JARELL DAVIS TERRY v. STATE OF ARKANSAS , 2020 Ark. 202 ( 2020 )

Cite as 2020 Ark. 202
SUPREME COURT OF ARKANSAS
No. CR-18-982
Opinion Delivered: May 21, 2020
JARELL DAVIS TERRY
APPELLANT APPEAL FROM THE DREW
COUNTY CIRCUIT COURT
V. [NO. 22CR-18-3]
STATE OF ARKANSAS HONORABLE SAM POPE, JUDGE
APPELLEE
AFFIRMED.
KAREN R. BAKER, Associate Justice
This appeal returns after our remand in Terry v. State, 2019 Ark. 342 (Terry I).
Appellant, Jarell Davis Terry, was found guilty by a Drew County Circuit Court jury of
first-degree murder, aggravated robbery, and theft of property. Terry was sentenced to life
imprisonment for first-degree murder, life imprisonment for aggravated robbery, and fifteen
years’ imprisonment for theft of property. Terry argues three points on appeal: (1) substantial
evidence does not support his convictions; (2) the circuit court abused its discretion on a
juror-misconduct allegation; and (3) the record was inadequate on jury questions during
deliberations. We affirm for the reasons that follow.
I. Procedural History
Terry’s convictions and sentences stem from the November 14, 2017 theft, robbery,
and murder of Christon Sheets. The State charged Terry and his accomplice, Dominze
Figures, with first-degree murder, aggravated robbery and theft of property.1 At Terry’s jury
trial, State’s witness Mistie Pamplin testified that she was Sheets’s girlfriend and the two
lived together in Wilmar. Pamplin testified that on November 14, 2017, Sheets drove to
McGee, picked up Figures and Terry and brought them back to their house. Pamplin
testified that Sheets had approximately one pound of marijuana and two guns at the house.
Pamplin testified that the group spent the day smoking marijuana and playing dominoes and
video games. Pamplin testified that there was a bag of marijuana on the top bunk bed and
some in a jar on the floor. Pamplin further testified that while they were smoking, Terry
and Figures were holding Sheets’s guns––Terry held the black one and Figures held the
brown one. While standing in the doorway and each holding one of Sheets’s guns, Figures
pointed the gun at Pamplin and Sheets and said, “[Y]ou know what this is[.]” Pamplin stated
that Terry was also pointing a gun at Pamplin and Sheets when this statement was made.
Pamplin testified that Sheets jumped up and began fighting with Terry. Pamplin further
stated that as the two began fighting, she ducked her head and heard a gunshot. Pamplin
looked up to see that Sheets had been shot, but she did not see who had pulled the trigger.
Pamplin testified that Sheets was on the floor and asked Pamplin to take him to the hospital
and Terry responded, “[B]itch, you better not.” Pamplin testified that the two men took
Sheets’s guns and “the bag of weed off the top bunk” and fled the scene. Sheets died from
his gunshot injuries.
Dr. Stephen Erickson, Deputy Chief Medical Examiner at the Arkansas State Crime
Lab, testified that Sheets’s cause of death was due to gunshot wounds to his abdomen and
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Terry filed a motion to sever his trial from Figures’s trial, which was granted.
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pelvis. At the close of the State’s evidence, Terry moved for a directed verdict on each
count. The circuit court denied Terry’s motion.
Terry testified in his own defense. Terry testified that he and Figures were simply
going to Sheets’s house to hang out for the weekend and there was no discussion of an
illegal plan. The group arrived at Sheets’s house at around 1:00 p.m., smoked weed, played
dominoes and video games, and ate pizza. Terry testified that later that evening,
approximately two minutes before the shooting, he picked up one of the rifles while Figures
had the other rifle. However, Terry testified that he gave the rifle back to Sheets, who
placed the rifle in his own lap. Terry stated that prior to the shooting, Figures was acting
different. Terry further stated that at the time of the shooting, he did not have the rifle in
his hand. Terry testified that when Figures stood up and said, “you know what this is,”
Sheets jumped up and tackled Terry, and the two began wrestling. When Sheets jumped
up, the gun fell to the floor. Sheets pinned Terry to the ground, picked up the gun, and
pointed it at Figures. Terry heard gunshots and realized that he had been shot in the ankle.
