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SUPREME COURT OF ARKANSAS
STATE OF ARKANSAS,
APPEAL FROM THE WASHINGTON
COUNTY CIRCUIT COURT,
HON. WILLIAM A. STOREY, JUDGE,
ANNABELLE CLINTON IMBER, Associate Justice
Appellant Fernando Navarro was convicted in Washington County Circuit Court
of the following criminal offenses: first-degree murder, aggravated robbery, residential
burglary, and felony theft of property. The circuit court sentenced him to two
consecutive life sentences for the crimes of first-degree murder and aggravated robbery, as
well as five years and three years in prison for the offenses of residential burglary and
felony theft of property, respectively. On appeal, Navarro raises seven points of error. As
this is a criminal appeal in which a sentence of life imprisonment has been imposed, our
jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(b)(2) (2007). We find no error and affirm.
On Thanksgiving Day in 2004, Navarro and his co-defendant, Michael
Chavez, agreed to rob an apartment they expected to be unoccupied. Upon discovering
the victim, David Edwards, in the apartment, Navarro began to punch him with his fists
and stab him with a knife. After the knife broke, he stabbed Edwards with a screwdriver.
Navarro also beat the victim with a dumbbell and strangled him with a cord. Chavez
poured a hot pot of beans onto the victim. The medical examiner’s report later revealed
that the causes of death were blunt force head injuries, multiple sharp force injuries, and
scalding burns on the victim’s head. A neighbor observed Navarro and Chavez removing
several large items of property from the apartment and identified the car into which they
were loading the items as a white Dodge Shadow. That car was later stopped for a traffic
violation. Both men were inside the car, and Chavez was arrested for driving while
intoxicated; but, because the homicide had not yet been discovered, Navarro was released.
Shortly thereafter, the stolen property was dumped into a lake.
The following day, after the homicide was discovered, Navarro responded to
a request by law enforcement that he report to the police department for questioning. He
initially denied any involvement in the crimes but eventually confessed to hitting, kicking,
and stabbing the victim. Navarro claimed that his friend Chavez was not involved but
happened to be driving near the apartment building and offered him a ride. During the
interview, Navarro stated that he could not remember any details because he had been
intoxicated. For example, he could not remember what objects he used to stab the victim
or what items of property he loaded into the car. When asked if he thought that he killed
David Edwards, Navarro responded, “Probably, yeah.” At the conclusion of the
interview, Navarro was arrested.
At trial, Navarro asserted the defense of not guilty by reason of mental
disease or defect. The jury heard testimony from experts on both sides and rejected the
I. Sufficiency of the Evidence
Navarro claims his convictions should be reversed because of the lack of any
fingerprints or other forensic evidence tying him to any of the murder weapons or stolen
property. He also points out that he only admitted to hitting and kicking the victim and
possibly inflicting some non-fatal stab wounds. Double jeopardy considerations require
this court to consider a challenge to the sufficiency of the State’s evidence prior to the
other issues raised in the case. See Holsombach v. State, 368 Ark. 415, __ S.W.3d __
Our standard of review for a sufficiency challenge is well settled. We treat a
motion for directed verdict as a challenge to the sufficiency of the evidence. Cluck v. State,
365 Ark. 166, 226 S.W.3d 780 (2006). This court has repeatedly held that in reviewing a
challenge to the sufficiency of the evidence, we view the evidence in a light most
favorable to the State and consider only the evidence that supports the verdict. Id. We
affirm a conviction if substantial evidence exists to support it. 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.
Furthermore, circumstantial evidence may provide a basis to support a conviction,
but it must be consistent with the defendant’s guilt and inconsistent with any other
reasonable conclusion. Id. Whether the evidence excludes every other hypothesis is left
to the jury to decide. Id. The credibility of witnesses is an issue for the jury and not the
court. 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.
