{ "id": 922898, "name": "Ledell LEE v. STATE of Arkansas", "name_abbreviation": "Lee v. State", "decision_date": "1997-03-24", "docket_number": "CR 96-553", "first_page": "692", "last_page": "715", "citations": [ { "type": "official", "cite": "327 Ark. 692" }, { "type": "parallel", "cite": "942 S.W.2d 231" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "Ark. Code Ann. \u00a7 16-91-113", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "280 Ark. 551", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1744892 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/ark/280/0551-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-4-604", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1993, "pin_cites": [ { "page": "(3)" } ], "opinion_index": 0 }, { "cite": "481 U.S. 279", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6214785 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/us/481/0279-01" ] }, { "cite": "37 Stan. L. Rev. 27", "category": "journals:journal", "reporter": "Stan. L. Rev.", "year": 1984, "opinion_index": 0 }, { "cite": "114 S.Ct. 2630", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 39795 ], "year": 1994, "pin_cites": [ { "page": "2639" } ], "opinion_index": 0, "case_paths": [ "/us/512/0967-01" ] }, { "cite": "501 U.S. 808", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1108176 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "826" }, { "page": "827" } ], "opinion_index": 0, "case_paths": [ "/us/501/0808-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-4-602", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1993, "pin_cites": [ { "page": "(4)" } ], "opinion_index": 0 }, { "cite": "116 S.Ct. 1436", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1995, "opinion_index": 0 }, { "cite": "322 Ark. 87", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1447576 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/322/0087-01" ] }, { "cite": "310 Ark. 247", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1898868 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/310/0247-01" ] }, { "cite": "324 Ark. 135", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 9158851 ], "weight": 6, "year": 1996, "pin_cites": [ { "page": "204-205" }, { "page": "205" }, { "page": "205" }, { "page": "205" } ], "opinion_index": 0, "case_paths": [ "/ark/324/0135-01" ] }, { "cite": "326 Ark. 917", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 12025548 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/326/0917-01" ] }, { "cite": "327 Ark. 70", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 922726 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/327/0070-01" ] }, { "cite": "488 U.S. 51", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1495598 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "58" }, { "page": "59" } ], "opinion_index": 0, "case_paths": [ "/us/488/0051-01" ] }, { "cite": "476 U.S. 479", "category": "reporters:federal", "reporter": "U.S.", "year": 1988, "pin_cites": [ { "page": "488-9" } ], "opinion_index": 0 }, { "cite": "306 Ark. 527", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1900958 ], "weight": 4, "year": 1991, "pin_cites": [ { "page": "532-3" }, { "page": "533" } ], "opinion_index": 0, "case_paths": [ "/ark/306/0527-01" ] }, { "cite": "373 U.S. 83", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11716714 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/us/373/0083-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-32-103", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1994, "opinion_index": 0 }, { "cite": "323 Ark. 116", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1445718 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/323/0116-01" ] }, { "cite": "439 U.S. 357", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11330305 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "364-66" } ], "opinion_index": 0, "case_paths": [ "/us/439/0357-01" ] }, { "cite": "300 Ark. 25", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1886843 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/300/0025-01" ] }, { "cite": "325 Ark. 194", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 369357 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/325/0194-01" ] }, { "cite": "326 Ark. 34", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 12020206 ], "weight": 3, "year": 1996, "pin_cites": [ { "page": "43" } ], "opinion_index": 0, "case_paths": [ "/ark/326/0034-01" ] }, { "cite": "642 N.E.2d 928", "category": "reporters:state_regional", "reporter": "N.E.2d", "case_ids": [ 10885075 ], "year": 1994, "opinion_index": 1, "case_paths": [ "/ne2d/642/0928-01" ] }, { "cite": "675 N.E.2d 1060", "category": "reporters:state_regional", "reporter": "N.E.2d", "case_ids": [ 