Miskelley v. State
Annotate this Case
Jessie Lloyd MISSKELLEY, Jr. v. STATE of
Arkansas
CR 94-848 ___ S.W.2d ___
Supreme Court of Arkansas
Opinion delivered February 19, 1996
1. Appeal & error -- appeal of criminal conviction -- review of
sufficiency -- general rule. -- It is the general rule that,
where an appellant challenges the sufficiency of the evidence
on appeal of a criminal conviction, the appellate court
addresses that issue before all others.
2. Motions -- directed-verdict motion defined -- substantial
evidence defined. -- A directed-verdict motion is a challenge
to the sufficiency of the evidence; the test for determining
the sufficiency of the evidence is whether there is
substantial evidence to support the jury's verdict;
substantial evidence is that which is forceful enough to
compel a conclusion one way or another and which goes beyond
speculation or conjecture; the appellate court reviews the
evidence in the light most favorable to the appellee and
considers only the evidence that supports the verdict.
3. Jury -- determination of credibility -- free to believe part
of evidence and reject other parts. -- Where inconsistencies
appear in the evidence, the appellate court defers to the
jury's determination of credibility; a jury is free to believe
part of the evidence before it and reject other parts.
4. Criminal law -- "purposely" defined. -- Under Ark. Code Ann.
5-2-202(1) (Repl. 1993), a person acts purposely with
respect to his conduct or a result thereof when it is his
conscious object to engage in conduct of that nature or to
cause such a result.
5. Criminal law -- murder -- intent usually inferred from
circumstances. -- In cases of murder, a defendant's intent is
seldom capable of proof by direct evidence; it must usually be
inferred from the circumstances of the killing.
6. Criminal law -- accomplice liability -- factors. -- A
defendant may be found guilty not only of his own conduct, but
also the conduct of his accomplice; where two or more persons
assist one another in the commission of a crime, all are
accomplices and criminally liable for each other's conduct;
the following factors are relevant in determining the
connection of an accomplice with the crime: presence of the
accused in the proximity of a crime, opportunity, and
association with a person involved in the crime in a manner
suggestive of joint participation.
7. Criminal law -- accomplice liability -- mere presence,
acquiescence, silence, or knowledge not sufficient -- when
conviction will be upheld. -- Mere presence, acquiescence,
silence, or knowledge that a crime is being committed, in the
absence of a legal duty to act, is not sufficient to make a
person an accomplice; where, however, the State establishes
evidence that the accused purposefully aided in the commission
of the crime, a conviction for first-degree murder based on
accomplice liability will be upheld.
8. Criminal law -- accomplice liability -- substantial evidence
that appellant purposely aided and facilitated commission of
first-degree murder. -- The supreme court concluded that the
jury's decision to convict appellant of a greater offense in
the death of one of the victims indicated that much importance
was placed on appellant's chasing down the boy and returning
him to the scene where brutal beatings and sexual assaults
were taking place; such an act was highly suggestive of joint
participation in the crime; there was also evidence that
appellant knew the night before the murders that his two
accomplices were going to "get some boys" and hurt them; the
supreme court noted that appellant's participation in bizarre
cult activities with his accomplices, while not conclusive of
intent standing alone, reinforced the probability of his
participation in such brutal murders; finally, appellant's
detailed knowledge of the injuries inflicted on the boys
suggested that he was in physical proximity to the activities
taking place and took a much more active role than he
admitted; the jury was not required to give credence to the
appellant's contention that, for the most part, he was merely
an observer; the supreme court concluded that there was
substantial evidence the appellant purposely aided and
facilitated his accomplices in the commission of first-degree
murder and held that there was sufficient evidence to support
his conviction.
9. Criminal procedure -- confessions -- review of voluntariness -
- factors. -- Where the voluntariness of a confession is at
issue, the supreme court makes an independent determination of
voluntariness based upon the totality of the circumstances
surrounding the confession and does not reverse the trial
court's finding of voluntariness unless it is clearly against
the preponderance of the evidence; among the factors to be
considered in determining the validity of a confession are the
age, education and intelligence of the accused, the advice or
lack of advice on constitutional rights, the length of
detention, the repeated or prolonged nature of questioning, or
the use of mental or physical punishment.
10. Criminal procedure -- confessions -- custodial confession
presumed involuntary. -- A custodial confession is presumed
involuntary and the burden is on the State to show that the
confession was voluntarily made.
11. Criminal procedure -- confessions -- false promise of reward
or leniency invalidates confession -- no evidence appellant's
confession obtained in such a manner. -- A confession obtained
through a false promise of reward or leniency is invalid;
however, there was no evidence that the appellant's confession
was obtained in such a manner; despite the use of a circle
diagram to encourage appellant to respond to questions, there
was no implication that if the appellant talked the officers
would recommend leniency or try to help him in any way;
likewise, the existence of a monetary reward did not
invalidate the confession; although their testimony was
disputed, the police officers testified at the suppression
hearing that they did not communicate the reward offer to the
appellant at any time, and the trial judge was entitled to
believe this evidence.
12. Criminal procedure -- confessions -- age and mental capacity
alone are not sufficient to suppress confession. -- While age
and mental capacity are factors considered in determining
voluntariness, they are not, standing alone, sufficient to
suppress a confession.
13. Criminal procedure -- confessions -- youth alone not
sufficient to exclude confession. -- At the time appellant was
interrogated he was seventeen years old, and just thirty-seven
days away from his eighteenth birthday; persons younger than
he have been held capable of giving voluntary confessions.
14. Criminal procedure -- confessions -- low intelligence quotient
alone will not render confession involuntary. -- Although
evidence indicated that appellant's intelligence quotient was
72 and that he read at a third-grade level, a low score on an
intelligence-quotient test does not mean that a suspect is
incapable of voluntarily making a confession or waiving his
rights.
15. Criminal procedure -- confessions -- appellant repeatedly
advised of his rights -- no stranger to criminal-justice
system. -- Appellant, who was nearly eighteen years old when
he made his confession, was advised of his rights, both
verbally and in writing, on three separate occasions over the
course of four hours; there was evidence that, between 1988
and 1992, he had been advised of his rights in juvenile
proceedings on three occasions; appellant was no stranger to
the criminal-justice system, a factor that the supreme court
has considered in the past.
16. Criminal procedure -- confessions -- four-hour interrogation
not undue -- officers' persistent questioning was permissible
-- no evidence of mental or physical punishment. -- Between
the first time appellant was advised of his rights and the
time he gave his first statement, a period of just over four
hours elapsed, which was not undue; the officers' questioning
was persistent, but that was permissible; there was no
evidence of mental or physical punishment.
17. Criminal procedure -- confessions -- police may use some
psychological techniques so long as accused's free will is not
completely overborne -- numerous factors pointed to
voluntariness of confession. -- The police may use some
psychological tactics in eliciting a custodial statement so
long as the accused's free will is not completely overborne;
police use of a circle diagram symbolizing those who committed
the murders and those who were trying to solve the crime, a
polygraph examination, and a picture of the victim did not
invalidate the confession; the supreme court observed,
however, that the tactic of playing a tape recording of a
boy's voice saying "Nobody knows what happened but me" came
perilously close to psychological overbearing, and the court
could not condone its use; in this instance, however, because
numerous other factors pointed to the voluntariness of the
confession, the supreme court would not invalidate the
confession.
