Walls v. State (1999)/Dissent Smith

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Dissenting Opinion
Smith

LAVENSKI R. SMITH, Justice, dissenting. I disagree with the majority that reversal is warranted in this case. The majority considers the court's statement, "I only know that, in the very least, you are indirectly responsible for the deaths of Joe, Barbara and Heather Stocks" an indication that the court intended to sentence Walls for uncharged crimes.

The sentence actually imposed indicates the court sentenced appellant in accordance with the law for the crimes he admittedly did commit. Appellant pleaded guilty to five counts of rape and no contest to a sixth rape count. All these offenses were committed repetitively against minor boys for nearly a decade. Appellant misused a position of trust to gain access to young boys and then sexually exploited them in base and despicable ways. Under our criminal code rape is a Class Y felony punishable by not less than ten (10) years and not more than forty (40) years or life. The trial court sentenced appellant to four consecutive life terms and two terms of forty (40) years. Given the heinous nature of the defendant's confessed acts I cannot say this sentence was indicative of prejudice.

The majority agrees with appellant that certain procedural improprieties during the hearing necessitate reversal. However, our cases are clear that only prejudicial error justifies reversal of the trial court. Phillips v. State, 321 Ark. 160, 900 S.W.2d 526 (1995). The sentence imposed does not indicate prejudice but was within applicable statutory parameters and commensurate with the nature of the offenses committed. I cannot say that upon remand the sentence imposed could be appreciably different. The abstract contains no record of appellant having objected to the sentence at the time of its imposition.

The court's statements regarding the rules of evidence were at best not artful and at worst misstatements of law. There is no question as to the applicability of the rules of evidence to the sentencing phase of bifurcated criminal trials. They do apply. Hill v. State, 318 Ark. 408, 413, 887 S.W.2d 275 (1994). As we stated in Hill, "The introduction of evidence during this stage must be governed by our rules of admissibility and exclusion; otherwise, these proceedings would not pass constitutional muster, which is all the more reason to permit appeal." While the applicability of the evidence rules is clear, the meaning of the trial court's statements is not.

Neither of the court's statements are precise enough for us to know with certainty what meaning the court ascribed to them but to the extent they indicate that the rules of evidence would not apply in this defendant's sentencing hearing they were in error. However, it is apparent from the record that the court did apply the rules of evidence during the hearing. On all occasions appearing in the record, the court entertained and, when requested, ruled on evidentiary issues where raised.[1] Rather than an abandonment of the rules it is much more plausible that the court intended to apply the rules and yet permit victims and their families to express themselves freely regarding the negative consequences of appellant's actions. The statute authorizing victim-impact statements permits testimony regarding the effects of the crime on the victim, the circumstances surrounding the crime, and the manner in which the crime was perpetrated. Ark. Code Ann. § 16-90-1112 (1987). This is constitutionally permissible. According to the U.S. Supreme Court, " 'as a general proposition, a sentencing judge may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come.' " Nichols v. United States, 511 U.S. 738,747 (1994) (quoting United States v. Tucker, 404 U.S. 443, 446 (1972).

Furthermore, it is not at all certain that the court made a definitive ruling that the rules were not going to be applied. If appellant had any doubt about the rules' applicability an objection would have been in order. Objections are intended to apprise the court of error in order to obtain an appropriate ruling or to preserve an argument for appeal. Brown v. State, 326 Ark. 56, 931 S.W.2d 80 (1996). Apparently, appellant assumed that the rules would be applied as he continued to make objections on these same and on other grounds for evidentiary issues subsequent to these remarks by the court.

I disagree that the testimony of Dorothy Stocks regarding Joe, Barbara, and Heather Stocks was irrelevant. The Stockses were the immediate family of appellant's victim, Heath Stocks. Appellant contends testimony concerning these persons was irrelevant because they are deceased and were not victims of the appellant. The portion of testimony appellant refers to went as follows:

PROSECUTOR: Let me ask you particularly about the Joe Stocks family.

WITNESS: Yes.

PROSECUTOR: Your son, Joe, was a college graduate.

WITNESS: Yes.

PROSECUTOR: As was Barbara.

WITNESS: No, Barbara — Bonnie Gail is. Our daughter.

PROSECUTOR: Your daughter is a college graduate?

WITNESS: Yes.

PROSECUTOR: How were Joe and Barbara employed?

WITNESS: Joe had a — his own trucking business, and Barbara held down two jobs. She worked at the school, and she also worked at the Lonoke County Extension Office. And to do this, Joe worked awful hard, and Barbara did, too, to provide their children with the best that they could furnish them.

PROSECUTOR: If you will, tell me a little bit about Heather.

WITNESS: Heather was an exceptionally bright girl. She —

MR. ALEXANDER: Your Honor, could we approach?

THE COURT: Yes.

This testimony was background information related to one of the victim's family life. The witness made no mention of the Stockses' family deaths. She made no effort to disparage appellant but merely recounted family history to help make meaningful a victim's experience. That particular victim had been raped and abused by appellant repeatedly over at least nine years. He also testified on his own behalf and was subject to cross-examination. Based upon this family background, Dorothy Stocks and witness Annie Mae Harris testified about how the victim suffered for reasons they could not discern, of how he changed and how the family suffered as the victim tried to carry the burden of the severe abuse he dared not and could not bring himself to mention. Their testimony was relevant to appellant's sentencing to the extent it related directly to familial consequences flowing from Walls's sexual violation of their grandson. Given this context, I cannot say the trial judge abused his discretion in allowing the background testimony.

It is apparent from the record in this case that appellant's sentencing hearing was handled less than optimally by both bench and bar. Appellant's counsel did not object, as the majority notes, to testimony from Reverend Marble regarding the Stockses' deaths. Additionally, appellant's own counsel's cross-examination of victim Heath Stocks deals directly with the issue of responsibility for the Stockses' murders. Numerous other times potentially inadmissible evidence was entered without objection. In order to gain reversal of the trial court, appellant carries the burden of demonstrating that the trial court committed prejudicial error. I do not believe he has done so. I therefore, respectfully dissent.

GLAZE and CORBIN, JJ., join.


  1. Tr. 235, Tr. 239, Tr. 242-245, Tr. 255, Tr. 260, Tr. 265-266, Tr. 267-269, Tr. 271, Tr. 275-276, Tr. 283, Tr. 299-300, Tr. 304-305, Tr. 314-315, Tr. 321-322, Tr. 323-327, Tr. 341, Tr. 358-359, Tr. 397, Tr. 408-409, Tr. 423-424, and Tr. 442-443.