Ralph Armstrong v. State of Arkansas
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SUPREME COURT OF ARKANSAS
No.
RALPH ARMSTRONG,
CR07-1074
Opinion Delivered May 1, 2008
APPELLANT,
VS.
STATE OF ARKANSAS,
APPELLEE,
APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
NO. CR 2004-1358,
HON. WILLARD PROCTOR JR.,
JUDGE,
AFFIRMED.
PAUL E. DANIELSON, Associate Justice
Appellant Ralph Armstrong appeals from the circuit court's denial of his petition
pursuant to Ark. R. Crim. P. 37. His sole point on appeal is that pursuant to a recent opinion
of the United States Supreme Court, he should be granted a new trial at which evidence of
third-party guilt should be admitted. We hold that the circuit court did not clearly err and
affirm the circuit court's order.
Armstrong was found guilty of two counts of capital murder and was sentenced to two
concurrent terms of life imprisonment without parole. This court affirmed the judgment in
Armstrong v. State, 366 Ark. 105, 233 S.W.3d 627 (2006). In that appeal, Armstrong argued
that the circuit court erroneously excluded evidence he requested to present of controversies
between Kim Waller, Waller’s sisters, and Dashunda Armstrong, the victim, including an
audio tape that contained statements by the Waller sisters threatening to kill Dashunda
Armstrong. See id. He claimed that the circuit court erroneously construed Zinger v. State,
313 Ark. 70, 852 S.W.2d 320 (1993), as requiring evidence of another's guilt to point directly
to the other perpetrator’s guilt before it could be presented. See id. We held that the circuit
court did not err in its interpretation of Zinger and that the circuit court did not abuse its
discretion in rejecting the evidence, as it did no more than create a suspicion or conjecture
that the Waller sisters may have played a role in Dashunda Armstrong's death. See id.
On July 3, 2006, Armstrong filed a petition for postconviction relief pursuant to Ark.
R. Crim. P. 37.1,1 alleging that a United States Supreme Court opinion, Holmes v. South
Carolina, 547 U.S. 319 (2006), issued one day before the mandate in this case was issued,
overruled Zinger v. State, supra. Therefore, Armstrong alleged he should be granted a new
trial at which the evidence that allegedly would have incriminated Kim Waller and her sisters
be admitted.
On October 17, 2006, the circuit court held a Rule 37 hearing on Armstrong’s
motion. The circuit court denied Armstrong’s petition on July 17, 2006, finding the
following:
A claim for relief under Rule 37 is not applicable if the claim on which it is
based could have been raised at trial or on appeal, unless it presents a question
so fundamental as to render the judgment of conviction absolutely void. This
issue was adequately presented to this Court both before trial and prior to the
case being presented to the jury. Further, the recent United States Supreme
Court decision upon which the Petitioner relies did not explicitly overrule the
While Armstrong had filed a similar pro set petition on June 28, 2006, the circuit
court granted a motion to substitute it with the Rule 37 petition subsequently filed by his
counsel on July 3, 2006, with no objection by the State.
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law upon which this Court made its rulings and is otherwise distinguishable.
Defendant’s petition for relief pursuant to Rule 37 of the Arkansas Rules of
Criminal Procedure is therefore denied.
This appeal arises from the order denying Armstrong’s petition for postconviction relief. We
now turn to the current appeal.
Under our standard of review for a proceeding on a Rule 37.1 petition, the denial of
postconviction relief is not reversed unless the circuit court's findings are clearly erroneous or
clearly against the preponderance of the evidence. See O'Connor v. State, 367 Ark. 173, 238
S.W.3d 104 (2006). A finding is clearly erroneous when, although there is evidence to
support it, the appellate court after reviewing the entire evidence is left with the definite and
firm conviction that a mistake has been committed. See Flores v. State, 350 Ark. 198, 85
S.W.3d 896 (2002).
Armstrong contends that, under Holmes v. South Carolina, supra, Zinger v. State, supra,
is unconstitutional because it abridges defendants’ rights to present a complete defense,
confront and cross examine witnesses, have a jury determine all facts necessary to convict, and
the right to have the government prove its case beyond a reasonable doubt. First, the State
avers that Armstrong is too late in making his claim because he never filed a petition for
certiorari, and a Rule 37 petition is not the proper forum for him to request that Holmes be
retroactively applied to his case. Furthermore, the State argues that even if Armstrong could
raise Holmes now, he is not entitled to relief because Zinger was not overruled, either explicitly
or implicitly, as the rule applied in Zinger is distinguishable from the rule at issue in Holmes.