18. Criminal procedure -- confessions -- trial judge's
determination of voluntariness was correct -- waiver of rights
was voluntary. -- After an independent review of the foregoing
factors, the supreme court concluded that the trial judge's
determination of voluntariness was correct; the appellate
court was also convinced, based upon the same facts, that
appellant's waiver of his rights was voluntary, knowing, and
intelligent; when the supreme court analyzes the validity of
a rights waiver, it looks to many of the same factors used in
determining the voluntariness of a confession.
19. Criminal procedure -- confessions -- juveniles -- failure to
obtain parent's signature on waiver form does not render
confession inadmissible -- requirement of parental consent
limited to juvenile-court proceedings. -- At the time the
appellant signed his waiver, Ark. Code Ann. 9-27-317(f)
(Repl. 1993) provided that a juvenile's waiver form must be
signed by a parent, guardian, or custodian; where a person
under age eighteen is charged as an adult in circuit court,
failure to obtain a parent's signature on a waiver form does
not render a confession inadmissible; when a juvenile is
charged as an adult, he becomes subject to the procedures
applicable to adults; the requirement of parental consent is
limited to juvenile-court proceedings.
20. Constitutional law -- statutes presumed constitutional -- when
classifications permitted. -- On appellate review, the supreme
court presumes that a statute is constitutional, and the
attacking party has the burden of proving otherwise; all
doubts are resolved in favor of constitutionality;
classifications are permitted that have a rational basis and
are reasonably related to a legitimate government purpose; the
supreme court's role is not to discover the actual basis for
the legislation, but to consider whether any rational basis
exists that demonstrates the possibility of a deliberate nexus
with state objectives so that the legislation is not the
product of utterly arbitrary and capricious government
purpose.
21. Constitutional law -- statutes -- rationale for distinction
between rights accorded those tried in juvenile court and
those tried as adults. -- The supreme court concluded that a
rationale could be found for a distinction between the rights
accorded those tried in juvenile court and those tried as
adults that would remove Ark. Code Ann. 9-27-317(f) (Repl.
1993) from the specter of arbitrary and capricious government
purpose, namely that a juvenile over the age of sixteen who
commits a crime that would subject him to adult punishment
will not be accorded the protection of full parental
involvement in the interrogation process.
22. Criminal procedure -- warning to persons asked to appear at
police station. -- Arkansas Rule of Criminal Procedure 2.3
requires an officer who asks a person to come to a police
station to take reasonable steps to make it clear that there
is no legal obligation to comply with the request.
23. Appeal & error -- objections must be raised in timely manner.
-- Objections must be raised in a timely manner.
24. Appeal & error -- issue precluded from appellate review where
there is no clear ruling by trial court. -- An issue is
precluded from review on appeal where there is no clear ruling
by the trial court; where appellant obtained rulings on the
voluntariness of his confession and his waiver, but no ruling
on his illegal seizure, the supreme court did not consider the
issue.
25. Criminal procedure -- confessions -- failure of police to
record entire interrogation -- not required by Arkansas law --
considered as factor -- did not invaldate confession. --
Although appellant attacked the failure of the police to
record the interrogation in its totality, no Arkansas law
requires such a procedure; the supreme court will consider
such a factor in the totality-of-the-circumstances mix but
will not invalidate a confession for that reason alone.
26. Constitutional law -- statutes -- accomplice testimony --
rationale for greater safeguards where appellant's conviction
is based on testimony of third person. -- Arkansas Code
Annotated 16-89-111(e)(1) (1987) provides that a conviction
may not be had on the testimony of an accomplice unless
corroborated by other evidence tending to connect the
appellant with the commission of the offense; there is a
legitimate rationale for greater safeguards where an
appellant's conviction is based on the testimony of a third
person rather than on his own words.
27. Discovery -- denial of -- discretion of trial court -- policy
considerations regarding depositions of police officers -- no
abuse of discretion. -- Where the trial court offered to make
the interrogating officers available for questioning but would
not require them to submit to depositions, the supreme court
declared that it does not reverse for failure to grant
discovery in a criminal case without a showing of abuse of
discretion; public-policy considerations dictate that
depositions of police officers should not be taken as a matter
of routine, but only in rare cases, subject to the trial
court's discretion; a defendant's discovery needs are
ordinarily met by the broad access given to him by the rules
of criminal procedure; the supreme court found nothing in the
record to indicate that the trial court had abused its
discretion in denying the depositions.
28. Evidence -- trial court accorded wide discretions in rulings.
-- A trial court is accorded wide discretion in evidentiary
rulings and will not be reversed on such rulings absent a
manifest abuse of discretion.
29. Evidence -- polygraph tests -- results not admissible. --
Where appellant argued that his proffered evidence concerning
the results of his polygraph test was necessary to apprise the
jury of the totality of the circumstances surrounding his
confession, the supreme court reasserted its long-standing
rule prohibiting the admission of polygraph results.
30. Evidence -- trial court's exclusion of polygraph results
upheld. -- The supreme court, noting the unreliability of
polygraph tests, upheld the trial court's exclusion of
evidence of the results of appellant's polygraph examination.
31. Evidence -- expert testimony -- witness not allowed to refer
to interview with appellant -- no prejudicial violation of
Ark. R. Evid. 703. -- Where appellant's expert in the coercive
influence of police interrogation techniques was allowed to
offer an opinion that the tactics used by the West Memphis
Police were suggestive and led the appellant to make his
statements but was not permitted to refer to a three-hour
interview he had conducted with appellant, appellant argued
that the trial court erred, citing Ark. R. Evid. 703 for the
proposition that an expert must be able to reveal the factual
bases for his opinions; the supreme court held that appellant
had not shown that he was prejudiced under Rule 703 by the
court's ruling, noting that the expert was allowed to identify
all other matters on which he based his opinion, such as the
transcripts of appellant's statements, appellant's treatment
records, the officers' notes, and the officers' testimony;
additionally, during cross-examination, the expert was asked
whether he had formed a preliminary opinion regarding the
coercive nature of the interrogation, and he answered that his
opinion at that point was "based on the materials available to
me which included my having interviewed Jessie Misskelley";
the jury was thus informed that the expert had interviewed
appellant and had used that interview as a basis for his
opinion.
32. Evidence -- expert testimony -- "suggestibility" test results
-- appellant not prejudiced by trial court's refusal to allow
-- witness allowed to offer opinion. -- Where the trial court
refused to allow evidence of a suggestibility test
administered, admittedly for the first time, by a psychologist
who, as appellant's expert witness, was allowed to offer his
opinion and who, further, informed the court that his opinion
would not be altered by the absence of test results, the
supreme court concluded that appellant could not show that he
was prejudiced by the court's ruling; the supreme court does
not reverse in the absence of prejudice.
33. Evidence -- relevant evidence defined -- trial court's ruling
on relevancy given great weight. -- Relevant evidence is any
evidence having the tendency to make the existence of any fact
that is of consequence to the determination of the action more
probable or less probable than it would be without the
evidence; a trial court's ruling on relevancy is entitled to
great weight and will be reversed only for an abuse of
discretion.
34. Evidence -- every item of challenged evidence corroborated
some aspect of appellant's confession -- evidence offered by
the State to corroborate other evidence is relevant. -- The
supreme court held that every item of evidence challenged by
appellant as irrelevant served to corroborate some aspect of
appellant's confession; evidence that is offered by the State
to corroborate other evidence is relevant.