11916018 ], "year": 1996, "opinion_index": 1, "case_paths": [ "/ne2d/675/1060-01" ] }, { "cite": "1996 WL 744864", "category": "reporters:specialty_west", "reporter": "WL", "year": 1996, "opinion_index": 1 }, { "cite": "308 Ark. 7", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1904311 ], "weight": 2, "year": 1992, "opinion_index": 1, "case_paths": [ "/ark/308/0007-01" ] }, { "cite": "462 U.S. 862", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6195530 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "877" } ], "opinion_index": 1, "case_paths": [ "/us/462/0862-01" ] }, { "cite": "484 U.S. 231", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 600972 ], "year": 1988, "pin_cites": [ { "page": "244" } ], "opinion_index": 1, "case_paths": [ "/us/484/0231-01" ] }, { "cite": "285 Ark. 462", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1877693 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "466", "parenthetical": "stat-ing \"the evidence offered must be probative of some issue to be properly considered in the penalty phase\"" }, { "page": "298", "parenthetical": "stat-ing \"the evidence offered must be probative of some issue to be properly considered in the penalty phase\"" } ], "opinion_index": 1, "case_paths": [ "/ark/285/0462-01" ] }, { "cite": "313 Ark. 23", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1914601 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "38", "parenthetical": "stating \"the defense must be allowed during the sentencing phase to introduce any relevant mitigating evidence the defense proffers concerning the character or history of the offender or the circumstances of the offense\"" }, { "page": "779", "parenthetical": "stating \"the defense must be allowed during the sentencing phase to introduce any relevant mitigating evidence the defense proffers concerning the character or history of the offender or the circumstances of the offense\"" } ], "opinion_index": 1, "case_paths": [ "/ark/313/0023-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-4-605", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1993, "opinion_index": 1 }, { "cite": "261 Ark. 413", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1678979 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "420" }, { "page": "483" } ], "opinion_index": 1, "case_paths": [ "/ark/261/0413-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-4-603", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "pin_cites": [ { "parenthetical": "a" }, { "parenthetical": "a" } ], "opinion_index": 1 }, { "cite": "261 Ark. 195", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1678868 ], "weight": 3, "year": 1977, "pin_cites": [ { "page": "202" }, { "page": "110" }, { "page": "111" } ], "opinion_index": 1, "case_paths": [ "/ark/261/0195-01" ] }, { "cite": "497 U.S. 764", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6219216 ], "year": 1990, "pin_cites": [ { "page": "776" } ], "opinion_index": 1, "case_paths": [ "/us/497/0764-01" ] }, { "cite": "408 U.S. 238", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1782791 ], "year": 1972, "pin_cites": [ { "page": "310", "parenthetical": "Stewart, J., concurring" } ], "opinion_index": 1, "case_paths": [ "/us/408/0238-01" ] }, { "cite": "428 U.S. 153", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6176749 ], "year": 1976, "pin_cites": [ { "page": "188", "parenthetical": "joint opinion of Stewart, Powell, and Stevens, JJ." } ], "opinion_index": 1, "case_paths": [ "/us/428/0153-01" ] }, { "cite": "280 Ark. 77", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1744746 ], "weight": 3, "year": 1983, "pin_cites": [ { "page": "687", "parenthetical": "citations omitted" } ], "opinion_index": 1, "case_paths": [ "/ark/280/0077-01" ] }, { "cite": "289 Ark. 387", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1875391 ], "weight": 5, "year": 1986, "pin_cites": [ { "page": "397" }, { "page": "238" } ], "opinion_index": 1, "case_paths": [ "/ark/289/0387-01" ] }, { "cite": "501 U.S. 808", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1108176 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "827" }, { "page": "825" } ], "opinion_index": 1, "case_paths": [ "/us/501/0808-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-4-602", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "year": 1993, "pin_cites": [ { "page": "(4)" }, { "page": "(4)", "parenthetical": "Repl. 19,93" } ], "opinion_index": 1 }, { "cite": "322 Ark. 87", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1447576 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "109" }, { "page": "689" } ], "opinion_index": 1, "case_paths": [ "/ark/322/0087-01" ] } ], "analysis": { "cardinality": 1653, "char_count": 42276, "ocr_confidence": 0.764, "pagerank": { "raw": 4.245699453243793e-07, "percentile": 0.914874959891484 }, "sha256": "62feee1c8fb4256e5bbd1f42049465134026e50b00b95ba17dba86fc7535f9c3", "simhash": "1:3e05e093760ed900", "word_count": 6922 }, "last_updated": "2023-07-14T16:50:41.435320+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Newbern, J., concurs." ], "parties": [ "Ledell LEE v. STATE of Arkansas" ], "opinions": [ { "text": "W.H.