convictions and sentences.
We set out those parts of the record necessary for an analysis of Lewis’s argument. At
a pretrial hearing, the State sought to exclude testimony that Johnson had a prior conviction
for third-degree domestic battery against Lewis, arguing that testimony about the conviction
would not be admissible at trial because the conviction was a misdemeanor and did not go to
Johnson’s truthfulness. The State further asserted that the evidence had no relevance as to
Johnson’s bias because Johnson and Lewis reunited after Johnson’s conviction, and in any
event, it would not establish that Johnson was biased against Lewis but instead would establish
that Lewis was biased against Johnson. The State further asserted that if the evidence was
introduced by Lewis, the State would then seek to present rebuttal evidence to show that after
Johnson had pleaded guilty to the charge, Lewis remarked to a deputy prosecutor that it was
not Johnson’s fault because he had attacked Johnson, who was defending herself.
In response, Lewis’s counsel argued that the testimony concerning Johnson’s stabbing
of Lewis was relevant to show “violence on Johnson’s behalf,” without the necessity of
discussing the conviction. Lewis’s counsel further stated,“[A]nything she says is subject to
impeachment and I think the fact that she has stabbed my client before is something that
should be out there.” The circuit court ruled that the testimony was inadmissible. The court
noted that allowing the testimony would “open up a lot of doors to some other things and
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it does not go to truthfulness.” The court further observed, “[I]t doesn’t go to . . . two or
three instances so I’m not going to allow it.”
Johnson testified at trial about the crimes. According to Johnson, she had known Lewis
for about five years, and they had dated, lived together, and then broken up. On February 24,
2011, Lewis called her and asked if he could see her. She testified that though they were not
“together,” she told him he could come by, and they spent the night together. The next day,
Lewis told her that he intended to commit a robbery at a residence in North Little Rock
where he had previously cut the grass. Lewis described the resident, Miller, as an older lady
who lived alone and whose children lived out of state. Lewis stated that because Miller knew
him from when he cut her grass, he intended to gain access to the residence by asking Miller
if he could use her restroom. Johnson testified that Lewis obtained a butcher knife and black
duct tape from Johnson’s cousin and purchased a pair of brown cotton gloves. Johnson
admitted that she drove Lewis to North Little Rock and left him less than half a block from
where Miller lived but testified that she refused to go with him to Miller’s residence.
Johnson testified that later that night, Lewis met her at her cousin’s home. At Lewis’s
invitation, Johnson drove to a hotel room Lewis had rented, following Lewis as he drove a
car that she identified as Miller’s. At the hotel room, where Johnson and Lewis stayed for four
nights, Lewis explained that he had entered Miller’s residence quickly after asking to use the
restroom and that he had tied Miller to a chair with the tape, threatened her to obtain her
personal identification numbers for her bank cards, and taken Miller’s laptop computer.
Johnson identified Miller’s laptop computer as the computer that she saw in Lewis’s hotel
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room. She testified that when she used the computer at the hotel, the log-in name on the
computer was “Gail Miller.” Johnson observed Lewis using bank cards to obtain money from
an ATM and to purchase items from various stores and over the Internet. Johnson also
testified that when Lewis received a call that a billing address was incorrect, she spoke on the
phone to verify the cardholder’s name, Gail Miller.
Johnson admitted that she had taken a negotiated plea of twenty years’ imprisonment
conditioned upon her truthful testimony against Lewis. Johnson further testified that she had
given four statements to the police before she agreed to testify and that she had not been
completely honest during the interviews, as she did not discuss her own involvement in the
crimes.
During cross-examination by Lewis’s counsel, Johnson admitted that she had previously
been convicted of forgery, a felony. She further admitted that she had pleaded guilty to first-
degree murder in Miller’s death after the State reduced the charge from capital murder. She
acknowledged her understanding that she could have received a life sentence without parole
for capital murder, and because she pleaded guilty to the reduced charge, she would be eligible
for parole after serving fourteen years. Johnson testified that she was not in a relationship with
Lewis when he called her on February 24, 2011.
Following cross-examination, Lewis’s counsel approached the bench and asserted that
the state medical examiner had testified that the force used to stab Miller could have been from
a man or a woman. Counsel argued that evidence of Johnson stabbing Lewis was admissible
under Rule 404(b) of the Arkansas Rules of Evidence, arguing, “I can get into her past and
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then get into her MO.” The State argued that evidence of “MO” required evidence of more
than one instance. The circuit court denied the motion.