35. Evidence -- any corroboration of confession was highly
probative -- ruling admitting evidence upheld. -- The supreme
court rejected appellant's argument that the challenged
evidence was more unfairly prejudicial than probative; with
the confession being the State's only meaningful evidence
against the appellant, any corroboration was highly probative;
this was especially true in light of appellant's contention
that his confession was false; the prejudicial effect of the
evidence was not so high as to outweigh its important
probative value, and the supreme court deferred to the sound
discretion of the trial judge and upheld his ruling admitting
the evidence.
36. Trial -- jury instructions -- AMCI 401 matched statutory
language -- no error to refuse proffered non-AMCI instruction.
-- If an Arkansas Model Criminal Instruction is available on
a subject, a non-AMCI instruction should not be used unless
the AMCI does not state the law; where the trial court
instructed the jury on accomplice liability using AMCI 401,
which matched the language contained in Ark. Code Ann. 5-2-
403(a) (Repl. 1993) and was a proper statement of the law, it
was not error to refuse appellant's proffered instruction.
37. Trial -- jury instructions -- failure to instruct on lesser-
included offense is harmless error where jury convicted
defendant of greater offense. -- Failure to instruct on a
lesser-included offense is harmless error where a jury has
been instructed on some lesser-included offense yet has
convicted the defendant of a greater offense.
38. Trial -- jury instructions -- proper to refuse instruction if
not supported by rational basis -- no rational basis for
manslaughter instruction. -- It is proper to refuse an
instruction on manslaughter if there is no rational basis to
support it; appellant, who asked for a manslaughter
instruction on the chance that the jury might consider his
conduct reckless, as opposed to purposeful or knowing, was
fully aware of the magnitude of the crimes to which he was an
accomplice; he was fully aware of the severe beating, cutting,
and sexual molestation of the victims; his retrieval of the
boy who tried to escape was evidence of an overall state of
mind which far exceeded the "gross deviation from the standard
of care" involved in reckless conduct; the supreme court held
that there was no rational basis for a manslaughter
instruction.
39. Criminal law -- motion for new trial -- newly dicovered
evidence -- grounds for reversal. -- Newly discovered evidence
is the least-favored ground for a new-trial motion; where a
new trial is denied on this ground, the supreme court will
reverse only for an abuse of discretion; to prevail, appellant
must show that the new evidence would have impacted the
outcome of his case and that he used due diligence in trying
to discover the evidence.
40. Criminal law -- motion for new trial -- newly discovered
evidence -- appellant did not use due diligence in trying to
discover most of evidence. -- Although appellant used due
diligence in seeking an opinion from the medical examiner
regarding time of death, the same could not be said of the
evidence regarding the use of a knife and the scene of the
murders, which was brought out in the accomplices' trial on
cross-examination; the supreme court determined that appellant
did not show that, prior to his conviction, he could not have
discovered such evidence.
41. Criminal law -- motion for new trial -- newly discovered
evidence -- medical examiner's opinion would not have had
impact on trial's outcome -- trial court did not abuse its
discretion in denying new trial. -- The supreme court
concluded that the medical examiner's opinion concerning time
of death would not have had an impact on the outcome of
appellant's trial because appellant's statements were already
filled with mistakes, inconsistencies, and gross inaccuracies
regarding the time that the murders took place, and it was
obvious that the jury disregarded appellant's time estimates,
as it was their right to do; under the circumstances, the
supreme court held that the trial court did not abuse its
discretion in denying appellant's motion for a new trial.
Appeal from Clay Circuit Court; David Burnett, Judge;
affirmed.
Stidham & Crow, by: Daniel T. Stidham and Gregory L. Crow, for
appellant.
Winston Bryant, Att'y Gen., by: J. Brent Standridge, Asst.
Att'y Gen., for appellee.
Bradley D. Jesson, Chief Justice. February 19, 1996 *ADVREP1*
JESSIE LLOYD MISSKELLEY, JR.,
APPELLANT,
V.
STATE OF ARKANSAS,
APPELLEE,
CR94-848
APPEAL FROM THE CLAY COUNTY
CIRCUIT COURT,
NO. CR93-47,
HON. DAVID BURNETT, JUDGE,
AFFIRMED.
CHIEF JUSTICE BRADLEY D. JESSON
On June 21, 1993, the appellant, Damien Echols, and Charles
Jason Baldwin were charged with the murders of three West Memphis
boys. Steven Branch, Christopher Byers, and Michael Moore, all
eight years of age, had been missing since the early evening hours
of May 5, 1993. Their bodies were found the next day submerged in
a creek in a park-like area of West Memphis known as Robin Hood.
The boys' bodies were nude, their hands and feet had been tied, and
it was evident they had been severely beaten and mutilated.
The West Memphis Police began an extensive investigation. On
June 3, 1993, they questioned the appellant regarding any knowledge
he might have about the murders. In the course of the
interrogation, he made statements in which he implicated himself,
Baldwin, and Echols. All three were arrested and charged with
capital murder.
The appellant was tried separately from Baldwin and Echols.
The jury convicted him of first-degree murder in the death of
Michael Moore, for which he received a life sentence, and second
degree murder in the deaths of Steven Branch and Christopher Byers,
for which he received a combined sentence of 40 years. It is from
these convictions that he appeals. He raises numerous and varied
points for reversal. After thorough consideration of each issue,
we find no error and affirm the convictions.
Sufficiency of the Evidence
It is our general rule that, when an appellant challenges
the sufficiency of the evidence, we address that issue prior to all
others. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). The
appellant's argument is directed solely to his first-degree murder
conviction.
At the close of the state's case, and again at the close of
all evidence, the appellant moved for a directed verdict. He
claimed that the state failed to prove he had acted with the
purpose of causing the deaths of the three boys, or that he had
acted as an accomplice to the commission of a homicidal act. The
trial court denied the motion.
A directed-verdict motion is a challenge to the sufficiency of
the evidence. Durham v. State, 320 Ark. 689, 899 S.W.2d 470
(1995). The test for determining the sufficiency of the evidence
is whether there is substantial evidence to support the jury's
verdict. Substantial evidence is that which is forceful enough to
compel a conclusion one way or another and which goes beyond
speculation or conjecture. Davis v. State, 317 Ark. 592, 879 S.W.2d 439 (1994). We review the evidence in the light most
favorable to the appellee and consider only that evidence which
supports the verdict. Moore v. State, 315 Ark. 131, 864 S.W.2d 863
(1993).
The Moore, Byers, and Branch boys were last seen at
approximately 6:00 p.m. on May 5, 1993. At least two of the boys
were riding their bicycles. Their parents reported them missing at
about 8:00 p.m. Police and area residents conducted a search later
that evening, but the boys were not found. The search continued on
May 6. The boys' bodies were discovered about 1:15 that afternoon.
On June 3, 1993, the crime having remained unsolved, Detective
Sergeant Mike Allen sought the appellant out for questioning. The
appellant was not considered a suspect, but it was thought he might
have knowledge about Damien Echols, who was a suspect. Detective
Allen located the appellant and brought him back to the station,
arriving at approximately 10:00 a.m. Later in this opinion, we
will address in detail the circumstances surrounding the
appellant's interrogation. For now, it is sufficient to say that
the appellant was questioned off and on over a period from 10:00
a.m. until 2:30 p.m. At 2:44 p.m. and again at approximately 5:00
p.m., he gave statements to police in which he confessed his
involvement in the murders. Both statements were tape-recorded.
The statements were the strongest evidence offered against the
appellant at trial. In fact, they were virtually the only
evidence, all other testimony and exhibits serving primarily as
corroboration.