With regard to the charges of aggravated robbery, residential burglary, and theft of
property, Navarro was convicted as an accomplice. When a theory of accomplice liability
is implicated, we affirm a sufficiency-of-the-evidence challenge if substantial evidence
exists to show that the defendant acted as an accomplice in the commission of the alleged
offense. Wilson v. State, 365 Ark. 664, __ S.W.3d __ (2006). We have said that there is
no distinction between principals on the one hand and accomplices on the other, insofar as
criminal liability is concerned. Id. When two people assist one another in the commission
of a crime, each is an accomplice and criminally liable for the conduct of both. Id. One
cannot disclaim accomplice liability simply because he did not personally take part in every
act that went to make up the crime as a whole. Id.
a. Residential Burglary
A person commits residential burglary if he enters or remains unlawfully in a
residential occupiable structure of another with the purpose of committing in the structure
any offense punishable by imprisonment. Ark. Code Ann. § 5-39-201(a)(1) (Repl. 2006).
Chavez testified that he and Navarro went to the victim’s apartment with the purpose of
committing theft. He also testified that Navarro popped the lock with a card. This
evidence amply satisfies the elements of residential burglary.
Navarro nonetheless asserts that there is no forensic evidence tying him to the
stolen property. This argument is without merit. The State presented proof that he
unlawfully entered the apartment with the purpose of committing theft, an offense
punishable by imprisonment. Moreover, the statute does not require that property
actually be stolen. See Ark. Code Ann. § 5-39-201(a)(1) (Repl. 2006). Accordingly, we
conclude there is substantial evidence to support the jury’s verdict on the residentialburglary charge.
b. First-Degree Murder
A person commits murder in the first degree if he commits or attempts to commit a
felony and, in the course and furtherance of the felony or in immediate flight from the
felony, he or an accomplice causes the death of another person under circumstances
manifesting extreme indifference to the value of human life. Ark. Code Ann. § 5-10102(a)(1) (Repl. 2006). The State alleged in this case that the underlying felony was
burglary, as defined in Ark. Code Ann. § 5-39-201 (Repl. 2006).
We have already concluded that the jury’s verdict on the burglary charge is
supported by substantial evidence. Likewise, we conclude that Navarro’s murder
conviction under the felony-murder statute is supported by substantial evidence.
Specifically, the evidence is sufficient for the jury to conclude that Navarro caused the
death of David Edwards. He admitted to hitting, kicking, and stabbing the victim.
According to the autopsy report, these actions are consistent with two of the three causes
of death – blunt force injuries to the head and multiple sharp force injuries. Furthermore,
a knife blade was found at the crime scene, and a matching handle was later found in the
driveway of the house where Navarro lived. Police also seized a screwdriver, which was
consistent with the victim’s wounds, from Navarro’s bedroom. Items of clothing that
were determined to be stained with the victim’s blood were seized from his bedroom as
well. We conclude that these facts are more than enough to support the jury’s verdict.
Alternatively, a person commits murder in the first degree if, with a purpose of
causing the death of another person, he causes the death of another person. Ark. Code
Ann. § 5-10-102(a)(2) (Repl. 2006). A person acts purposely with respect to his conduct
or as a result of his conduct when it is his conscious object to engage in conduct of that
nature or to cause the result. Ark. Code Ann. § 5-2-202(1) (Repl. 2006).
