Timothy Lamont Howard v. State of Arkansas

Timothy HOWARD v. STATE of Arkansas

CR 00-803 ___ S.W.3d ___

Supreme Court of Arkansas

Opinion delivered June 27, 2002

[Dissenting opinion only]

Jim Hannah, Justice, dissenting. The petition for rehearing should be granted. The majority has stated and relied upon the wrong standard of review in this case. The majority states that under the standard applied, "Only evidence supporting the verdict will be considered." This statement is overbroad. Rather, under the requirements of the Fourteenth Amendment to the United States Constitution, all the evidence is reviewed in a light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307 (1979), see also, Lewis v. Jeffers, 497 U.S. 764 (1990). We have said as much earlier in Chaviers v. State, 267 Ark. 6, 588 S.W.2d 434 (1979), wherein this court stated:

In pointing out the pertinent testimony on the question of sufficiency of the evidence, we will view the evidence in the light most favorable to the state, considering only that testimony that lends support to the jury verdict and disregarding any conflicting testimony which could have been rejected by the jury on the basis of credibility.

Chaviers v. State, 267 Ark. at 13. Here the standard was correctly stated. All evidence must

be considered in the light most favorable to the state; however, testimony that could have been rejected by the jury on the basis of credibility may be disregarded. This is consistent with the well known principle that the court will generally defer to the jury on issues of credibility. Atkinson v. State, 347 Ark. 336, 64 S.W.3d 259 (2002); Phillips v. State, 344 Ark. 453, 40 S.W.3d 778 (2001). See also, Schlup v. Delo, 513 U.S. 298 (1995). Consistent with these rules, all evidence in favor of the appellant may not be simply disregarded. Thus, this court has ignored evidence on review that must be considered.

The injury that results from this improper standard is seen quite clearly in this case basedsolely upon circumstantial evidence. The majority states in error that this case includes direct evidence. As discussed in my dissent, there is no merit to this assertion. The majority asserts as well that the determination of whether the circumstantial evidence is consistent with guilt and inconsistent with any other reasonable conclusion is a question of fact for the fact-finder to determine. This is again overbroad and ignores an analysis that should have been undertaken by the trial court and ignores an analysis that should have been undertaken by this court on appeal.

The trial court may not simply default to the jury. This court may not simply assert the issue is one for the jury and ignore whether the trial court should have submitted the issue to the jury. In Jackson, supra, the United States Supreme Court stated that:

After Winship the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. at 317. More is required than simply a "trial ritual." Jackson v. Virginia, 443 U.S. at 316-317. It is only when circumstantial evidence does more than arouse suspicion, and is properly connected, that it becomes an issue to be submitted to the jury. Sanders v. State, 340 Ark. 163, 8 S.W.3d 520 (2000); Chaviers, supra. See also, Harshaw v. State, 275 Ark. 481, 631 S.W.2d 300 (1982). An analysis is required to determine whether the jury was left to speculation and conjecture in arriving at its conclusion. Chaviers, supra. Only then is the question one that may be submitted to the jury. In Ross v. State, 346 Ark. 225, 230, 57 S.W.3d 152 (2001), this court stated, "Upon review, this court must determine whether the jury resorted to speculation and conjecture in reaching its verdict." This was not done. Due process was not satisfied.

The majority attempts to meet the requirement that the circumstances be so connected andcogent as to show guilt to a moral certainty with the statement that "the most incriminating evidence against Howard was his inappropriate and unexplainable behavior both before and after the discovery of Brian, Shannon and Trevor Day." How inappropriate and unexplainable behavior rises above mere suspicion and conjecture is difficult for me to understand.

I also feel compelled to note that the reference to "inappropriate and unexplainable behavior" might be interpreted to mean that this court is stating that if Howard had an explanation for his behavior, he should have provided it. While it is not clear, this might be argued to mean that this court is indicating he should have waived his Fifth Amendment rights against self-incrimination and provided testimony to explain his conduct. Clearly, this would not be proper. The jury is instructed that a defendant has an absolute right not to testify. The jury is further instructed that the fact a defendant chooses not to testify is not evidence of guilt or innocence, and under no circumstances shall the jury consider whether the defendant testified. AMCI Crim. 111. Yet it appears this is what is being considered by this court.

Based upon the arguments stated herein, and based on the arguments contained in my dissent, I would grant the petition for rehearing.

Brown and Thornton, JJ., join.

Corbin, J., not participating.