Terry testified that Figures instructed him to grab the marijuana and the gun. Terry
complied and took the marijuana and the gun as they left Sheets’s home. Terry testified that
Pamplin was screaming, and he told her to shut up, but he denied pointing a gun at her and
did not say “bitch you better not.” Terry testified that he and Figures fled and got into a
getaway car driven by Figures’s girlfriend, which Terry claimed he knew nothing about.
At the close of the evidence, Terry renewed his motions for directed verdict on all
counts, which was again denied except that the circuit court granted the motion as to the
intentional-killing formulation of first-degree murder. Terry was found guilty of first-
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degree murder, aggravated robbery, and theft of property. The jury sentenced Terry to two
terms of life imprisonment and one term of fifteen years’ imprisonment and recommended
that the terms run consecutively. The circuit court entered its judgment and commitment
order consistent with the jury’s recommendation except that it ran the fifteen-year term
concurrent with the second life sentence. This appeal followed.
II. Points on Appeal
A. Sufficiency of the Evidence
For his first point on appeal, Terry argues that the circuit court erred in denying his
motion for directed verdict. On appeal, Terry argues that there was insufficient evidence to
sustain his convictions of first-degree murder, aggravated robbery, and theft of property. On
appeal, a motion for directed verdict is treated as a challenge to the sufficiency of the
evidence. Reynolds v. State, 2016 Ark. 214, 492 S.W.3d 491. This court views the evidence
in the light most favorable to the State and affirms if there is substantial evidence to support
the verdict. Id. Substantial evidence is that which is of sufficient force and character that it
will, with reasonable certainty, compel a conclusion one way or the other, without resorting
to speculation or conjecture. Id. This court does not weigh the evidence presented at trial
or assess the credibility of the witnesses, because those are matters for the fact-finder. Id.
The trier of fact is free to believe all or part of any witness’s testimony and may resolve
questions of conflicting testimony and inconsistent evidence. Id. Only evidence supporting
the verdict will be considered. Leaks v. State, 345 Ark. 182, 45 S.W.3d 363 (2001).
With these standards in mind, we turn to Terry’s sufficiency argument. A person
commits murder in the first degree if
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[a]cting alone or with one (1) or more other persons, he commits or attempts to
commit a felony, and in the course of and in the furtherance of the felony or in
immediate flight therefrom, he or an accomplice causes the death of any person under
circumstances manifesting extreme indifference to the value of human life[.]
Ark. Code Ann. § 5-10-102(a)(1)(B) (Supp. 2019). Further, we have “consistently defined
circumstances manifesting extreme indifference to the value of human life as deliberate
conduct that culminates in the death of another person. Jefferson v. State, 372 Ark. 307, 276
S.W.3d 214 (2008); Wyles v. State, 368 Ark. 646, 249 S.W.3d 782 (2007); Branstetter v. State,
346 Ark. 62, 57 S.W.3d 105 (2001); Coulter v. State, 343 Ark. 22, 31 S.W.3d 826 (2000);
Davis v. State, 325 Ark. 96, 925 S.W.2d 768 (1996). We have also stated that extreme
indifference requires actions that evidence a mental state on the part of the accused to engage
in some life-threatening activity against the victim. Perry v. State, 371 Ark. 170, 264 S.W.3d
498 (2007).” Price v. State, 373 Ark. 435, 439, 284 S.W.3d 462, 465–66 (2008).
With regard to aggravated robbery, a person commits aggravated robbery if he or she
commits robbery as defined in § 5-12-102, and the person is armed with a deadly weapon.