As stated earlier, there is ample evidence to support the jury’s conclusion that
Navarro caused the death of David Edwards. With regard to the remaining mental-state
element under section 5-10-102(a)(2), Navarro asserted the defense of mental disease or
defect, but this issue was not raised in the directed-verdict motions. Furthermore, his
arguments challenging the sufficiency of the evidence – the lack of forensic evidence and
his statement that he merely punched, kicked, and stabbed the victim – are also without
merit. Navarro’s statement to the investigating officer indicated that his conscious object
was to cause the death of David Edwards. While he stated that he did not mean to kill the
victim, the balance of his statement reflects otherwise. This court has held that intent is
seldom capable of proof by direct evidence. Walker v. State, 324 Ark. 106, 918 S.W.2d
172 (1996). Usually it must be inferred from the circumstances of the killing. Id. The
intent necessary for first-degree murder may be inferred from the type of weapon used, the
manner of its use, and the nature, extent, and location of the wounds. Id. In the instant
case, Navarro stabbed David Edwards several times with a knife and a screwdriver, beat
him with dumbbells, and hit and kicked him repeatedly in the face. The jury could
reasonably infer from this evidence that Navarro purposely intended to cause the victim’s
death. It is axiomatic that one is presumed to intend the natural and probable
consequences of his actions. Id. We conclude that the evidence is sufficient to support a
conviction of first-degree murder under sections 5-10-102(a)(1) and 5-10-102(a)(2).
c. Aggravated Robbery
A person commits robbery if, with the purpose of committing a felony or
misdemeanor theft or resisting apprehension immediately after committing a felony or
misdemeanor theft, the person employs or threatens to immediately employ physical force
upon another person. Ark. Code Ann. § 5-12-102(a) (Repl. 2006). A robbery is
aggravated if the person is armed with a deadly weapon, represents by word or conduct
that he is armed with a deadly weapon, or inflicts or attempts to inflict death or serious
physical injury upon another person. Ark. Code Ann. § 5-12-103 (Repl. 2006).
Once again, Chavez testified that he and Navarro had a purpose of committing
theft when they went to the apartment. Navarro admitted, and the discovery of the knife
handle, screwdriver, and bloodied clothes confirmed, that he used physical force upon
David Edwards and that he was armed with a deadly weapon. His continued assertion that
he was not forensically linked to any stolen property or to any of the murder weapons is
irrelevant. The theft statute does not require that property actually be stolen. See Ark.
Code Ann. § 5-12-102(a) (Repl. 2006). Similarly, a murder weapon is not required to
enhance robbery to aggravated robbery. See Ark. Code Ann. § 5-12-103 (Repl. 2006).
The recovery of the knife handle and screwdriver from Navarro’s home is sufficient proof
that he was armed with a deadly weapon. Accordingly, the jury’s verdict on the
aggravated robbery charge is supported by substantial evidence.
d. Theft of Property
A person commits theft of property if he knowingly takes or exercises unauthorized
control over, or makes an unauthorized transfer of an interest in, the property of another
person, with the purpose of depriving the owner of the property. Ark. Code Ann. § 536-103(a)(1) (Repl. 2006 & Supp. 2007). Navarro challenges the sufficiency of the
evidence on the theft conviction by asserting that there were no fingerprints on the stolen
property. His argument is unavailing.
In his statement to the investigating officer, Navarro admitted removing property
from the apartment. Chavez testified that he and Navarro loaded property from the
apartment into the car after the homicide. Another witness, Sarah Overton, testified that
she observed Chavez and Navarro carry out a television and load it into the car, and that
she saw several items of property already in the car. A neighbor testified that he saw two
males removing property from the apartment. The police officer who arrested Chavez for
driving while intoxicated observed several items in the car that matched the description of
the stolen property. Thus, there is sufficient evidence from which to conclude that
Navarro took the property of another person, with the purpose of depriving the owner of
II. The Affirmative Defense of Mental Disease or Defect
A defendant bears the burden of proving the affirmative defense of mental disease
or defect by a preponderance of the evidence. Davis v. State, 368 Ark. 401, __ S.W.3d __
(2007). On appeal, our standard of review of a jury verdict rejecting the defense of mental
disease or defect is whether there is any substantial evidence to support the verdict.
Morgan v. State, 333 Ark. 294, 971 S.W.2d 219 (1998). This court will affirm a jury’s
verdict if there is any substantial evidence to support it. Id.