The statements were obtained in a question-and-answer format
rather than in a narrative form. However, we will set out the
substance of the statements in such a way as to reveal with clarity
the appellant's description of the crime:
In the early morning hours of May 5, 1993, the appellant
received a phone call from Jason Baldwin. Baldwin asked
the appellant to accompany him and Damien Echols to the
Robin Hood area. The appellant agreed to go. They went
to the area, which has a creek, and were in the creek
when the victims rode up on their bicycles. Baldwin and
Echols called to the boys, who came to the creek. The
boys were severely beaten by Baldwin and Echols. At
least two of the boys were raped and forced to perform
oral sex on Baldwin and Echols. According to appellant,
he was merely an observer.
While these events were taking place, Michael Moore tried
to escape and began running. The appellant chased him
down and returned him to Baldwin and Echols. The
appellant also stated that Baldwin had used a knife to
cut the boys in the facial area and that the Byers boy
was cut on his penis. Echols used a large stick to hit
one of the boys. All three boys had their clothes taken
off and were tied up.
According to the appellant, he ran away from the scene at
some point after the boys were tied up. He did observe
that the Byers boy was dead when he left. Sometime after
the appellant arrived home, Baldwin called saying, "we
done it" and "what are we going to do if somebody saw
us." Echols could be heard in the background.
The appellant was asked about his involvement in a cult.
He said he had been involved for about three months. The
participants would typically meet in the woods. They
engaged in orgies and, as an initiation rite, killing and
eating dogs. He noted that at one cult meeting, he saw
a picture that Echols had taken of the three boys. He
stated that Echols had been watching the boys.
The appellant was also asked to describe what Baldwin and
Echols were wearing the day of the murders. Baldwin was
wearing blue jeans, black lace-up boots and a T-shirt
with a rendering of a skull and the name of the group
Metallica on it. Echols was wearing black pants, boots
and a black T-shirt.
The appellant initially stated that the events took place
about 9:00 a.m. on May 5. Later in the statement, he
changed that time to 12:00 noon. He admitted that his
time periods might not be exactly right. He explained
the presence of the young boys by saying they had skipped
school that day.
The first tape recorded statement concluded at 3:18 p.m. At
approximately 5:00 p.m., another statement was recorded.
This time, the appellant said he, Echols and Baldwin had
come to the Robin Hood area between 5:00 and 6:00 p.m.
Upon prompting by the officer, he changed that to 7:00 or
8:00 p.m. He finally settled on saying that his group
arrived at 6:00 p.m. while the victims arrived near dark.
He went into further detail about the sexual molestation
of the victims. At least one of the boys had been held
by the head and ears while being accosted. Both the
Byers boy and the Branch boy had been raped. All the
boys, he said, were tied up with brown rope.
One of the interrogating officers later testified that his
notes revealed the appellant told him he received a phone call from
Baldwin on the night before the murders. Baldwin stated that they
planned to go out and get some boys and hurt them.
The appellant's statements are a confusing amalgam of times
and events. Numerous inconsistencies appear, the most obvious
being the various times of day the murders took place.
Additionally, the boys were not tied with rope, but with black and
white shoe laces. It was also revealed that the victims had not
skipped school on May 5. However, there were portions of the
statements which were consistent with the evidence and were
corroborated by the state's testimony and exhibits. The victims
had been seen riding their bicycles. The medical examiner
testified that the boys had been severely beaten. Two of them had
injuries consistent with being hit by a large object. One of the
boys had facial lacerations. The Byers boy had indeed been
severely mutilated in the genital area. All the boys had injuries
which were consistent with rape and forced oral sex. There was
evidence that drowning contributed to the deaths of the Moore and
Branch boys, but not the Byers boy. This is consistent with the
appellant's statement that the Byers boy was already dead when he
left the scene. The boys were in fact tied up, albeit with shoe
laces rather than rope. Damien Echols was observed near the crime
scene at 9:30 p.m. on May 5. He was wearing black pants and a
black shirt and his clothes were muddy. A witness testified that
she had attended a satanic cult meeting with Echols and the
appellant. Steven Byers's mother testified that, approximately two
months before the murders, her son told her that a man dressed all
in black had taken his picture. There was evidence that Baldwin
owned a shirt and boots of the type described by the appellant.
Finally, a witness from the State Crime Lab testified that she
found fibers on the victims' clothing which were microscopically
similar to items in the Baldwin and Echols residences.
The appellant does not argue that the inconsistencies in his
statements render them insufficient. Indeed, when inconsistencies
appear in the evidence, we defer to the jury's determination of
credibility. A jury is free to believe part of the evidence before
it and reject other parts. Harris v. State, 294 Ark. 484, 743 S.W.2d 822 (1988); Thomas v. State, 266 Ark. 162, 583 S.W.2d 32
(1979). However, the gravamen of this issue is whether the
evidence contained in the statements supports a verdict of first-
degree murder.
The appellant argues that he did not possess the requisite
state of mind for the crime. The jury was instructed that they
could find the appellant guilty of first-degree murder if they
found he acted with the purpose of causing the death of one of the
victims. This is consistent with the language of Ark. Code Ann.
5-10-102(a)(2) (Repl. 1993). The jury was also instructed on
accomplice liability as follows:
In this case, the state does not contend that Jessie
Lloyd Misskelley, Junior acted alone in the commission of
the offense of three counts of capital murder. A person
is criminally responsible for the conduct of another
person when he is an accomplice in the commission of an
offense. 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 an offense
agrees to aid, aids, or attempts to aid the other person
or persons in the planning or committing the offense.
This instruction is consistent with AMCI 401 and Ark. Code
Ann. 5-2-403(a)(2) (Repl. 1993).
A person acts purposely with respect to his conduct or a
result thereof when it is his conscious object to engage in conduct
of that nature or to cause such a result. Ark. Code Ann. 5-2-
202(1) (Repl. 1993). In cases of murder, a defendant's intent is
seldom capable of proof by direct evidence. It must usually be
inferred from the circumstances of the killing. Williams v. State,
321 Ark. 635, 906 S.W.2d 677 (1995).
A defendant may be found guilty not only of his own conduct,
but also the conduct of his accomplice. When two or more persons
assist one another in the commission of a crime, all are
accomplices and criminally liable for each other's conduct. Purifoy
v. State, 307 Ark. 482, 822 S.W.2d 374 (1991). The following
factors are relevant in determining the connection of an accomplice
with the crime: presence of the accused in the proximity of a
crime, opportunity, and association with a person involved in the
crime in a manner suggestive of joint participation. Id. Mere
presence, acquiescence, silence, or knowledge that a crime is being
committed, in the absence of a legal duty to act, is not sufficient
to make a person an accomplice. Fight v. State, 314 Ark. 438, 863 S.W.2d 800 (1993) (supplying intoxicant to one who later commits
manslaughter does not support accomplice liability for
manslaughter). However, where the state establishes evidence that
the accused purposefully aided in the commission of the crime, a
conviction for first-degree murder based on accomplice liability
will be upheld. Riggins v. State, 317 Ark. 636, 882 S.W.2d 664
(1994).