Ark. Code Ann. § 5-12-103(a)(1). A person commits robbery if, with the purpose of
committing a felony or misdemeanor theft, he or she employs or threatens to immediately
employ physical force on another person. Ark. Code Ann. § 5-12-102(a)(3). “A criminal
defendant’s intent or state of mind is seldom capable of proof by direct evidence. Robinson
v. State, 353 Ark. 372, 108 S.W.3d 622 (2003). Intent to commit a robbery may be inferred
from the facts and circumstances of the case. Jenkins v. State, 350 Ark. 219, 85 S.W.3d 878
(2002).” Jefferson v. State, 359 Ark. 454, 464, 198 S.W.3d 527, 532–33 (2004). Further, theft
of property occurs when a person takes unauthorized control over the property of another
person with the purpose of depriving the owner of the property. Ark. Code Ann. § 5-36-
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103(a)(1). Finally, an accomplice is one who directly participates in the commission of an
offense or who, with the purpose of promoting or facilitating the commission of the offense,
aids, agrees to aid, or attempts to aid the other person in the planning or committing of the
offense. See Ark. Code Ann. § 5-2-403(a)(2).
Based on the evidence presented at trial, we hold that sufficient evidence supported
Terry’s conviction for first-degree murder arising out of the shooting of the aggravated-
robbery victim, Sheets. Pursuant to Pamplin’s testimony, when Figures pointed his gun at
Sheets and Pamplin and stated, “[Y]ou know what this is,” Terry also pointed his gun at
Pamplin and Sheets. After Sheets was shot and he asked Pamplin to take him to the hospital,
Terry told Pamplin, “[B]itch, you better not.” Finally, Figures and Terry fled the scene with
Sheets’s guns and marijuana. Based on the above facts, it was clear that Sheets was killed in
the furtherance of the aggravated robbery. Despite Terry’s testimony that he acted under
duress because he feared Figures, the jury was free to accept or reject his testimony. See
Reynolds, supra. Viewing the evidence in the light most favorable to the State, we hold that
substantial evidence supports Terry’s first-degree-murder, aggravated-robbery, and theft-of-
property convictions. In sum, the evidence supports a conclusion that Sheets’s death
occurred during the commission of an aggravated robbery and theft under circumstances
manifesting extreme indifference to the value of human life. Therefore, we hold that Terry’s
convictions are supported by sufficient evidence. Accordingly, we affirm the denial of his
motions for directed verdict as to all three counts.
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B. Juror Misconduct
For his second point on appeal, Terry argues that the circuit court abused its
discretion in not allowing him to question a juror regarding her head nod toward the
victim’s family. After the jury returned its verdicts during the sentencing phase of trial, but
prior to the jury being discharged, defense counsel told the circuit court that during the
guilt phase, Terry saw a juror nodding at the victim’s family before the jury announced its
verdicts. Defense counsel stated that he wanted to question the juror, and the circuit court
denied this request. The circuit court explained that this issue was first brought to the court’s
attention during the sentencing phase and that it would not allow the jurors “to be
questioned to go behind their verdicts.” The circuit court discharged the jury. After the
jury was discharged, Terry testified that he saw the juror look at the victim’s family and nod
her head, as if to assure the family, “[Y]es, we got him.” The juror did not speak to anyone.
Terry testified that he told his attorney about this as soon as it occurred, which was before
the circuit court received the guilty verdicts. The circuit court then questioned two bailiffs,
but neither saw the juror look or nod at the victim’s family. Both the prosecutor and the
judge stated that they did not see the juror nod at anyone but that they were not paying
attention to the jury when it entered the courtroom. On appeal, Terry argues that even if
this issue is not preserved, we can address it under our Rule 4-3(i) review.
In response, the State argues that because this argument was not raised at the first
opportunity, Terry is barred from raising it on appeal. With regard to Rule 4-3(i), the State
properly points out that the Rule does not mandate plain-error review. The record
demonstrates that at trial, Terry did not raise this issue at the first opportunity, and therefore,
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it is not preserved for our review. Further, while we are required by Rule 4-3(i) to review
the record for error in life and death cases, that review presupposes that a proper objection
was made at trial. Miller v. State, 942 S.W.2d 825, 328 Ark. 121 (1997) (explanation of the
scope of our review under the Rule’s previous designation of Ark. Sup. Ct. R. 4-3(h)).