Navarro argues on appeal that he submitted evidence at trial that satisfied his
burden of proof on the affirmative defense of mental disease or defect. He also argues that
the standard by which this court reviews jury verdicts on the issue of mental disease or
defect is an insurmountable burden. Our court’s standard of review, according to
Navarro, should be changed to one of reasonableness, because the current standard
effectively eviscerates the rule that a defendant need only prove the defense by a
preponderance of the evidence. Specifically, Navarro suggests that the current standard
deprives defendants of a defense expressly approved by the legislature. See Ark. Code
Ann. § 5-2-312 (Repl. 2006).
At trial, the State put on the testimony of Dr. Robin Ross, a forensic psychiatrist at
the Ozark Guidance Center, which contracts with the State to do mental health
evaluations on defendants. Dr. Ross testified that Navarro showed no signs of significant
cognitive impairment or active psychiatric disease. She diagnosed Navarro with alcohol
dependence and marijuana dependence, neither of which constitutes a mental disease. She
also testified regarding Navarro’s IQ, which his own expert found to be 78. Dr. Ross
stated that such an IQ indicated “borderline intellectual functioning,” which is in the “low
average range.” She stated that, in her experience, people with that level of intellectual
functioning are generally responsible for their actions.
Navarro called Dr. Ronald McInroe, a clinical neuro-psychologist, to testify on his
behalf. Dr. McInroe spent approximately twelve to fifteen hours evaluating Navarro, as
contrasted with the one-hour evaluation by Dr. Ross. He testified that Navarro had a
learning disorder, limitations in both English and Spanish expression, and a history of two
head injuries (one of which resulted in three hours’ loss of consciousness). According to
Dr. McInroe, Navarro’s verbal IQ was 69, which falls in the mildly mentally retarded
range, and his performance IQ was 92. He opined that such a significant difference
between the two components of the IQ test is extremely atypical and usually indicates
either a head injury or a congenital abnormality. Dr. McInroe further reported that
Navarro suffers from major depression, anxiety, and auditory hallucinations. Navarro,
however, exhibited no signs of an anti-social personality disorder. Dr. McInroe also stated
that his examination was more comprehensive than the one performed by Dr. Ross.
Although medical evidence and expert testimony can be highly persuasive, the jury
is not bound to accept the opinion testimony of any witness as true or conclusive,
including the opinion testimony of experts. Davis v. State, 368 Ark. 401, __ S.W.3d __
(2007). As the sole judge of the credibility of expert witnesses, the jury has the duty to
resolve conflicting testimony regarding mental competence. Id. In the instant case, the
jury heard opinion testimony from Drs. Ross and McInroe that was totally contradictory.
The jury was entitled to believe the testimony of the State’s expert over that of the
defendant’s expert and to decide that Navarro had not proven the defense of mental
disease or defect by a preponderance of the evidence. For this reason, we decline to
overturn the jury’s verdict.
As for Navarro’s contention that our standard of review should be changed, we
note that this court has a well-settled policy of affording deference to jury verdicts. The
determination of the credibility of trial witnesses and the weighing of evidence are solely
within the province of the jury. Winston v. State, 368 Ark. 105, __ S.W.3d __ (2006). To
engage in a review based on reasonableness would invade the province of the jury. It
would, in essence, constitute a second trial on the issue, with this court, rather than the
jury, evaluating the credibility of witnesses and weighing the evidence. We are unwilling
to engage in such a review. Navarro is correct in asserting that a jury’s rejection of the
defense of mental disease or defect may be upheld even in the absence of any evidence
presented by the State on the issue. Morgan v. State, supra; Davasher v. State, 308 Ark. 154,
823 S.W.2d 863 (1992). However, this is no reason to change our existing standard of
review; it simply shows that our deference to jury verdicts is so great that the jury may
choose to reject all the evidence presented by one side on any issue. The jury, as factfinder, is entitled to decide whether a defendant has satisfied his burden of proving mental
disease or defect by a preponderance of the evidence. Accordingly, we decline to alter our
standard of review.
