Hammock v. State
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ARKANSAS COURT OF APPEALS
JUDGE DAVID M. GLOVER
DIVISION III
CACR08-1045
May 20, 2009
APPEAL FROM THE DREW
COUNTY CIRCUIT COURT
[CR-2008-0071-3]
PHILLIP F. HAMMOCK
APPELLANT
V.
HONORABLE ROBERT BYNUM
GIBSON, JR., JUDGE
STATE OF ARKANSAS
APPELLEE
AFFIRMED
A Drew County jury found appellant, Phillip Hammock, guilty of failing to register
as a sex offender. Hammock was sentenced, as a habitual offender, to twenty-one years in
prison. On appeal, he argues that Arkansas’s sex-offender registration requirement does
not apply to him, that his conviction for failure to register as a sex offender is an
unconstitutional ex post facto application of the law, and that the trial court’s ruling on a
Batson challenge was against the preponderance of the evidence. We affirm.
It is undisputed that in June 1996 Hammock pleaded guilty in the state of
Washington to the offense of third-degree rape. He was sentenced to fourteen months in
prison, with two additional years of community placement, and required to register as a
sex offender in Washington.
Testimony from Paula Stitz, the manager of the Arkansas Crime Information
Center sex-offender registry, confirmed that Hammock registered as a sex offender on
March 12, 2002, and then regularly sent back required verification letters every six months
until February 2004, when he ceased doing so. Stitz further testified that if Hammock was
required to register in any other state, he was also required to register in Arkansas.
For his first point of appeal, Hammock argues that his conviction for failing to
register as a sex offender was an unconstitutional ex post facto application of the law and
that the trial court erred in applying the registration requirements of the Sex Offender
Registration Act of 1997, found at Arkansas Code Annotated section 12-12-901 et seq., to
him. Specifically, he argues that section 12-12-905 (Supp. 2007) did not apply to him
because the statute did not become effective until after his conviction.
This statute
provides, in pertinent part:
(a) The registration or registration verification requirements of this subchapter apply
to a person who:
(1) Is adjudicated guilty on or after August 1, 1997, of a sex offense, aggravated sex
offense, or sexually violent offense;
(2) Is serving a sentence of incarceration, probation, parole, or other form of
community supervision as a result of an adjudication of guilt on or after August 1,
1997, for a sex offense, aggravated sex offense, or sexually violent offense[.]
The trial court found that subsection (a)(2) was applicable to Hammock, as he was still
serving some form of community supervision after August 1, 1997. Hammock argues that
the language of the statute “states that registration is applicable to him only if he was
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serving some form of community supervision for an adjudication of guilt on or after
August 1, 1997.” (Hammock’s emphasis.)
We hold that it is unnecessary to interpret section 12-12-905 in order to determine
whether Hammock was required to register under it as a sex offender in Arkansas because
the next successive statutory section, § 12-12-906(a)(2)(A)-(B)(i) (Supp. 2007), clearly
requires Hammock to register as a sex offender. This statutory section requires in more
definite terms:
(2)(A) A sex offender moving to or returning to this state from another jurisdiction
shall register with the local law enforcement agency having jurisdiction within
three (3) business days after the sex offender establishes residency in a municipality
or county of this state.
(B)(i) Any person living in this state who would be required to register as a sex
offender in the jurisdiction in which he or she was adjudicated guilty of a sex
offense shall register as a sex offender in this state whether living, working, or
attending school or other training in Arkansas.
Hammock’s conviction in the state of Washington required that he register as a sex
offender; therefore, under section 12-12-906(B)(i), he is also required to register as a sex
offender in Arkansas.
For his second point of appeal, Hammock, who is African-American, argues that
the trial court’s ruling on his Batson challenge was against the preponderance of the
evidence.
He argued that the State exercised five peremptory challenges, four against
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African-American jurors and one against a Caucasian juror,1 in violation of Batson v.
Kentucky, 476 U.S. 79 (1986).
In Hinkston v. State, 340 Ark. 530, 538-39, 10 S.W.3d 906, 911-12 (2000), our
supreme court set forth the three-step process to be used by our trial courts in the case of
Batson challenges:
We have delineated a three-step process to be used in the case of Batson challenges.
MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998). First, the strike’s
opponent must present facts to raise an inference of purposeful discrimination; that
is, the opponent must present a prima facie case of racial discrimination. Id. Second,
once the strike’s opponent has made a prima facie case, the burden shifts to the
proponent of the strike to present a race-neutral explanation for the strike. Id. If a
race-neutral explanation is given, the inquiry proceeds to the third step, wherein
the trial court must decide whether the strike’s opponent has proven purposeful
discrimination. Id. Here, the strike’s opponent must persuade the trial court that the
expressed motive of the striking party is not genuine but, rather, is the product of
discriminatory intent. Id.
A trial court’s ruling on a Batson challenge will be reversed only when its findings are
clearly against the preponderance of the evidence; some measure of deference is given to
the trial court due to its opportunity to observe the parties and determine their credibility.
Id. at 539, 10 S.W.3d at 912.
When it was determined that the court reporter’s recorder had not been on during
his Batson challenge, the trial court summarized on the record both Hammock’s Batson
challenge and the State’s explanation. The trial court stated that defense counsel made a
1
The trial court required the State to accept one of the African-American jurors that
it initially struck; the State filed a notice of cross-appeal regarding this issue, but abandoned
its pursuit of the cross-appeal. The jury panel ultimately had two African-American jurors
seated on it.
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Batson challenge to the prosecutor’s five strikes; that the prosecutor explained that all of
the strikes he made, including the one against the Caucasian juror, were supported by
juror questionnaires that reflected that each juror had previous criminal charges filed
against either the juror or a family member; and that the State’s explanation was not
disputed by defense counsel. The trial court also noted that it had made the State take one
of the stricken jurors despite her answers on the questionnaire. The trial court then asked
defense counsel if there was anything else. In response, defense counsel stated only that he
had made an exception to the other three strikes made by the prosecutor. The prosecutor
then offered that one of the stricken jurors had stated the day before that he held it against
the prosecutor that he had sent his brother to prison; the prosecutor also noted that he did
keep a black male on the jury. The colloquy continued. The trial court then stated that it
was trying to be practical about the situation, noting that “a lot” of African-Americans
took themselves off the panel because of their reluctance to judge, which the court could
do nothing about. Further, the trial court advised the prosecutor that the State was put on
notice that if it was going to use the fact that the juror or a family member had been
charged with any offense other than a traffic offense to strike a minority, there had to be
“follow up” to find out if the offense “happened in the last twenty years or last two years,
where did it happen, first cousin, second cousin, brother, sister.” For emphasis, the trial
court explained that being charged with an offense could not be used in an unlimited
manner for excusing any particular race. Commenting that it was the best that could be
done in the situation, the trial court reiterated that it had made the State take one of the
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stricken African-American jurors, which left two African-American jurors on the jury
panel. Following this, the trial court, for the second time, asked defense counsel if there
was anything else. Defense counsel responded only by asking that the record reflect that
his client was African-American.
Here, Hammock concedes that the State’s reason for striking the African-American
jurors was race neutral. His argument, therefore, lies within the third prong of the test for
a Batson challenge—that the trial court did not give him the opportunity to persuade it
that the State’s motive in striking the jurors was not genuine but was rather the product of
discriminatory intent and he was therefore entitled to a new trial.
Our earlier recitation from the record of Hammock’s Batson challenge indicates that
the trial court gave Hammock two opportunities to add anything further to his challenge.
The first time, defense counsel noted, without more, that he had made an exception to
the other three strikes made by the prosecutor.
The second time, defense counsel
responded by asking, without more, that the record reflect that his client was AfricanAmerican. The record reflects there was no attempt by defense counsel to add anything
further, even after being asked by the trial court on two occasions. Though Hammock
had the opportunity to make additional arguments to the trial court, he failed to do so. In
Weston v. State, 366 Ark. 265, 275, 234 S.W.3d 848, 856 (2006), our supreme court,
citing Owens v. State, 363 Ark. 413, 417, 214 S.W.3d 849, 852 (2005) (internal citations
omitted), held:
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[I]t is the responsibility of the party opposing the strike to move the matter forward
at the third stage of the process and to meet the burden of persuasion. This is not
the trial court’s responsibility, as the trial court can only inquire into the evidence
that is made available to it. According to this court, if the party opposing the strike
does not present more evidence, no additional inquiry by the trial court is required.
Affirmed.
G LADWIN and G RUBER, JJ., agree.
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