\u201cDub\u201d Arnold, Chief Justice.\nTwenty-six year-old Debra Reese was found brutally murdered in her home at 212 Cherry Street in Jacksonville on February 9, 1993. She had been beaten some thirty-six times with a tire thumper, a tool resembling a baseball bat that her husband Billy, a truck driver, had given to her for protection while he was away. Bruises on Debra\u2019s face and neck indicated that she had also been strangled. The appellant, Ledell Lee, was arrested and charged with Reese\u2019s murder. Following a jury trial, he was convicted of capital murder and sentenced to death by lethal injection. He raises seven points on appeal. We find no merit to any of his arguments and affirm the conviction and sentence.\nLee does not challenge the sufficiency of the evidence, so we need not recite the facts in great detail. The State\u2019s theory at trial was that Lee committed the murder for pecuniary gain, and that he had searched the victim\u2019s neighborhood until he found the perfect target for his crime.\nWilliam McCullough Jr. lived near the victim\u2019s house and had been home on the morning in question. Sometime between 10:00 a.m. and 11:00 a.m., he heard a knock at his door. McCullough went to the door and was met by a man who asked to borrow some tools. McCullough gave the man a driver ratchet and a socket, which he promised to return. The man did not return the tools.\nAt approximately 10:50 a.m. on the morning of the murder, Katherine Williams, the victim\u2019s mother, received a phone call from her daughter, who lived some four or five houses away. A man had just knocked on the victim\u2019s door, asked if her husband was home, and inquired about borrowing some tools. When the victim replied that she had no tools, the man left. According to Katherine, her daughter told her that she was scared and \u201cdid not trust this guy.\u201d The victim promised her mother that she would be at her house as soon as she finished curling her hair. Her daughter never arrived.\nAndy Gomez lived across the street from the victim, and was also home on the morning in question. While looking out his front window, he saw a man standing at the front door of the victim\u2019s residence. He watched the man grab the screen door and \u201cmake a B-line inside just real fast.\u201d Approximately twenty minutes later, the man exited Debra\u2019s residence. According to Gomez, the man made rapid head movements, as if he was checking to see if he was being watched. Suspicious, Gomez got in his car to follow the man. He caught up with him on a nearby street, where he observed the man talking to a female with spirals or braids in her hair.\nGlenda Pruitt lived at 128 Galloway Circle on the date in question. A man she had seen four or five times and knew as \u201cSkip\u201d walked up her street. Glenda, who wore her hair in long braids, had a short conversation with Skip as he passed by her house. McCullough, Gomez, and Pruitt identified Lee in a photographic lineup as the man they had seen in the victim\u2019s neighborhood on the morning of her murder.\nDebra\u2019s body was discovered in her bedroom at approximately 1:38 p.m. that same date. Three one hundred dollar bills that Debra\u2019s father, Stephen Williams, had given to her were missing from her wallet. This money had been part of a larger stack of crisp new bills Williams received in sequential order from the Arkansas Federal Credit Union. At Lee\u2019s trial, the State offered evidence that, at 1:53 p.m. on the day of the murder, Lee paid a debt at the Rent-A-Center with a one-hundred dollar bill. Of the three one-hundred dollar bills that the Rent-A-Center received on February 9, one of the bills bore a serial number that was two bills away from one of the bills that the victim\u2019s father had turned over to police.\nI. Selection of jury panel\nFor his first allegation of error, Lee asserts that the use of voter registration records to select the jury panel in his case denied him a jury comprised of a true cross-section of the community. At the end of voir dire, Lee, who is African-American, observed that only ten of the seventy-five venirepersons assembled were African-American. Lee claims that the State failed to rebut his statistical evidence of systematic exclusion of African-Americans from the jury panel in his case.