The jury's decision to convict the appellant of a greater
offense in the death of Michael Moore indicates that much
importance was placed on the appellant's chasing down the boy and
returning him to the scene where brutal beatings and sexual
assaults were taking place. Such an act is highly suggestive of
joint participation in the crime. There was also evidence that the
appellant knew the night before the murders that Baldwin and Echols
were going to "get some boys" and hurt them. His participation in
bizarre cult activities with Baldwin and Echols, while not
conclusive of intent standing alone, reinforces the probability of
his participation in such brutal murders. Finally, the appellant's
detailed knowledge of the injuries inflicted on the boys suggests
that he was in physical proximity to the activities taking place
and took a much more active role than he admitted. The jury was
not required to give credence to the appellant's contention that,
for the most part, he was merely an observer. Riggins v. State,
supra.
We conclude that there is substantial evidence the appellant
purposely aided and facilitated his accomplices in the commission
of first-degree murder and therefore find sufficient evidence to
support his conviction.
Voluntariness of Confession
Prior to trial, the appellant moved to suppress his
confessions on the grounds that they were not voluntarily given,
that his waiver of Miranda rights was not made voluntarily,
knowingly and intelligently, and that his waiver of rights was
invalid because it was obtained without his parent's signature (the
appellant was seventeen at the time he was interrogated).
The testimony at the suppression hearing revealed the
following sequence of events leading up to the appellant's
confessions. Approximately one month into the investigation, the
police considered Damien Echols a suspect in the murders, but no
arrests had been made. The appellant's name had been given to
officers as one who participated in cult activities with Echols.
Detective Sergeant Mike Allen questioned the appellant on the
morning of June 3, 1993. The appellant was not considered a
suspect at that time.
Detective Allen attempted to locate the appellant at home, but
was unsuccessful. He found the appellant's father at his work
place and told him he wanted to talk to the appellant. Mr.
Misskelley, Sr., said he would find the appellant and bring him to
the work place. When the appellant arrived, Detective Allen asked
him if he could come with him to the police department to talk
about the case. The appellant readily accompanied Allen. He was
not handcuffed and rode in the front seat of the car.
The two arrived at the station at approximately 10:00 a.m.
Detective Allen and Detective Bryn Ridge questioned the appellant
for about an hour when they became concerned that he wasn't telling
the truth. In particular, he denied participation in the cult
activity, a statement which was at odds with what other witnesses
had said. At this point, the detectives decided to advise the
appellant of his rights. Detective Allen read him a form entitled
"YOUR RIGHTS," and verbally advised him of the Miranda rights
contained in the form. The appellant responded verbally that he
understood his rights and also initialled each component of the
rights form. There was no evidence of any promises, threats or
coercion.
The form also contained a section entitled "WAIVER OF RIGHTS,"
which read as follows:
I have read this statement of my RIGHTS and I understand
what my RIGHTS are. I am willing to make a statement and
answer questions. I do not want a lawyer at this time.
I understand and know what I am doing, no promises or
threats have been made to me and no pressure or force has
been used against me.
The waiver was signed by the appellant.
After he was advised of his rights and had waived them, the
appellant was asked if he would take a polygraph examination. He
agreed that he would. Detective Allen took the appellant to look
for his father so that his father could grant permission for the
appellant to take the polygraph. They observed Mr. Misskelley
driving on the same road they were on, stopped him, and received
the authorization. There was no evidence of promises, threats or
coercion.
Upon returning to the station, Detective Bill Durham, who
would administer the polygraph, once again explained the
appellant's rights to him. The appellant verbally indicated he
understood, and initialled and signed a second rights-and-waiver
form that was identical to the first.
Detective Durham explained to the appellant how the polygraph
would work and administered the test over the course of one hour.
In Detective Durham's opinion, the appellant was being deceptive in
his answers and he was advised that he had failed the test. At
that point, the appellant became nonresponsive.
Detective Bryn Ridge and Inspector Gary Gitchell began another
interrogation of the appellant at about 12:40 p.m. They employed
a number of techniques designed to elicit a response from the
appellant. A circle diagram was drawn and the appellant was told
that the persons who committed the murders were inside the circle
and that those trying to solve the crime were on the outside. He
was asked whether he was going to be inside the circle or outside.
He apparently had no response. He was then shown a picture of one
of the victims and had a strong reaction to it. According to
Gitchell, the appellant sank back into his chair, grasped the
picture and would not take his eyes off it. Yet, he still did not
speak. Finally, Gitchell played a portion of a tape-recorded
statement which had been given by a young boy named Aaron. The boy
was the son of a friend of the appellant's and had known the
victims. The portion of the statement which the officers played
was the boy's voice saying, "nobody knows what happened but me."
Upon hearing this, the appellant stated that he wanted out and
wanted to tell everything.
The officers decided to tape-record a statement and received
the confessions which are set out above. At the beginning of the
first statement, on tape, the appellant was advised of his rights
for the third time. The rights were fully explained to him, and
the waiver of rights read to him verbatim.
The evidence presented by the appellant at the suppression
hearing consisted primarily of the testimony of polygraph expert
Warren Holmes. Mr. Holmes testified that, in his opinion, the
appellant had not been deceptive in his answers to the polygraph
questions. He raised the possibility that the appellant had been
wrongly informed that he had failed.
Seven days after the suppression hearing, the trial court
entered an order denying the motion to suppress. The appellant
argues that the court's ruling was erroneous.
When the voluntariness of a confession is in issue, we make an
independent determination of voluntariness based upon the totality
of the circumstances surrounding the confession. We do not reverse
a trial court's finding of voluntariness unless it is clearly
against the preponderance of the evidence. Douglas v. State, 286
Ark. 296, 692 S.W.2d 217 (1985). Among the factors to be
considered in determining the validity of a confession are the age,
education and intelligence of the accused, the advice or lack of
advice on constitutional rights, the length of detention, the
repeated or prolonged nature of questioning, or the use of mental
or physical punishment. Id. A custodial confession is presumed
involuntary and the burden is on the state to show that the
confession was voluntarily made. Noble v. State, 319 Ark. 407, 892 S.W.2d 477 (1995).
The appellant offers several reasons why we should invalidate
his confession. First, he argues that the confession was the
product of a promise of reward or leniency. He points to the use
of the circle diagram, which he describes as an implied offer of
leniency, and to the existence of a $30,000.00 reward which was in
effect at the time the appellant was questioned. A confession
obtained through a false promise of reward or leniency is invalid.
Hamm v. State, 296 Ark. 385, 757 S.W.2d 932 (1988). However, there
is no evidence that the appellant's confession was obtained in such
a manner. The circle diagram, while used to encourage the
appellant to respond to questions, cannot be considered as a false
promise of leniency. There was no implication that if the
appellant talked the officers would recommend leniency or try to
help him in any way. Likewise, the existence of a monetary reward
does not invalidate the confession. Although their testimony was
disputed, the officers testified at the suppression hearing that
they did not communicate the reward offer to the appellant at any
time. The trial judge was entitled to believe this evidence.
Everett v. State, 316 Ark. 213, 871 S.W.2d 568 (1994).
Next, the appellant argues that his age and mental capacity
rendered his confession involuntary. While age and mental capacity
are factors we consider, those factors standing alone are not
sufficient to suppress a confession. Mitchell v. State, 295 Ark.
341, 750 S.W.2d 936 (1988); Douglas v. State, supra.