A. The Appropriateness of Armstrong’s Rule 37 petition
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The State contends that objections to evidentiary rulings at trial are not cognizable
under Rule 37. Further, the State argues that Armstrong may not pursue this claim simply
because Holmes was issued during the time that he could have sought certiorari and that he
should have petitioned the United States Supreme Court to have his conviction vacated based
on Holmes. However, the State fails to cite supporting authority for the proposition that a
petition for certiorari to the United States Supreme Court would have been the proper
method for Armstrong to pursue this claim.
Rule 37.1 of the Arkansas Rules of Criminal Procedure instructs:
(a) A petitioner in custody under sentence of a circuit court claiming a right
to be released, or to have a new trial, or to have the original sentence modified
on the ground:
(i) that the sentence was imposed in violation of the Constitution and laws
of the United States or this state; or . . . .
Ark. R. Civ. P. 37.1(a) (2007). Here, Armstrong petitions for a new trial based on his belief
that the United States Supreme Court’s holding in Holmes proves that the circuit court erred
in applying Zinger to his case, which he alleges violated his rights under the Due Process
Clause of the Fourteenth Amendment and the Compulsory Process and Confrontation
Clauses of the Sixth Amendment. Therefore, a Rule 37 petition was appropriate. In
addition, requiring a petitioner to petition the United States Supreme Court for a writ of
certiorari instead of bringing a Rule 37 petition does not further judicial economy.
If Armstrong’s allegations are correct, the United States Supreme Court has held that
“a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases,
state or federal, pending on direct review or not yet final . . . ” Griffith v. Kentucky, 479 U.S.
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314, 328 (1987). The Court clarified that by “final,” it meant “a case in which a judgment
of conviction has been rendered, the availability of appeal exhausted, and the time for a
petition for certiorari elapsed or a petition for certiorari finally denied.” Id. at 321. When
Holmes was issued, this court had not issued the mandate in Armstrong’s case, and the time
to file for a petition for certiorari had not lapsed.
B. The Merits of Armstrong’s Rule 37 Petition
We now turn to the merits of Armstrong’s Rule 37 petition and must decide whether
the United States Supreme Court’s decision in Holmes v. South Carolina, 547 U.S. 319 (2006),
overrules Arkansas precedent, in particular, Zinger v. State, 313 Ark. 70, 852 S.W.2d 320
(1993). We conclude it does not.
The Holmes Court stated that certain rules regarding the admission of evidence
proffered by a criminal defendant to show that someone else committed the crime with which
they were charged are widely accepted and were not the rules being challenged in that case.
See Holmes, supra. For example, the Court noted that “[e]vidence tending to show the
commission by another person of the crime charged may be introduced by the accused when
it is inconsistent with, and raises a reasonable doubt of, his own guilt; but frequently matters
offered in evidence for this purpose are so remote and lack such connection with the crime
that they are excluded.” Id. at 327 (citing 41 C.J.S. Homicide § 216 (1991)). Additionally, the
Court further stated that “[t]he accused may introduce any legal evidence tending to prove
that another person may have committed the crime with which the defendant is charged . .
. [Such evidence] may be excluded where it does not sufficiently connect the other person
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to the crime, as, for example, where the evidence is speculative or remote, or does not tend
to prove or disprove a material fact in issue at the defendant’s trial.” Id. at 327 (citing 40A
Am. Jur. 2nd Homicide § 286 (1999)).
The Holmes Court also accepted a rule established in an earlier South Carolina
Supreme Court case, State v. Gregory, 198 S.C. 98, 16 S.E.2d 532 (1941):
In Gregory, the South Carolina Supreme Court adopted and applied a rule
apparently intended to be of this type, given the court's references to the
“applicable rule” from Corpus Juris and American Jurisprudence:
“[E]vidence offered by accused as to the commission of
the crime by another person must be limited to such facts as are
inconsistent with his own guilt, and to such facts as raise a
reasonable inference or presumption as to his own innocence;
evidence which can have (no) other effect than to cast a bare
suspicion upon another, or to raise a conjectural inference as to
the commission of the crime by another, is not admissible.....
[B]efore such testimony can be received, there must be such
proof of connection with it, such a train of facts or
circumstances, as tends clearly to point out such other person as
the guilty party.”