\nSelection of a petit jury from a representative cross-section of the community is an essential component of the Sixth Amendment right to a jury trial. Danzie v. State, 326 Ark. 34, 930 S.W.2d 310 (1996); Davis v. State, 325 Ark. 194, 925 S.W.2d 402 (1996). It is axiomatic that the State may not deliberately or systematically deny to members of a defendant\u2019s race the right to participate, as jurors, in the administration of justice. Davis v. State, supra; Sanders v. State, 300 Ark. 25, 776 S.W.2d 334 (1989). In order to establish a prima facie case of deliberate or systematic exclusion, a defendant must prove that: (1) the group alleged to be excluded is a \u201cdistinctive\u201d 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, 439 U.S. 357 (1979).\nIn this case, the first prong of the Duren test is clearly met, as African-Americans represent a distinctive group in the community. Regarding the second prong, Lee offered statistical evidence compiled from the 1990 census that Pulaski County has a population of 349,660, of which 58,280 are African-American citizens over age eighteen. Of the 349,600, the county has 200,297 registered voters. Lee also proffered the testimony of a mathematics professor that there was a two-percent chance that the jury panel in Lee\u2019s case could have been randomly selected from the population of Pulaski County.\nLee did not meet his burden of proof by merely showing that the jury venire called in his case was not racially representative of the community. Davis v. State, supra; Mitchell v. State, 323 Ark. 116, 913 S.W.2d 264 (1996). The second prong of the Duren 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 his trial. See Danzie, 326 Ark. at 43, citing Duren, 439 U.S. at 364-66. Lee has not provided us with any evidence as to the number of African-Americans on every jury venire in Pulaski County.\nIn order to satisfy the final prong in Duren, Lee must produce evidence that demonstrates that the alleged misrepresentation of African-Americans is due to a systematic exclusion in the jury-selection system itself. Lee acknowledges in his brief our previous holdings that, where the venire is chosen by computer, using the random-selection process maintained by Ark. Code Ann. \u00a7 16-32-103 (Repl. 1994), there is no possibility of a purposeful exclusion of African-Americans. Because Lee failed to satisfy the second and third elements of the Duren test, the trial court did not err in denying his motion to prohibit the use of voter registration records to select the jury panel in his case.\nII. Destruction of blood evidence\nLee\u2019s second point on appeal is that the capital murder charge should have been dismissed due to the destruction of possibly exculpatory evidence. When Lee was arrested and taken into custody on the day of the murder, among the items police seized from him was a pair of Converse tennis shoes he was wearing. Kermitt Channel!, a serologist with the State Crime Lab, examined the shoes and observed what he believed to be a small spot of blood on the sole of the left shoe, and another spot on the tongue of the right shoe. Channell performed what he termed a \u201cTakayama test\u201d on the shoes, which confirmed the presence of blood, but consumed the entire sample, thus removing the opportunity for independent analysis by the defense. Lee presented the testimony of Robert Reis, a professor of biochemistry and molecular biology, who testified that, while Channell had done his job \u201cquite thoroughly,\u201d the State Crime Lab\u2019s guidelines needed reevaluation since the advent of more sensitive methods of DNA analysis. According to Reis, other tests could have been performed on the shoes without destroying the sample.\nLee claims that his counsel should have been notified that the blood evidence on the shoes was about to be destroyed. He further asserts that the State breached its duty under Brady v. Maryland, 373 U.S. 83 (1963), to preserve potentially exculpatory evidence. According to Lee, the State\u2019s failure to preserve enough of the sample on the shoes so that he could conduct his own tests deprived him of due process guaranteed by the federal and state constitutions.\nWe addressed a similar claim in Wenzel v. State, 306 Ark. 527, 815 S.W.2d 938 (1991). In Wenzel, a rape case, the defendant argued that his due process rights were violated when FBI technicians consumed all of the semen samples found on the victims\u2019 vaginal swabs. We emphasized that the State\u2019s duty to preserve evidence is- limited to that which \u201cmight be expected to play a significant role in the suspect\u2019s defense,\u201d and that the \u201cevidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.