Here, the alleged juror misconduct occurred after the jury had reached its verdicts in
the guilt phase. However, Terry did not notify the court until the jury was deliberating
Terry’s sentence, and the issue was not objected to on a timely basis and was not preserved
for review. Despite preservation, Terry contends that the juror may have known the victim’s
family and may have prejudiced him. Terry makes bare allegations and offers no evidence
to support these allegations. “Following allegations of juror misconduct, the moving party
bears the burden of proving that a reasonable possibility of prejudice resulted from any such
juror misconduct. Dillard v. State, 313 Ark. 439, 855 S.W.2d 909 (1993); Larimore v. State,
309 Ark. 414, 833 S.W.2d 358 (1992). We will not presume prejudice in such situations.
Id.” State v. Cherry, 341 Ark. 924, 930, 20 S.W.3d 354, 358 (2000). Here, the alleged nod
occurred just as the guilt-phase verdicts were being rendered. Terry does not allege
misconduct during deliberations. Additionally, Terry offers no corroborating evidence to
support his allegations. “[T]his court has repeatedly held that the issue of witness credibility
is for the trial judge to weigh and assess. Green v. State, 334 Ark. 484, 978 S.W.2d 300
(1998); Myers v. State, 333 Ark. 706, 972 S.W.2d 227 (1998). Accordingly, this court will
defer to the superior position of the trial court to evaluate the credibility of witnesses.
Humphrey v. State, 327 Ark. 753, 940 S.W.2d 860 (1997).” Id. at 930–31, 20 S.W.3d at358.
Based on the record before us, Terry has failed to demonstrate that juror misconduct
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occurred and that he was prejudiced. Accordingly, we are not persuaded by Terry’s
argument and affirm the circuit court’s order on this point.
C. Inadequate Record on Jury Questions During Deliberations
For his third point on appeal, Terry contends that the record is inadequate on two
jury questions posed through notes to the court during deliberations. Terry asserts that
because the record is incomplete, the State could not meet its burden of rebutting the
presumption of prejudice. Accordingly, Terry contends that his convictions and sentences
must be reversed for a new trial.
At issue are two notes. The first jury note is marked “Court’s Exhibit 1” and states:
“We need the Laws for the accessory [sic] to the crime! We need a clarification for the
Statue [sic] of first degree murder.” The second jury note is marked “Court’s Exhibit 2”
and states: “All New Verdict Forms.” In Terry I, we remanded the matter to the circuit
court to settle the record regarding the two notes. We held that
due to the lack of a verbatim record—when the circuit court ordered the jury notes
marked as court’s exhibits and received the jury notes into evidence—it is impossible
to determine whether Terry and his counsel were present. Likewise, we are unable
to determine compliance or noncompliance with section 16-89-125(e). Accordingly,
pursuant to Rule 4(a) of the Arkansas Rules of Appellate Procedure –Criminal and
Rule 6(e) of the Arkansas Rules of Appellate Procedure –Civil, we remand the
matter to settle the record. Under Rule 6(e), the circuit court may settle any
difference that ‘arises as to whether the record truly discloses what occurred in the
circuit court.’ The rule further provides that the circuit court can correct omissions
from the record by error or accident or misstatements therein. See McGehee v. State,
328 Ark. 404, 943 S.W.2d 585 (1997). Here, the circumstances and discussions
surrounding the jury notes are unclear.
Terry I, 2019 Ark. 342, at 6–7.
After remand, the circuit court conducted a hearing on December 17, 2019, to settle
the record. At the hearing, Terry’s trial counsel, Mr. Joe Mazzanti, testified that the first
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note concerned the definition of accomplice liability. Mazzanti testified that he did not
remember the jury returning to the courtroom when the note was sent out to the judge.