547 U.S. at 328 (internal citations omitted). It is not the above rule from South Carolina
with which the United States Supreme Court was concerned. However, the rule on review
in Holmes had been altered and extended by the South Carolina Supreme Court when applied
in State v. Holmes, 361 S.C. 333, 605 S.E.2d 19 (2004), and State v. Gay, 343 S.C. 543, 541
S.E.2d 541 (2001).
In Gay, the South Carolina Supreme Court held that “[i]n view of the strong evidence
of appellant's guilt-especially the forensic evidence . . . the proffered evidence . . . did not raise
‘a reasonable inference’ as to appellant's own innocence.” 343 S.C. at 550, 541 S.E.2d at 545.
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Again in State v. Holmes, the South Carolina Supreme Court extended the rule and held that
“where there is strong evidence of an appellant's guilt, especially where there is strong forensic
evidence, the proffered evidence about a third party's alleged guilt does not raise a reasonable
inference as to the appellant's own innocence.” 361 S.C. at 343, 605 S.E.2d at 24.
The Court in Holmes found that the rule as applied by the South Carolina Supreme
Court in State v. Gay, supra, and State v. Holmes, supra, “does not rationally serve the end that
the Gregory rule and its analogues in other jurisdictions were designed to promote, i.e., to
focus the trial on the central issues by excluding evidence that only has a very weak logical
connection to the central issues.” 547 U.S. at 329. The Court further commented the
problem with the rule as it was applied in State v. Gay, supra, and State v. Holmes, supra, was
that:
Under this rule, the trial judge does not focus on the probative value or the
potential adverse effects of admitting the defense evidence of third-party guilt.
Instead, the critical inquiry concerns the strength of the prosecution's case: If
the prosecution's case is strong enough, the evidence of third-party guilt is
excluded even if that evidence, if viewed independently, would have great
probative value and even if it would not pose an undue risk of harassment,
prejudice, or confusion of the issues.
Id.
The issue this court must now decide is if the rule we applied in Zinger v. State, 313
Ark. 70, 852 S.W.2d 320 (1993), and Armstrong v. State, 366 Ark. 105, 233 S.W.3d 627
(2006), serves the same end as the rule in Gregory and its analogues in other jurisdictions, or
focuses on the strength of the prosecution's case as the rule applied in State v. Gay, supra, and
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State v. Holmes, supra.
We quoted the Supreme Court of North Carolina with favor in both Zinger and
Armstrong stating:
A defendant may introduce evidence tending to show that someone other than
the defendant committed the crime charged, but, such evidence is inadmissible
unless it points directly to the guilt of the third party. Evidence which does no
more than create an inference or conjecture as to another's guilt is inadmissible.
Armstrong v. State, 366 Ark. at 117, 233 S.W.3d at 637; Zinger v. State, 313 Ark. at 75, 852
S.W.2d at 323 (quoting State v. Wilson, 322 N.C. 117, 367 S.E.2d 589 (1988)). In addition,
quoting the Supreme Court of California, we observed:
[T]he rule does not require that any evidence, however remote, must be
admitted to show a third party's possible culpability ... [E]vidence of mere
motive or opportunity to commit the crime in another person, without more,
will not suffice to raise a reasonable doubt about a defendant's guilt: there must
be direct or circumstantial evidence linking the third person to the actual
perpetration of the crime.
Armstrong v. State, 366 Ark. at 117, 233 S.W.3d at 637; Zinger v. State, 313 Ark. at 75, 852
S.W.2d at 323 (quoting People v. Kaurish, 52 Cal. 3d 648, 276 Cal. Rptr. 788, 802 P.2d 278
(1990)).
We hold that the rule this court applied in both Zinger and Armstrong is not arbitrary
and does not evaluate the strength of only one party’s evidence as the rule overturned in
Holmes v. South Carolina, supra. The rule we have applied simply requires that the evidence
a defendant wishes to admit to prove third-party guilt sufficiently connects the other person
to the crime. In Armstrong v. State, supra, we considered the evidence Armstrong alleged
should have been admitted at his trial and concluded that it did “no more than create a
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suspicion or conjecture that the Waller sisters may have played a role in Dashunda
Armstrong's death.” 366 Ark. at 118, 233 S.W.3d at 637.
For these reasons, we hold that the circuit court did not clearly err in denying
Armstrong’s Rule 37 petition and affirm.
Affirmed.
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