\u201d Wenzel, 306 Ark. at 532-3, quoting California v. Trombetta, 476 U.S. 479, 488-9 (1988). We further explained that, \u201cunless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.\u201d Wenzel, 306 Ark. at 533, quoting Arizona v. Youngblood, 488 U.S. 51, 58 (1988).\nIn this case, Lee makes the broad-brushed assertion in his brief that \u201cthe potential value of the evidence to the defense was so obvious that the decision to allow it destroyed suggests bad faith.\u201d This bare contention, without supporting facts, does not demonstrate that the State acted in bad faith in destroying the evidence. To the contrary, Channell testified that he performed the test in accordance with established laboratory guidelines, and that he did not contact the prosecutor or defense counsel to inform them that the sample on the shoes could be consumed, as it was not standard operating procedure to do so. While Lee was free to argue to the jury that alternative testing might have preserved the sample, \u201cthe police do not have a constitutional duty to perform any particular tests.\u201d Youngblood, 488 U.S. at 59. Because Lee has made no showing that the blood evidence on the shoes possessed any exculpatory value before it was.destroyed, or that the State in bad faith failed to preserve the sample, Lee\u2019s due process claim was properly rejected by the trial court.\nAlternatively, Lee argues that he was entitled to an order suppressing the use of the shoes as evidence for the State. However, he neither cites authority nor makes a convincing argument for suppression. We have been careful not to consider arguments where an appellant offers no citation of authority or convincing argument and where it is not apparent without further research that the argument is well taken. Matthews v. State, 327 Ark. 70, 938 S.W.2d 545 (1997).\nIII. Uncharged misconduct evidence\nDuring the State\u2019s case-in-chief, Glenda Pruitt testified that she saw Lee shortly after the murder when he passed in front of her house, which was located near the victim\u2019s residence. According to Pruitt, she asked Lee, \u201cWhere\u2019s the fire?\u201d to which he responded, \u201cWell, you are always asking me for weed.\u201d Without objection, Pruitt testified that Lee responded that he did not use marijuana, but used cocaine.\nDuring cross-examination, Lee\u2019s counsel questioned Pruitt regarding her beliefs and practices as a Rastafarian, particularly with regard to the use of marijuana. He attacked her recollection of her conversation with Lee and whether that recollection was impaired by her use of marijuana. During redirect examination, over Lee\u2019s objection, the trial court permitted the State to present the entire conversation between Pruitt and Lee. According to Pruitt, she asked Lee whether he had cocaine \u201crunning all through [his] veins,\u201d to which he responded, \u201cYes. It is running all through me.\u201d Pruitt then stated, \u201cDon\u2019t you know it (cocaine) is poison?\u201d to which Lee responded, \u201cI\u2019m going to get some now.\u201d\nLee claims that Pruitt\u2019s testimony during redirect was erroneously permitted in violation of A.R.E. 404(b). However, under this rule, evidence of other crimes, wrongs, or acts may be admissible to prove motive. We have said that, when the purpose of evidence is to show motive, anything and everything that might have influenced the commission of the act may, as a rule, be shown. Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996); Cooper v. State, 324 Ark. 135, 919 S.W.2d 205 (1996). The State is entitled to produce evidence showing circumstances which explain the act, show a motive for killing, or illustrate the accused\u2019s state of mind. Echols v. State, supra; Smith v. State, 310 Ark. 247, 837 S.W.2d 279 (1992). The State\u2019s th\u00e9ory at trial was that Lee murdered the victim for pecuniary gain, which was supported by evidence that money was missing from the victim\u2019s wallet. The State was able to produce evidence tying only one of the three missing one hundred dollar bills to Lee. Thus, the State\u2019s evidence that Lee was on his way to obtain drugs shortly after the time of the murder was relevant to explain a possible motive for the killing \u2014 that he planned to use part of the money he took from the victim to purchase drugs \u2014 and to illustrate his state of mind. As we afford great deference to a trial court\u2019s ruling on relevancy and prejudicial impact, we cannot say that the trial court in this case abused its discretion in allowing the State to elicit evidence regarding Pruitt\u2019s conversation with Lee.