Mazzanti further testified that
[i]f I recall correctly, there was a knock at the door and the bailiff took the note, or
the jury may have asked a question or wanted to ask a question. They were told to
put it in writing. And they put it in writing, submitted it to the bailiff. The bailiff
took it to the judge. And at some point, the Judge and us attorneys got together. We
certainly had an opportunity to look at the note. . . . The question concerned the
definition of accomplice liability, which was contained in the jury instructions. And
I believe that that was just a general consensus that what they needed were the jury
instructions. And all the parties -- And all the attorneys and the Court agree to just
send the instructions back to the jury.
Additionally, Mazzanti testified that he believed Terry was in the courtroom during
deliberations. Mazzanti also testified that the “attorneys and the court agreed to just send
the instructions back.” Additionally, Mazzanti agreed that his recollection was that the
proper response to the first note was to send printed copies of the instructions to the jury.
Mazzanti further agreed that providing the jury instructions to the jury adequately informed
the jury of the issues it was inquiring about regarding the first note. With regard to the
second note that stated, “All New Verdict Forms,” Mazzanti testified, “I vaguely remember
us wondering why they needed new verdict forms. But I just don’t recall there being much
conversation, much discussion about that. But I believe we just agreed that a new set of
verdict forms would be submitted to them.” Mazzanti further testified that although he did
not have a specific memory about the second note, he stated that “it’s my practice, when
we do have a discussion about something or there is a note that comes back from the jury.
I go back to my client and explain to him what the note said and tell him how we responded
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or how it was responded to.” In sum, Mazzanti agreed that the jury requested another set
of instructions and that they wanted new copies of the verdict forms.
The bailiff, Mr. James Lee, testified that two notes were sent out from the jury and
that there was no other contact from the jury. He believed that the judge was still on the
bench when the first note was sent out to the court. Lee testified that the attorneys conferred
about the first note, but he was not privy to their discussions. Lee testified that the jury was
not called back into the courtroom for either the first or the second note.
Terry also testified. He stated that he was in the courtroom when the bailiff presented
the first note to the judge. Terry testified that he saw the judge read the note and that he
recalled a conference with the judge and attorneys, and the judge said, “[W]e’ll tell [the
jury] to resort to the instructions.” Terry further testified that he was not aware what the
conference was about and assumed it was about a separate issue unrelated to the notes. As
for the second note, Terry testified that he was unaware of the second note and had not
seen the note or known anything about the note.
On December 19, 2019, the circuit court entered its findings of fact, which stated in
pertinent part:
The Court finds that these are the jury instructions delivered to the jury by
the Court’s Bailiff James Lee at the Court’s direction in response to the jury’s
question, received by the Court at R. 337, said note admitted by the Court as Court’s
Exhibit One at R. 492. Both trial counsel were shown the note before it was
responded to by delivery of the instructions to the jury, did not object, and Mr.
Mazzanti conferred with the defendant about the note. Defendant’s testimony at the
hearing is the note was delivered to the Court in the courtroom while he was present.
This was all in the guilt/innocence phase of the trial.
After the jury found the defendant guilty and the jury was deliberating on the
sentence, the Court received from the bailiff. Note Two from the jury. R.373 and
R.494. The jury requested new verdict forms in the note. The penalty phase verdict
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forms furnished by the Court and delivered to the jury are attached to these findings
and order as Court’s Exhibit One to these findings . They are the-same verdict forms
read orally to the jury at trial in blank form. R. 366-367. No other comment was
made by the Court to the jury. The Court, nor anyone else, inquired of the jury
why they needed new verdict forms. Both counsel saw the note in chambers and
neither objected to the verdict forms being duplicated and new forms being provided
to the jury as their note requested. Mr. Mazzanti did not recall specifically discussing
this with defendant. Defendant said he did not know of the request.