III. Jury Selection
Navarro next alleges that he was denied a fair trial by the administrative circuit
judge’s decision to select jury venires from lists of registered voters rather than from
enhanced lists, which include registered voters as well as licensed drivers. He asserts the
administrative circuit judge made a conscious choice to decline a method of jury selection
that would yield higher percentages of Hispanic jurors.
Navarro bases his jury-selection argument on the Sixth Amendment of the United
States Constitution. Our court has set forth the appropriate standard of review in cases
involving the interpretation of a constitutional provision. We read the laws as they are
written and interpret them in accordance with established principles of constitutional
construction. State v. Oldner, 361 Ark. 316, 206 S.W.3d 818 (2005). It is this court’s
responsibility to decide what a constitutional provision means, and a lower court’s
determination is to be reviewed de novo. Id.
It is well settled that the selection of a petit jury from a representative cross section
of the community is an essential component of the Sixth Amendment right to trial by jury.
Taylor v Louisiana, 419 U.S. 522, 95 S.Ct. 692 (1975); Danzie v. State, 326 Ark. 34, 930
S.W.2d 310 (1996). A criminal defendant is entitled to require that the State not
deliberately or systematically deny to members of his race the right to participate as jurors.
Danzie v. State, supra. The defendant, however, bears the burden of proving systematic
exclusion. Id. Once the defendant makes a prima facie showing of racial discrimination in
the jury-selection process, the burden shifts to the State to justify its procedure. Id.
This court has adhered to the standard set by the United States Supreme Court in
Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664 (1979). Danzie v. State, supra. In order to
establish a prima facie violation of the fair-cross-section requirement of the Sixth
Amendment, a defendant must show the following: 1) the group alleged to be excluded is
a distinctive group in the community, 2) the representation of this group in venires from
which the juries are selected is not fair and reasonable in relation to the number of such
persons in the community, and 3) this underrepresentation is due to systematic exclusion
of the group in the jury-selection process. Duren v. Missouri, supra. In the case at bar,
Navarro falls short of the requisite standard.
Navarro’s fair-cross-section claim rests on the following facts. The jury pool from
which Navarro’s jury was selected included only one potential juror who identified herself
as Hispanic on the questionnaires sent out by defense counsel with permission from the
circuit court. At a pretrial hearing, defense counsel proffered data based on the most
recent United States census, which indicated that approximately four percent of the
populace in Washington County identified itself as Hispanic. The premise of the
argument on appeal is that the one potential juror who identified herself as Hispanic
represented only two percent of the total number of potential jurors. Defense counsel
elicited testimony from the Washington County Circuit Clerk and her chief deputy about
the process used for summoning the venire in this case. The witnesses explained that 112
names were drawn randomly by computer from a jury pool of over 140 qualified people.
Those 112 names were placed in alphabetical order, and they were called by the clerk’s
office in that order. The first seventy-eight who responded to the telephone call were
asked to appear for jury duty. Navarro suggests that the one potential juror who identified
herself as Hispanic did not get called because her last name begins with the letter “T,” and
by the time the clerk’s office reached her name on the list, they had already obtained
seventy-eight responses. The circuit court refuted Navarro’s suggestion by pointing out
that the potential juror was not called because she was not on the randomly selected list of
The first prong of the Duren test has been satisfied here by virtue of the undisputed
fact that Hispanics make up a distinctive group in the community. With regard to the
second prong, however, Navarro’s proof is insufficient. This court has followed the
holding in Duren that the test requires a fair and reasonable representation of the distinctive
group in every venire from which juries are selected, not just the particular venire
summoned at a defendant’s trial. Danzie v. State, supra. All that has been offered in this
case is data on the number of Hispanics in Washington County and the number of
Hispanics believed to be in this particular pool. Navarro has not offered proof of the
number of Hispanics on every jury venire in Washington County. When not presented
with data as to the representation of a particular group in all jury venires in the county, we
have declined to speculate. Danzie v. State, supra. Finally, with regard to the third prong
of the Duren test, Navarro offers no real argument as to how this alleged
underrepresentation is due to systematic exclusion. He merely suggests that, if the county
used the enhanced list rather than the registered voter list to select its juries, the
percentages of Hispanics on juries would be more representative of the community.