\nIV. Overlap of offenses\nLee next argues that the overlap between the capital murder and first-degree murder statutes violates the Eighth and Fourteenth Amendments. Particularly, he claims that these statutes overlap in their elements, are void for vagueness, fail to narrow the class of offenders, and grant unbridled discretion to the prosecutor. We have decided this issue adversely to Lee\u2019s position on many occasions, and adhere to these previous holdings. See Echols v. State, supra; Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995), cert. denied, 116 S.Ct. 1436 (1995).\nV. Victim-impact evidence\nLee challenges Arkansas\u2019s victim-impact statute, Ark. Code Ann. \u00a7 5-4-602(4) (Repl. 1993), as violative of due process. He claims that, by enacting the statute, the legislature has improperly created a new aggravating circumstance. He further complains that there is no place in the statutory weighing process for the jury to consider victim-impact evidence. In making his argument, Lee asks us to reconsider our decisions in Kemp v. State, supra', and Nooner v. State, supra. We decline to do so. In Kemp, we explained that the jury could consider victim-impact evidence at the same time it considers the mitigating evidence introduced by the defendant. Kemp, 324 Ark. at 204-205, citing Payne v. Tennessee, 501 U.S. 808, 826 (1991). Recognizing that there are virtually no limits placed on the relevant mitigating evidence that a defendant may introduce on his behalf, we noted that the State could legitimately conclude that the impact of the murder on the victim\u2019s family is relevant to the jury\u2019s decision as to whether to recommend that the death sentence be imposed. Kemp, 324 Ark. at 205, citing Payne, 501 U.S. at 827. We further recognized that the jury need not be instructed how to weigh any particular fact in the capital-sentencing decision, as a contrary rule would require a mandatory sentencing scheme. Kemp, 324 Ark. at 205, citing Tuilaepa v. California, 114 S.Ct. 2630, 2639 (1994).\nWe recognized in Kemp that, when evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief. Kemp, 324 Ark. at 205. In this case, Lisa Buchan, the victim\u2019s sister, was the State\u2019s only victim-impact witness. She testified that her sister and mother spent most of every day together. Her parents were on antidepressants after the incident, and her mother was under psychiatric care. Prior to her death, the victim lived with her husband of seven months and her seven-year-old son from a previous marriage, and was trying to have another child. Lisa, who was pregnant during the trial, stated that she would name her child after her sister. She also related the painful experience of selecting her sister\u2019s wig for her funeral. We cannot agree that Lisa\u2019s testimony was so unduly prejudicial that it rendered Lee\u2019s trial fundamentally unfair.\nVI. Arbitrary and discriminatory\nLee filed a written motion to prohibit the State from seeking the death penalty in his case because, according to him, the death penalty has been historically applied arbitrarily and capriciously and in a racially discriminatory fashion. In support of his argument, he cites a law review article and references the fact that he is black and the victim was white. See \u201cPatterns of Deaths: An Analysis of Racial Disparities in Capital Sentencing and Homicide Victimization,\u201d 37 Stan. L. Rev. 27 (1984). We considered this argument and law review article in Nooner v. State, supra. In Nooner, we emphasized the United States Supreme Court\u2019s requirement that a discriminatory purpose must be proved on the part of the decision-maker in the defendant\u2019s particular ' case. McClesky v. Kemp, 481 U.S. 279 (1987). As in Nooner, Lee\u2019s allegations are very general. He has offered no proof to show how his due process or equal protection rights were violated by a biased or arbitrary judge or jury. Thus, due to absence of proof of discriminatory purpose, we cannot say that the trial court erred in denying Lee\u2019s motion.\nVII. Severance\nFinally, Lee presents the argument that the trial court erred in denying his motion for severance of the crimes relied on by the State as aggravating circumstances. He claims that the failure to sever these offenses violated Rules 21 and 22 of the Arkansas Rules of Criminal Procedure.