On appeal, Terry asserts that despite the best efforts to reconstruct the record, the
supplemental record falls short of meeting his constitutional guarantees to be present at all
substantial stages. Terry contends that he was not present at a critical stage in his prosecution
because he was not informed of the contents of the first note, and he was not present for
the proceedings involving the second note, which both amount to a violation of the critical-
stage doctrine. At issue is Ark. Code Ann. § 16-89-125(e) (Repl. 2005), which provides:
After the jury retires for deliberation, if there is a disagreement between them as to
any part of the evidence or if they desire to be informed on a point of law, they must
require the officer to conduct them into court. Upon their being brought into court,
the information required must be given in the presence of or after notice to the
counsel of the parties.
Noncompliance with Ark. Code Ann. § 16-89-125(e) gives rise to a presumption of
prejudice, and the State has the burden of overcoming that presumption. Clayton v. State,
321 Ark. 602, 906 S.W.2d 290 (1995). The failure of a defendant and his counsel to be
present when a substantial step––such as the judge’s answering questions of law in the jury
room––is taken in a defendant’s case results in a violation of the defendant’s fundamental
right to be present at any stage of the criminal proceeding that is critical to the outcome.
Goff v. State, 329 Ark. 513, 953 S.W.2d 38 (1997). However, this court has held that strict
compliance with the rule was waived where attorneys went with the judge to the jury room,
everything that happened was reported in the record, and there was no possibility of
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prejudice. Martin v. State, 254 Ark. 1065, 497 S.W.2d 268 (1973). In Bledsoe v. State, 344
Ark. 86, 39 S.W.3d 760 (2001), we also addressed Ark. Code Ann. § 16-89-125 and held,
The requirement of section 16-89-125(e) that the judge call the jury into
open court to answer any question the jury might have is mandatory. See Tarry v.
State, 289 Ark. 193, 710 S.W.2d 202 (1986). Noncompliance with this statutory
provision gives rise to a presumption of prejudice, and the State bears the burden of
overcoming that presumption. Id.
Notwithstanding, in Martin v. State, 254 Ark. 1065, 497 S.W.2d 268 (1973),
this court held that strict compliance had been waived where the attorneys went with
the judge to the jury room, everything that happened was reported in the record,
and there was no possibility of prejudice. Likewise, in Houston v. State, 41 Ark. App.
67, 848 S.W.2d 430 (1993), the court of appeals rejected the appellant’s argument
that a mistrial should have been declared after the trial court violated section 16-89-
125(e). There, the jury sent the judge a note, asking: “Are we allowed to require
drug rehabilitation as part of the sentence?” Id. at 71, 848 S.W.2d 430. The trial court
answered, “You may make any recommendations you wish. Please keep this note.
Jack Lessenberry.” Id. In finding that this communication was not prejudicial and did
not require a mistrial, the court of appeals stated:
It was obvious the jury had finished deliberations on guilt by that point and
simply wanted to add this condition to appellant’s sentence. The record also
shows that the court gave notice of the jury’s note to defense counsel before
the jury returned. Counsel made no motions or objections to the court’s
response at that time.
Id.
The situation at issue here is analogous to those in Martin and Houston. The
statements made by the trial court on record indicate that when the jury sent out a
question, it was discussed with both attorneys, and on at least one occasion, the
attorneys were present with the judge at the jury room door when the jury asked a
question. Moreover, the trial court presented the jury’s questions to the court
reporter so that the information could be transcribed on the record. Appellant never
lodged any objection, nor made any claim, that the trial court’s actions were
prejudicial. Finally, the jury never even sentenced Appellant because they were
deadlocked. While it was certainly inappropriate for the trial court to engage in any
type of ex parte communication with the jury, the trial court’s actions here did not
result in prejudice to Appellant.