However, the current system of summoning juries has been consistently upheld by this
court. Danzie v. State, supra. Administrative circuit judges for each county are given the
choice of using the registered voter list or the enhanced list, based on a determination of
whether the use of registered voters creates a sufficient pool to offer an adequate cross
section of the community. See Ark. Code Ann. § 16-32-303 (Supp. 2007). Our court has
been unwilling to mandate use of the enhanced list. Danzie v. State, supra.
IV. Evidentiary Rulings
For his fourth point of appeal, Navarro alleges that the circuit court erred in
refusing to enforce a subpoena issued on behalf of the defense and served on Dr. Stephen
Erickson, the medical examiner who performed the autopsy. He claims Dr. Erickson
would have testified that, at the time of death, the victim had a lethal dose of cold
medicine in his system. Navarro asserts this testimony was critical to the defense, not only
as evidence on the cause of death, but also as mitigating evidence, in that it would have
shown that the victim did not suffer or that he suffered less than he would have otherwise.
At the time of trial, Dr. Erickson was out of state, and the State’s chief medical examiner,
Dr. Charles Kokes, was called to testify on behalf of the State. Before Dr. Kokes testified,
the circuit court granted the State’s motion in limine to exclude evidence about the cold
medicine. In any event, according to the State, Dr. Kokes would have testified that the
dosage of cold medicine found in the victim’s system would not have been lethal.
Navarro now argues the circuit court erred in allowing Dr. Kokes to testify in Dr.
Erickson’s place. It is unclear from the record whether Navarro sought to have the circuit
court enforce the subpoena or grant a continuance; in either case, we find no error.
The standard of review for alleged error resulting from denial of a continuance is
abuse of discretion. Price v. State, 365 Ark. 25, 223 S.W.3d 817 (2006). Absent a showing
of prejudice by the defendant, we will not reverse the decision of a trial court. Id.
Furthermore, in discussing our standard of review for evidentiary rulings generally, we
have said that trial courts have broad discretion and that a trial court’s ruling on the
admissibility of evidence will not be reversed absent an abuse of that discretion. White v.
State, 367 Ark. 595, __ S.W.3d __ (2006).
The court shall grant a continuance only upon a showing of good cause and only
for so long as is necessary, taking into account not only the request or consent of the
prosecuting attorney or defense counsel, but also the public interest in prompt disposition
of the case. Ark. R. Crim. P. 27.3 (2007). This court has dealt before with cases of
missing witnesses. Where a doctor subpoenaed to testify at trial did not appear, the trial
court attempted to have counsel stipulate as to what his testimony would have been;
counsel would not agree. Golden v. State, 265 Ark. 99, 576 S.W.2d 955 (1979). Also,
there was no request that the case be continued because of the witness’s absence. Id.
Pursuant to Ark. R. Crim. P. 27.3 and in the interest of prompt disposition of the case, we
held the trial court did not abuse its discretion in carrying on without the doctor’s
The case at bar presents a similar situation. The parties disagreed regarding what
Dr. Erickson’s testimony would be if he were called as a witness. Navarro objected to Dr.
Kokes’ appearance as the State’s expert witness but did not specifically request that the trial
be continued until Dr. Erickson could be located. Furthermore, the toxicology report,
which apparently would have resolved the issue of whether the dosage was lethal, was not
proferred. Finally, the autopsy report signed by Drs. Erickson and Kokes, among others,
did not list the cold medicine as a cause of death. For these reasons, we cannot say that
the circuit court abused its discretion in refusing to enforce the subpoena or grant a
Navarro next argues that the circuit court abused its discretion when it refused to
grant the defense a continuance so that it could consult an expert regarding autopsy
photographs allegedly given to the defense one working day before trial. He claims the
prosecutor’s office had been telling him for over a year that there were no autopsy
photographs in this case; but, on the Friday before the trial was to begin on Tuesday, the
State indicated to defense counsel that there were autopsy photographs and that it intended
to use them at trial. Navarro asserts that he could not have obtained funding for and
consulted an expert in time for trial.