On appeal, Lewis asserts that the circuit court erred by not allowing him to cross-
examine Johnson about her misdemeanor third-degree domestic-battery conviction for
stabbing Lewis. First, Lewis argues that the evidence would have shown that Johnson was
biased against him. Bias is almost always relevant because the jury, as finder of fact and weigher
of credibility, assesses all evidence that might bear on the accuracy and truth of a witness’s
testimony. Fowler v. State, 339 Ark. 207, 219, 5 S.W.3d 10, 16–17 (1999) (citing United States
v. Abel, 469 U.S. 45, 52 (1984)).
In this case, however, we conclude that the testimony was marginally relevant and had
very little, if any, probative value relating to bias. Johnson’s stabbing of Lewis at some point
in the past does not necessarily establish that Johnson was biased against Lewis at trial, especially
given Johnson’s testimony that on February 24, 2011, they spent the night together. Moreover,
to establish bias, Lewis’s counsel questioned Johnson about her plea bargain with the State, and
Lewis’s counsel had the opportunity to cross-examine Johnson regarding any animosity
Johnson may have harbored against Lewis as a result of their relationship, without the necessity
of delving into the circumstances surrounding the stabbing. Given the limited relevance to bias,
the circuit court did not manifestly abuse its discretion in excluding the testimony. See Billett
v. State, 317 Ark. 346, 349–50, 877 S.W.2d 913, 915 (1994) (holding that the circuit court did
not manifestly abuse its discretion by excluding purported evidence of bias, in part because the
evidence was, at most, marginally relevant and had very little, if any, probative value).
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Second, Lewis argues that Johnson’s prior conviction for stabbing Lewis was proper
Rule 404(b) evidence to establish his defense that “although he was a thief and used the stolen
credit cards, he did not kill the victim,” and that Johnson was the person who murdered
Miller, noting the medical examiner’s testimony that he could not say with medical certainty
whether a man or a woman inflicted Miller’s wounds. To the extent that Lewis’s argument is
that this evidence would be proper modus operandi evidence, we note that modus operandi
evidence is admissible only if both acts were committed with the same or strikingly similar
methodology that is so unique that both acts can be attributed to one individual. Allen v. State,
2013 Ark. 396, at 5. We will not reverse the circuit court’s determination of admissibility
absent an abuse of discretion. Id.
The mere observation that Johnson stabbed Lewis in a domestic battery and that Miller
was then stabbed to death during an aggravated robbery and aggravated residential burglary
does not demonstrate that both Lewis and Miller were stabbed with the same or strikingly
similar methodology that is so unique that both acts can be attributed to Johnson. Other than
noting that Lewis had been stabbed, no evidence was proffered regarding the circumstances
surrounding the domestic battery. Thus, the circuit court did not abuse its discretion, as Lewis
failed to establish that the evidence was proper modus operandi evidence.
Lewis further relies on Rule 404(b) of the Arkansas Rules of Evidence, which provides
in part that “[e]vidence of other crimes, wrongs, or acts” may “be admissible for . . . proof of
motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident.” Admission of extrinsic acts under Rule 404(b) does not require the degree of
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similarity between the crimes as that necessary to establish modus operandi, and the circuit
court is granted considerable leeway in making a determination of admissibility. Brunson v.
State, 368 Ark. 313, 325, 245 S.W.3d 132, 142 (2006).
This court was faced with a similar question in Price v. State, 365 Ark. 25, 35, 223
S.W.3d 817, 825 (2006). In a murder case where the victim suffered blunt-force trauma to the
head, the defendant attempted to introduce a witness’s misdemeanor conviction for domestic
battery for striking her domestic partner in the head with a hammer. This court concluded that
the evidence could not be admitted because the defendant “never made a defense” that the
witness was the perpetrator of the murder. Similarly, aside from noting the medical examiner’s
testimony, which did not establish that the stabbing was done by a woman, Lewis does not
otherwise show how he developed at trial his theory that Johnson stabbed Miller. As in Price,
Lewis never put forth evidence to make a defense that Johnson was the person who stabbed
Miller. Accordingly, we hold that the circuit court did not abuse its discretion.
Finally, because Lewis received a sentence of life imprisonment, the record has been
examined for all objections, motions, and requests made by either party that were decided
adversely to Lewis, and no prejudicial error has been found. See Ark. Sup. Ct. R. 4-3(i) (2013).
Affirmed.
Montgomery, Adams & Wyatt, PLC, by: Dale E. Adams, for appellant.
Dustin McDaniel, Att’y Gen., by: Valerie Glover Fortner, Ass’t Att’y Gen., for appellee.
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