344 Ark. at 93–94, 39 S.W.3d at 765–66.
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Further, in Atkinson v. State, 347 Ark. 336, 351–52, 64 S.W.3d 259, 269–70 (2002),
the record did not reflect whether or in what manner the circuit court responded or
communicated with the jury regarding the jury’s request for letters that were not in
evidence:
During the jury’s deliberation in the guilt phase, the jury sent a note to the
trial court containing two questions: “May we please see the letters written by
Carmen to Richard in jail? Also statements to police by Carmen on October One
and October Two.” After a discussion between the trial court and counsel for the
parties, the trial court stated the following: “I’m just going to say that the letters and
statements, the written forms, are not in evidence. The spoken word is what they
have to consider.” When the court asked whether anyone objected to that answer,
counsel for the prosecution responded, “no,” and counsel for appellant responded,
“It’s a correct statement of the law.”
Because the record was not clear, we remanded the matter to settle the record. The circuit
court held a hearing with Atkinson, her counsel and the prosecuting attorney. The appeal
returned, and finding no error, we affirmed:
While the trial court here violated § 16-89-125(e) by communicating with
the jury other than in open court, reversal of Atkinson’s conviction here, in these
particular limited circumstances, is not warranted, because the State clearly rebutted
the presumption of prejudice which arose from the violation. The trial court found,
without objection by Atkinson, that its communication with the jury was limited to
answering the jury’s questions via a note, using the language agreed upon by the
parties. The record clearly reflects the substance of the trial court’s communication
with the jury, and the court answered the jury’s questions in the manner agreed upon
by the parties in open court. Here, the trial court never had any contact with the
jury during deliberations, and Atkinson fully agreed with the court and State
regarding the answer written on the same note on which the jury had written its
questions. In short, the State clearly rebutted the presumption of prejudice which
arose from any violation of § 16-89-125(e). To reverse this case on these facts would
place form over substance and would in effect adopt a brightline rule which would
require an automatic reversal merely by showing § 16-89-125[(e)] had been violated.
That is not the rule. Here, the court’s communication with the jury was shown not
to be prejudicial to Atkinson, and Atkinson made no objection to the contrary. Thus,
we affirm the trial court on all points.
Atkinson, 347 Ark. at 351–52, 64 S.W.3d at 269–70.
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Here, the record demonstrates that during deliberations, the jury sent out two notes.
The supplemental record establishes that these two notes were the circuit court’s only
communications with the jury. Further, the supplemental record demonstrates that the
circuit court found that the jury instructions and verdict forms that the jury received in
response to its questions were part of the record and made part of the supplemental record.
Also, Mazzanti testified that he believed that the first note only sought jury instructions and
the second note sought new verdict forms. Further, the supplemental record demonstrates
that when the jury posed the two questions, the circuit court met with the prosecutor and
Mazzanti and the parties agreed on a response to the jury. Based on the discussion above,
while it evident that the circuit court did not comply with Ark. Code Ann. § 16-89-125(e),
we hold that the State has rebutted the presumption of prejudice in this case. Mazzanti was
aware of the notes and agreed with the responses to the notes. Therefore, the presumption
has been rebutted. Finally, with regard to Terry’s argument that a critical-stage violation
occurred when he was not present for the second note, this argument is separate from the
critical-stage argument and based on the record, Terry did not preserve this issue for review.
Similarly, Terry argues that although he was present for the first note, his right to be present
was violated because he was not shown the contents of the note, nor was the note read
aloud in open court. However, Terry does not cite authority for this argument and the issue
was not preserved for our review. Accordingly, based on our discussion above, while the
circuit court failed to comply with Ark. Code Ann. § 16-89-125, the State has rebutted the
presumption of prejudice and we do not find reversible error. Therefore, we affirm the
circuit court’s order on this point.
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III. Rule 4-3(i) Review
This case involves a sentence of life imprisonment; therefore, it is subject to review
under Arkansas Supreme Court Rule 4-3(i). As required under Ark. Sup. Ct. R. 4-3(i), the
record has been examined for all objections, motions, and requests made by either party that
were decided adversely to Terry, and no prejudicial error has been found.
Affirmed.
WOOD, J., concurs.
Cullen & Co., PLLC, by: Tim Cullen, for appellant.
Leslie Rutledge, Att’y Gen., by: Adam Jackson, Ass’t Att’y Gen., for appellee.
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