When a motion for continuance is based on a lack of time to prepare, we will
consider the totality of the circumstances. Davis v. State, 318 Ark. 212, 885 S.W.2d 292
(1994). Where a defendant argued lack of time to prepare as a result of being notified of
his trial date only ten days before trial, we upheld the trial court’s denial of a continuance
because the defendant failed to demonstrate prejudice. Id. The defendant in that case did
not specify what could have been done but for the lack of time to prepare. Id. In the
instant case, Navarro alleges he would have consulted an expert had he had sufficient time
to do so. Yet, he has made no argument as to how the inability to consult an expert
prejudiced him. Moreover, in objecting to the admission of the autopsy photographs,
Navarro noted that the causes of death were stipulated by the parties, as was the fact that
he or Chavez caused the death. We have upheld a denial of a continuance, requested due
to insufficient time to prepare, when the evidence that would have been discovered was
stipulated. Lee v. State, 326 Ark. 529, 932 S.W.2d 756 (1996). Furthermore, in view of
the totality of the circumstances, the circuit judge was correct in noting that Navarro had
four days in which he could have e-mailed the photographs to an expert he had already
consulted on other issues in the case. In light of these factors, we cannot say the circuit
court abused its discretion.
For his next point of appeal, Navarro argues that the circuit court abused its
discretion in permitting what he claims was expert testimony by a lay witness. Detective
Bryan Johnson of the Springdale Police Department, the lead investigator on the case,
testified that there was no blood found on the screwdriver recovered from Navarro’s
home. He further explained that it was not unusual to not find blood or fingerprints on
objects, even after they had been touched or penetrated into a body. Navarro objected to
that explanation on the basis that the detective was not qualified as an expert to make such
The State is correct in noting that we have previously dealt with this issue.
Robinson v. State, 353 Ark. 372, 108 S.W.3d 622 (2003). In Robinson, an investigator with
extensive experience in homicides testified that, based on his experiences with gunshot
wounds to the head, there is often very little blood loss. Id. The defendant objected to
this testimony, arguing that the investigator was not qualified as an expert. Id. This court
held that it did not need to determine the investigator’s qualifications as an expert because
the State never offered him as an expert and he was never qualified as one. Id. Rather, he
was testifying as a lay witness, and the requirements of Ark. R. Evid. 701 (2007) applied:
the testimony in the form of opinions and inferences is limited to those opinions or
inferences which are rationally based on the perception of the witness and helpful to a
clear understanding of his testimony or the determination of a fact in issue. Id. We held
that the investigator’s testimony was rationally based on his years of experience as a
homicide investigator, and that his testimony was helpful to a clear understanding of the
determination of a fact in issue, namely, whether the killer would have had to clean up a
large amount of blood. Id.
Detective Johnson’s testimony is analogous to the investigator’s testimony in
Robinson. He was not offered as an expert, nor was he qualified as one. The detective
testified as to his opinion, rationally based on his thirteen years of experience as an
investigator, which testimony was helpful to the jury’s clear understanding of his testimony
or the determination of a fact in issue. The circuit judge’s evidentiary ruling on this point
was not an abuse of discretion.
For his penultimate argument, Navarro suggests that a reference to his tattoo in the
video and transcript of his interview with the detective should have been excluded by the
circuit court. During the course of the interview, Detective Johnson inquired about
Navarro’s tattoo, which read, “L.A.” Specifically, the detective asked Navarro if he was
born there, and Navarro responded that he was. Detective Johnson then asked how long
he lived in L.A., whereupon Navarro replied, “Sixteen years.” Finally, upon being asked
if he had a lot of family and friends in L.A., Navarro answered, “I don’t know. I didn’t
know nobody.” That was the extent of the conversation on the subject. Navarro claims
the circuit court erred in refusing to excise that portion, because the tattoo is highly
suggestive of gang affiliation and, therefore, prejudicial under Ark. R. Evid. 403 (2007).