\nDuring the penalty phase, the State offered evidence that Lee had previously committed three other felonies, elements of which included the use or threat of violence to another person or the creation of a substantial risk of death or serious injury to another person. See Ark. Code Ann. \u00a7 5-4-604(3) (Repl. 1993). The State offered the testimony of three witnesses, all of whom testified that Lee had raped them. The fourth aggravating circumstance alleged was that Lee committed the murder for pecuniary gain. The jury unanimously found that all four aggravating circumstances existed beyond a reasonable doubt at the time of the murder. They also found that there was evidence that Lee\u2019s father abandoned him from birth, that he had no real father, and that he came from a dysfunctional family. However, the jury unanimously found that this evidence did not constitute a mitigating circumstance. The jury concluded that the aggravating circumstances'justified beyond a reasonable doubt a sentence of death.\nRules 21 and 22 of the Arkansas Rules of Criminal Procedure pertain to the joinder and severance of offenses and defendants. Particularly, Rule 22.2 provides that, whenever two or more offenses have been joined for trial solely on the ground that they are of the same or similar character, and the offenses are not part of a single scheme or plan, the defendant shall have a right to a severance of the offenses. In this case, Lee was charged by felony information with a single count of capital murder. In this charging instrument, Lee was accused of the premeditated and deliberate killing of Debra Reese. The three offenses relied on by the State as aggravating circumstances during the penalty phase were not included in the felony information, and were not joined at Lee\u2019s trial with the capital murder charge. Quite simply, the rules regarding severance do not apply, as there were no charges to sever from the capital murder charge.\nLee further claims that the admission of this evidence violated his due process rights and subjected him to cruel and unusual punishment in violation of the federal and state constitutions. However, he cites no convincing authority or facts in support of his bare assertion of error. Again, we will not consider such unsupported arguments on appeal. Matthews v. State, supra.\nAdditionally, Lee claims that the trial court should have viewed the evidence of the three previous felonies in camera before the evidence was presented to the jury during the penalty phase. In support of his argument, Lee cites Miller v. State, 280 Ark. 551, 660 S.W.2d 163 (1983). In that case, the State failed to prove beyond a reasonable doubt that Miller had previously committed a crime involving violence. To the contrary, in this case, the State offered proof that Lee had been convicted of one of the rapes. Regarding the other two offenses, the State offered testimony of the two victims as well as testimony from an FBI agent who testified that the probability of the rapist being someone other than Lee was one in one billion in one of the cases, and one in eighty billion in the other. In light of this evidence, the State proved beyond a reasonable doubt that Lee had committed these offenses. As such, Lee cannot demonstrate that he was prejudiced by the absence of an in camera hearing.\nVIII. Other errors\nThe transcript of the record in this case has been reviewed in accordance with Arkansas Supreme Court Rule 4-3 (h), which requires, in cases in which there is a sentence of life imprisonment or death, that we review all prejudicial errors in accordance with Ark. Code Ann. \u00a7 16-91-113(a) (1987). None have been found.\nAffirmed.\nNewbern, J., concurs.", "type": "majority", "author": "W.H.\u201cDub\u201d Arnold, Chief Justice." }, { "text": "David Newbern, Justice, concurring.\nWe often refer to the \u201csafeguards\u201d and \u201cprotections\u201d that we say preclude the arbitrary imposition of the death penalty. See, e.g., Hill v. State, 289 Ark. 387, 713 S.W.2d 233 (1986); Clines v. State, 280 Ark. 77, 656 S.W.2d 684 (1983). We reject constitutional challenges to our death-penalty statutes and boast that the statutes are carefully drawn and that they comply with the mandates of the United States Supreme Court by curtailing the jury\u2019s discretion in meting out \u201cthis unique penalty,\u201d Gregg v. Georgia, 428 U.S. 153, 188 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.), quoting Furman v. Georgia, 408 U.S. 238, 310 (1972)(Stewart, J., concurring), and by permitting \u201cthe sentencer to make a principled distinction between those who deserve the death penalty and those who do not.\u201d Lewis v. Jeffers, 497 U.S. 764, 776 (1990).\nThe majority opinion in the case at bar may well sap some of the pride we have taken in our laws promoting the orderly narrowing of the class of persons eligible for the death penalty. Today we sanction, as we have done before, the admission of victim-impact evidence in the sentencing phase of a death-penalty case. Although I concur in the affirmance of Mr. Lee\u2019s conviction and sentence, I write separately to express my reservations about the use of victim-impact evidence in capital cases because it may frustrate the statutory scheme designed to provide, as it must, \u201cadequate safeguards against the capricious and freakish imposition of the death penalty.