At the time the appellant was interrogated he was seventeen
years old, and just thirty-seven days away from his eighteenth
birthday. Persons younger than he have been held capable of giving
voluntary confessions. Oliver v. State, 322 Ark. 8, ___ S.W.2d ___
(1995) (fifteen-year old); Douglas v. State, supra (fifteen-year
old); Smith v. State, 286 Ark. 247, 691 S.W.2d 154 (1985) (sixteen-
year old); Hunes v. State, 274 Ark. 268, 623 S.W.2d 835 (1981),
cert. denied, ___ U.S. ___, 115 S. Ct. 134 (1994) (sixteen-year
old). The appellant also points to evidence that his IQ was 72 and
that he read at a third-grade level. A low score on an
intelligence-quotient test does not mean that a suspect is
incapable of voluntarily making a confession or waiving his rights.
Oliver v. State, supra; Hart v. State, 312 Ark. 600, 852 S.W.2d 312
(1993); Hill v. State, 303 Ark. 462, 798 S.W.2d 65 (1990). Oliver
is particularly on point. There, we held that a fifteen-year old
with an IQ of 74 and a second-grade reading level was capable of
comprehending his Miranda rights and of waiving those rights. The
appellant's situation is similar. In fact, he was two years older
than Oliver and had a slightly higher reading level.
As we have pointed out, the appellant was nearly eighteen-
years old when his confession was made. He was advised of his
rights, both verbally and in writing, on three separate and
distinct occasions over the course of four hours. There was
evidence that, between 1988 and 1992, he had been advised of his
rights in juvenile proceedings on three occasions. He was no
stranger to the criminal justice system, a factor which we have
considered in the past. Lowe v. State, 309 Ark. 463, 830 S.W.2d 864 (1992). Between the first time the appellant was advised of
his rights and the time he gave his first statement, a period of
just over four hours elapsed, which is not undue. The officers'
questioning was persistent, but that is permissible. Noble v.
State, 319 Ark. 407, 892 S.W.2d 477 (1995). There was no evidence
of mental or physical punishment.
The appellant argues that his statements should be suppressed
because of the techniques used by the police in questioning him.
He is referring in particular to the use of the circle diagram, the
polygraph, the picture of the victim, and the tape recording of the
boy's voice. We have said that police may use some psychological
tactics in eliciting a custodial statement so long as the accused's
free will is not completely overborne. Noble v. State, supra. In
Noble, we held that showing the accused a picture of the victim and
telling him he would not pass a polygraph didn't invalidate a
confession. The circle diagram is a rather innocuous means of
getting an accused to talk. It does not have any features which
strike us as overbearing. The tape of the boy's voice gives us
pause. This is the type of tactic that comes perilously close to
psychological overbearing, and we cannot condone its use. However,
in this instance, since numerous other factors point to the
voluntariness of the confession, we will not invalidate the
confession.
After an independent review of the foregoing factors, we
conclude that the trial judge's determination of voluntariness was
correct. We are likewise convinced, based upon the same facts,
that the appellant's waiver of his rights was voluntary, knowing,
and intelligent. When we analyze the validity of a rights waiver,
we look to many of the same factors used in determining the
voluntariness of a confession. See Bryant v. State, 314 Ark. 130,
862 S.W.2d 215 (1993); Hart v. State, supra.
The appellant's next attack on the validity of his confession
concerns the failure to have a parent sign his waiver-of-rights
form. At the time the appellant signed his waiver, Ark. Code Ann.
9-27-317(f) (Repl. 1993) provided that a juvenile's waiver form
must be signed by a parent, guardian, or custodian. We addressed
this issue most recently in Ring v. State, 320 Ark. 128, 894 S.W.2d 944 (1995). We held that, when a person under age eighteen is
charged as an adult in circuit court, failure to obtain a parent's
signature on a waiver form does not render a confession
inadmissible. The issue was first addressed in Boyd v. State, 313
Ark. 171, 853 S.W.2d 263 (1993). That opinion was delivered on May
17, 1993, seventeen days before the appellant was interrogated. We
held unequivocally that, when a juvenile is charged as an adult, he
becomes subject to the procedures applicable to adults. Therefore,
the requirement of parental consent is limited to juvenile court
proceedings. The appellant urges us to overrule Boyd and its
progeny, but it would be the height of unfairness for us to tell
the prosecutors and law enforcement officials of this state that a
parental signature was not necessary, then declare nearly three
years later that lack of such a signature was fatal to an accused's
confession. This is especially true in light of the fact that we
reaffirmed Boyd in Ring and in the interim case of Rhoades v.
State, 315 Ark. 658, 869 S.W.2d 698 (1994). We therefore decline
the invitation to overrule this line of cases.
The appellant further argues that the distinction between the
rights accorded to those who are tried in juvenile court and those
who are tried as adults violates the Equal Protection Clause. On
appellate review, we presume that a statute is constitutional, and
the attacking party has the burden of proving otherwise. All
doubts are resolved in favor of constitutionality. Reed v. Glover,
319 Ark. 16, 889 S.W.2d 729 (1994). Classifications are permitted
which have a rational basis and are reasonably related to a
legitimate government purpose. Our role is not to discover the
actual basis for the legislation, but to consider whether any
rational basis exists which demonstrates the possibility of a
deliberate nexus with state objectives so that the legislation is
not the product of utterly arbitrary and capricious government
purpose. Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983).
We can certainly conceive of a rationale which removes this
statute from the specter of arbitrary and capricious government
purpose. The legislature recognized in Ark. Code Ann. 9-27-
318(c) (Repl. 1993) that a juvenile over the age of sixteen may be
prosecuted as an adult where his act would constitute a felony if
committed by an adult. This is an acknowledgement that an older
juvenile who commits a serious crime may not receive the protection
of juvenile proceedings, but will face the consequences as an
adult. The same rationale applies to the statute at hand. A
juvenile over the age of sixteen who commits a crime that would
subject him to adult punishment will not be accorded the protection
of full parental involvement in the interrogation process.
The appellant next contends that his confession should have
been suppressed due to the failure of Detective Allen to comply
with Ark. R. Crim. P. Rule 2.3. That rule requires an officer who
asks a person to come to a police station to take reasonable steps
to make it clear that there is no legal obligation to comply with
the request.
This issue arose in a unique procedural way at the trial
level. The appellant never raised the point in his motions to
suppress or at any time during the suppression hearing. During the
suppression hearing, Detective Allen testified that he asked the
appellant if he would come with him to the station and the
defendant voluntarily did so. However, the state, at this point,
was unaware of any Rule 2.3 problem, and no further testimony was
elicited. After the suppression hearing, the appellant, in a post-
hearing brief, raised the issue for the first time.
We recognize that the state has the burden of proving the
voluntariness of a custodial confession. However, we are hesitant
to hold that a defendant may file a general motion to suppress,
containing no notice of any technical deficiency, then require the
state to put on evidence of compliance with all conceivable
technical requirements of the Rules of Criminal Procedure. This is
totally contrary to our rule that objections must be raised in a
timely manner. Edwards v. State, 321 Ark. 610, 906 S.W.2d 310
(1995). However, just as importantly, the appellant did not obtain
a ruling from the trial court on this specific issue. The court's
order denying the motion to suppress was drafted by appellant's
counsel. It declared that appellant's statements were voluntarily
given, that the appellant was afforded his rights under the
Constitution, that his rights were knowingly and willfully waived.
There is no mention in the order, or during the course of any
hearing, of a violation of Rule 2.3. An issue is precluded from
review on appeal where there is no clear ruling by the trial court.
Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995). In Bowen, the
appellant moved to suppress his inculpatory statements on the
grounds that his waiver of rights was invalid, his waiver was not
voluntary, knowing, and intelligent, and his statements were the
fruit of an illegal arrest. The trial court ruled generally on the
waiver questions, but did not specifically rule on the illegal-
arrest issue. We therefore declined to consider the issue on
appeal. Similarly in this case, the appellant obtained rulings on
the voluntariness of his confession and his waiver, but no ruling
on his illegal seizure. As in Bowen, we will not consider the
issue.
The appellant's final attack on the validity of his confession
concerns the failure of the police to record the interrogation in
its totality. No Arkansas law requires this. We will consider
such a factor in the totality-of-the-circumstances mix, but we will
not invalidate a confession for that reason alone.
Pre-Trial Matters
Before we move on to consideration of trial errors, there are
two issues which arose before trial and which we will now discuss.
The first is the appellant's challenge to the constitutionality of
Ark. Code Ann. 16-89-111(d) (1987). The statute reads:
A confession of a defendant, unless made in open court,
will not warrant a conviction unless accompanied by other
proof that the offense was committed.
The appellant contrasts this statute with Ark. Code Ann. 16-
89-111(e)(1) (1987) which provides that a conviction may not be had
on the testimony of an accomplice unless corroborated by other
evidence tending to connect the appellant with the commission of
the offense. While offering no authority in support, he argues
that the more stringent corroboration requirements in the case of
accomplice testimony violate the equal protection clause. The same
analysis we applied to the appellant's previous equal-protection
challenge applies here. There is a legitimate rationale for
greater safeguards when an appellant's conviction is based on the
testimony of a third person rather than on his own words.
The next issue concerns the appellant's attempt to depose the
interrogating officers. The court offered to make the officers
available for questioning, but would not require them to submit to
depositions. We do not reverse for failure to grant discovery in
a criminal case without a showing of abuse of discretion. Sanders
v. State, 276 Ark. 342, 635 S.W.2d 222 (1982); Ark. R. Crim. P.
Rule 17.4. In Spencer v. State, 285 Ark. 339, 686 S.W.2d 436
(1985) and Hoggard v. State, 277 Ark. 117, 640 S.W.2d 102 (1982),
cert. denied, 460 U.S. 1022 (1983), we held that a defendant was
not necessarily entitled to take the discovery depositions of state
witnesses. We have never held that a defendant should be allowed
to depose interrogating officers. The public-policy considerations
alone dictate that depositions of police officers should not be
taken as a matter of routine, but only in rare cases, subject to
the trial court's discretion. A defendant's discovery needs are
ordinarily met by the broad access given to him by the Rules of
Criminal Procedure. We find nothing in the record of this case to
indicate that the trial court abused its discretion in denying the
depositions.
Evidentiary Errors
The next issues concern various evidentiary rulings of the
trial court. We note at the outset that a trial court is accorded
wide discretion in evidentiary rulings and will not be reversed on
such rulings absent a manifest abuse of discretion. Harris v.
State, 295 Ark. 456, 748 S.W.2d 666 (1988).
As we alluded to earlier, the appellant procured the services
of polygraph expert Warren Holmes. Holmes was prepared to offer an
opinion that the appellant was not being deceptive when the
polygraph test was administered to him. The appellant asked the
court to allow this opinion into evidence to show that he was
falsely informed he had failed the test and that such false
information was a catalyst to his confession. The court considered
the evidence at the suppression hearing, but refused to allow any
testimony at trial regarding the results of the polygraph. The
court noted that such evidence would simply amount to a contest
between two experts as to who had made the more accurate
interpretation. The court said it would allow the appellant to
show that he had been administered a polygraph and had been told he
failed it. However, the appellant understandably declined this
offer, fearing it might be too prejudicial in the absence of the
countervailing opinion of Holmes.
Both the legislature and this court have recognized the
inherent unreliability of polygraph tests. Ark. Code Ann. 12-12-
704 (Repl. 1995), provides that the results of a psychological
stress examination shall not be admissible in the courts of this
state. See also Cogburn v. State, 292 Ark. 564, 732 S.W.2d 807
(1987); Baxter v. Dental Examiners Bd., 269 Ark. 67, 598 S.W.2d 412 (1980). However, the appellant argues that his proffered
evidence was necessary to apprise the jury of the totality of the
circumstances surrounding his confession. We believe our long-
standing rule prohibiting the admission of polygraph results should
prevail. Had the trial judge allowed Mr. Holmes to offer his
opinion that the appellant's answers were not deceptive, the state
would have offered the opinion of Detective Durham that the
appellant's answers were deceptive. This would have created the
very situation which the legislature and the courts have sought to
avoid: the likelihood of credibility determinations being made by
reference to the unreliable results of a polygraph examination.
See generally Wingfield v. State, 303 Ark. 291, 796 S.W.2d 574
(1990).
The appellant cites us to Rock v. Arkansas, 483 U.S. 44 (1987)
for the proposition that evidence which might ordinarily be
considered unreliable is admissible to protect a defendant's
constitutional rights. Rock involved a defendant who testified in
her own behalf and wanted to offer hypnotically refreshed
testimony. The Supreme Court allowed the evidence, but the Court's
ruling is not applicable to this case. Rock only applies to the
testimony of the defendant, not to witness testimony. Further, the
basis of the ruling was the protection of the defendant's right to
testify in her own defense, which is not the issue here.
The appellant also cites Patrick v. State, 295 Ark. 473, 750 S.W.2d 391 (1988) for the proposition that evidence which may not
be admissible to prove a person guilty is admissible as exculpatory
evidence. Patrick involved the use of a portable breath test. We
held that such a test could not be used to prove a person drove
while intoxicated but could be used to prove that he did not.
However, we were careful to make the point that such a test was
sufficiently reliable to warrant admission into evidence. As we
have already stated, that is not the case with polygraph results.
We therefore uphold the trial court's exclusion of this evidence.
The next point concerns the testimony of Dr. Richard Ofshe, an
expert in the coercive influence of police interrogation
techniques. Dr. Ofshe was allowed to offer an opinion that the
tactics used by the West Memphis Police were suggestive and led the
appellant to make his statements. As part of the basis for his
opinion, Dr. Ofshe relied on the transcript of a three-hour
interview he had conducted with the appellant. The court refused
to allow the witness to refer to the interview. The appellant
argues that this was error and cites A.R.E. Rule 703 for the
proposition that an expert must be able to reveal the factual bases
for his opinions. The appellant has not shown that he was
prejudiced by the court's ruling. The expert was allowed to
identify all other matters on which he based his opinion, such as
the transcripts of the appellant's statements, the appellant's
treatment records, the officers' notes, and the officers'
testimony. Additionally, during cross-examination, Dr. Ofshe was
asked if, before hearing the officers testify, he had formed a
preliminary opinion regarding the coercive nature of the
interrogation. He answered that his opinion at that point was
"based on the materials available to me which included my having
interviewed Jessie Misskelley." The jury was thus informed that
Dr. Ofshe had interviewed the appellant and had used that interview
as a basis for his opinion. Therefore, we find no prejudicial
violation of Rule 703.
The appellant also presented the testimony of a psychologist,
Dr. William Wilkins, for the purpose of showing that his confession
was the product of coercion. Dr. Wilkins offered his opinion that
the appellant was "quite suggestible." The doctor had administered
a suggestibility test to the appellant based upon the Gudjonsson
suggestibility scale. The court held a hearing on the
admissibility of the test results. Dr. Wilkins admitted he had
never administered the test before. The state called another
psychologist, Dr. Vaughn Rickert, to testify that he had never
heard of the test and, based on what he had just been informed, he
had serious concerns about its validity. The court refused to
allow evidence of the test results, citing its unreliability and
Dr. Wilkins' lack of experience in administering it.