We agree with Navarro’s assertion that the United States Supreme Court has found
constitutional error where evidence of gang affiliation was admitted. Dawson v. Delaware,
503 U.S. 159, 112 S.Ct. 1093 (1992). In Dawson, however, there was a stipulation that
the defendant belonged to a prison gang. Id. In this case, Navarro offers no argument
regarding why a tattoo reading “L.A.” is suggestive of gang affiliation or activity.
Furthermore, the conversation with Detective Johnson about the tattoo sheds no light on
his contention that the tattoo is suggestive of gang affiliation.
In a case where a defendant gave a taped statement in which he was asked by the
interviewer whether he was a member of a gang, this court upheld the circuit court’s
decision to admit the evidence. Walker v. State, 313 Ark. 478, 855 S.W.2d 932 (1993). In
that case, the defendant objected to the question on the grounds of relevancy and
prejudice and moved to have it deleted from the tape. Id. There was no follow up to the
defendant’s negative response to the question, the prosecutor did not emphasize it or
suggest that the defendant was a gang member, and the question and answer were part of a
nine-page transcribed statement that was relevant as a whole. Id. We held the question
was asked in good faith and that the unfair prejudice, if any, was not so drastic as to
warrant an assignment of error. Id. Likewise, in the instant case, there was no follow up
or suggestion based on the questions and answers about the tattoo. Navarro’s statement
was transcribed over the course of fifty-eight pages, and the discussion at issue here was a
mere six lines. Based upon the brevity of the discussion in an otherwise completely
relevant statement, coupled with the fact that Navarro offers no explanation as to how the
tattoo suggests gang affiliation, we hold that the circuit court did not abuse its discretion in
refusing to exclude the reference to Navarro’s tattoo in the video and transcript of his
interview with the detective.
For his final point on appeal, Navarro contends he was prejudiced by a showing of
a video depicting his arrest. At the conclusion of his interview with Detective Johnson,
Navarro was handcuffed and arrested. A video of the entire interview was played for the
jury, and the circuit court denied Navarro’s motion to excise that portion. Navarro argues
that this ruling was an abuse of the circuit court’s discretion.
As support for his argument on this point, Navarro suggests that the video of his
arrest is analogous to appearing in court wearing prison clothing and visible shackles. We
disagree. As the State points out, a defendant appearing in court in prison clothing and
visibly shackled suggests to the jury that the defendant is a continuing threat, or that his
tendencies for violence are so great that he must be restrained at all times. A video
depicting an arrest for a crime that the jury is called upon to evaluate is not similarly
prejudicial. No juror would be surprised to learn that Navarro was handcuffed and
arrested after confessing to murder. The risk of prejudice is thus minimal.
Moreover, this court has long held that a litigant is entitled to a fair trial but not a
perfect one, because there are no perfect trials. Berna v. State, 282 Ark. 563, 670 S.W.2d
434 (1984). As we have noted, “The harmless error rules adopted by this Court and
Congress embody the principle that courts should exercise judgment in preference to the
automatic reversal for ‘error’ and ignore errors that do not affect the essential fairness of the
trial.” Id. In other words, error which is not prejudicial may be considered harmless.
Here, we cannot say that the jury’s viewing of Navarro’s arrest affected the essential
fairness of his trial. Accordingly, we hold that the circuit court did not abuse its discretion
in denying Navarro’s motion to edit the video.
V. Rule 4-3(h) Review
Pursuant to Ark. Sup. Ct. R. 4-3(h), the record in this case has been reviewed for
all objections, motions, and requests made by either party, which were decided adversely
to Navarro, and no prejudicial error has been found.