Again, the appellant cannot show he was prejudiced by the
court's ruling. Dr. Wilkins was allowed to offer his opinion.
Further, he informed the court that his opinion would not be
altered by the absence of the test results. We will not reverse in
the absence of prejudice. Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), cert. denied, 470 U.S. 1085 (1985).
The final evidentiary issues can be discussed together. The
appellant argues that the following evidence was erroneously
admitted because it was either irrelevant, or its probative value
was outweighed by its unfairly prejudicial effect: 1) a picture of
Jason Baldwin wearing a black T-shirt with a skull and the name of
the group Metallica on it; 2) testimony of a witness that she
attended a cult meeting with the appellant and Echols; 3) a book on
witchcraft found in Echols' home; 4) the testimony of Melissa
Byers that her son told her that a man wearing black had taken his
picture; 5) fiber evidence linking Baldwin and Echols to the crime;
6) boots worn by Baldwin and Echols; and 7) testimony that Echols
was observed near the crime scene on the night of the murder.
Relevant evidence means any evidence having the tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it
would be without the evidence. A.R.E. Rule 401. A trial court's
ruling on relevancy is entitled to great weight and will be
reversed only for an abuse of discretion. Dixon v. State, 311 Ark.
613, 846 S.W.2d 170 (1993). As the appellant has taken pains to
point out, the credibility of his confession was the linchpin of
the case. Every item of evidence listed above served to
corroborate some aspect of the appellant's confession: the
description of Baldwin's shirt, the involvement in the occult, the
fact that Echols had photographed the victims and had been watching
them, and the fact that Echols and Baldwin were involved in the
crime. Evidence which is offered by the state to corroborate other
evidence is relevant. Crow v. State, 306 Ark. 411, 814 S.W.2d 909
(1991); Hooks v. State, 303 Ark. 236, 795 S.W.2d 56 (1990).
The appellant's argument that the evidence was more unfairly
prejudicial than probative must also fail. With the confession
being the state's only meaningful evidence against the appellant,
any corroboration was highly probative. This is especially true in
light of the appellant's contention that his confession was false.
The prejudicial effect of the evidence was not so high as to
outweigh its important probative value. We defer to the sound
discretion of the trial judge and uphold his ruling admitting the
evidence. Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988).
Jury Instructions
The appellant requested two instructions which were not given
by the court. The first instruction concerned accomplice
liability, and read as follows:
An accomplice is criminally responsible for the acts of
others only to the extent he has shared criminal purpose
with the others. If you ultimately find that Jessie
Lloyd Misskelley, Jr. was an accomplice, you may find him
guilty only of a crime you determine that he had a
conscious object to engage in, or a conscious object to
cause such a result.
The appellant based his proffered instruction on language from
Fight v. State, supra.
The court instructed the jury on accomplice liability using
AMCI 401. If an AMCI is available on the subject, a non-AMCI
instruction should not be used unless the AMCI does not state the
law. Henderson v. State, 284 Ark. 493, 684 S.W.2d 231 (1985).
AMCI 401 matches the language contained in Ark. Code Ann. 5-2-
403(a) (Repl. 1993) and is a proper statement of the law.
Therefore it was not error to refuse the appellant's proffered
instruction. See Hill v. State, 318 Ark. 408, 887 S.W.2d 275
(1994).
The appellant also claims it was error for the court to refuse
to instruct the jury on manslaughter. The jury was instructed on
capital murder, first-degree murder and second-degree murder. We
note at the outset that the appellant cannot obtain reversal of his
first-degree murder conviction on this issue. Failure to instruct
on a lesser-included offense is harmless error where a jury has
been instructed on some lesser-included offense, yet convicted the
defendant of a greater one. Gidron v. State, 316 Ark. 352, 872 S.W.2d 64 (1994).
It is proper to refuse an instruction on manslaughter if there
is no rational basis to support it. Allen v. State, 310 Ark. 384,
838 S.W.2d 346 (1992); Watson v. State, 290 Ark. 484, 720 S.W.2d 310 (1986). The appellant asked for the instruction on the chance
that the jury might consider his conduct reckless, as opposed to
purposeful or knowing. See Ark. Code Ann. 5-10-104(a)(3) (Repl.
1993). Reckless conduct requires the state of mind of conscious
disregard of a perceived risk. Disregard of the risk must
constitute a gross deviation from the standard of care that a
reasonable person would observe in the situation. See Ark. Code
Ann. 5-2-202(3) (Repl. 1993). By his own words, the appellant
was fully aware of the magnitude of the crimes to which he was an
accomplice. He was fully aware of the severe beating, cutting, and
sexual molestation of the victims. His retrieval of the boy who
tried to escape is evidence of an overall state of mind which far
exceeds "gross deviation from the standard of care." We hold that
there was no rational basis for a manslaughter instruction.
Motion for New Trial
The appellant moved for a new trial on the ground of newly
discovered evidence. The motion was denied by the trial court. It
was based on the testimony of the medical examiner, Dr. Frank
Peretti.
On two occasions before trial, appellant's counsel asked Dr.
Peretti if he had an opinion on time of death. Dr. Peretti stated
that he did not. However, after the appellant's trial was
concluded, Dr. Peretti testified at the Baldwin/Echols trial that
his estimate of time of death was between 1:00 a.m. and 5:00 p.m.
on May 6, 1993. The appellant moved for a new trial claiming that
this newly discovered evidence cast doubt on the validity of his
confession. He also claimed that, at the Baldwin/Echols trial, Dr.
Peretti offered testimony that lack of blood at the scene indicated
the victims might have been killed elsewhere and that the type of
cuts in Steven Byers's genital area would require some skill and
precision.
Newly discovered evidence is the least-favored ground for a
new-trial motion. When a new trial is denied on this ground, we
will reverse only for an abuse of discretion. Bennett v. State,
307 Ark. 400, 821 S.W.2d 13 (1991). To prevail, the appellant must
show that the new evidence would have impacted the outcome of his
case, and that he used due diligence in trying to discover the
evidence. Newberry v. State, 262 Ark. 334, 557 S.W.2d 864 (1977).
The appellant used due diligence in seeking an opinion from
Dr. Peretti regarding time of death. The same cannot be said of
the other evidence. The evidence regarding the use of the knife
and the scene of the murders was brought out in the Baldwin/Echols
trial on vigorous cross-examination. The appellant has not shown
that, prior to his conviction, he could not have discovered such
evidence.
The question regarding Dr. Peretti's opinion is whether it
would have impacted the outcome of the trial. We think it would
not have. The appellant's statements were already filled with
mistakes, inconsistencies, and gross inaccuracies regarding the
time that the murders took place. It is obvious that the jury
disregarded the appellant's time estimates, as it was their right
to do. Dr. Peretti's opinion could only have served to reinforce
what the jury already knew: the appellant was either mistaken or
not telling the truth regarding the timing of events on May 5.
Based upon the foregoing, we find that the trial court did not
abuse its discretion in denying the new trial.
Compliance with Rule 4-3(h)
The record has been reviewed in accordance with Arkansas
Supreme Court Rule 4-3(h), and it has been determined that there
were no errors with respect to rulings on objections or motions
prejudicial to the appellant not discussed above.
Affirmed.
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