\u201d Collins v. State, 261 Ark. 195, 202, 548 S.W.2d 106, 110 (1977).\nThe death-penalty sentencing procedures that we so often have sustained are as follows. The jury in a capital-murder case is required to impose the death penalty if it unanimously returns written findings that:\n(1) Aggravating circumstances exist beyond a reasonable doubt; and\n(2) Aggravating circumstances outweigh beyond a reasonable doubt all mitigating circumstances found to exist; and\n(3) Aggravating circumstances justify a sentence of death beyond a reasonable doubt.\nArk. Code Ann. \u00a7 5-4-603 (a) (Repl. 1993).\nAs we have held, this statute means that \u201c[a] jury cannot impose a sentence of death until it specifically finds that all three parts of the statute apply.\u201d Hill v. State, 289 Ark. at 397, 713 S.W.2d at 238. Even if the jury finds beyond a reasonable doubt that aggravating circumstances exist and outweigh any mitigating circumstances, \u201cit is still free to return a verdict of fife without parole, simply by finding that the aggravating circumstances do not justify a sentence of death.\u201d Id. quoting Clines v. State, supra. Thus, the imposition of the death penalty is not mandatory. Moreover, \u201cthe trial judge is not required to impose the death penalty in every case in which the jury verdict prescribes it,\u201d id., and \u201c[w]e have demonstrated our readiness to modify the death sentence where it is imposed capriciously ... or where death is unduly harsh under the circumstances.\u201d Clines v. State, 280 Ark. at 84-85, 656 S.W.2d at 687 (citations omitted).\nThe aggravating circumstances that a jury may consider are strictly limited to the following nine:\n(1) The capital murder was committed by a person imprisoned as a result of a felony conviction;\n(2) The capital murder was committed by a person unlawfully at liberty after being sentenced to imprisonment as a result of a felony conviction;\n(3) The person previously committed another felony, an element of which was the use or threat of violence to another person or the creation of a substantial risk of death or serious physical injury to another person;\n(4) The person in the commission of the capital murder knowingly created a great risk of death to a person other than the victim or caused the death of more than one (1) person in the same criminal episode;\n(5) The capital murder was committed for the purpose of avoiding or preventing an arrest or effecting an escape from custody;\n(6) The capital murder was committed for pecuniary gain;\n(7) The capital murder was committed for the purpose of disrupting or hindering the lawful exercise of any government or political function;\n(8) (A) The capital murder was committed in an especially cruel or depraved manner.\n(B) For purposes of this subdivision (8), a capital murder is committed in an especially cruel manner when, as part of a course of conduct intended to inflict mental anguish, serious physical abuse, or torture upon the victim prior to the victim\u2019s death, mental anguish, serious physical abuse, or torture is inflicted. \u201cMental anguish\u201d is defined as the victim\u2019s uncertainty as to his ultimate fate. \u201cSerious physical abuse\u201d is defined as physical abuse that creates a substantial risk of death or that causes protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ. \u201cTorture\u201d is defined as the infliction of extreme physical pain for a prolonged period of time prior to the victim\u2019s death.\n(C) For purposes of this subdivision (8), a capital murder is committed in an especially depraved manner when the person relishes the murder, evidencing debasement or perversion, or shows an indifference to the suffering of the victim and evidences a sense of pleasure in committing the murder; or\n(9) The capital murder was committed by means of a destructive device, bomb, explosive, or similar device which the person planted, hid, or concealed in any place, area, dwelling, building, or structure, or mailed or delivered, or caused to be planted, hidden, concealed, mailed, or delivered, and the person knew that his act or acts would create a great risk- of death to human life.\n\u00a7 5-4-604 (Supp. 1995).\nAlthough \u201cthe jury\u2019s consideration of aggravating circumstances is limited to those enumerated,\u201d the jury\u2019s \u201cconsideration of mitigating circumstances is not necessarily so restricted.\u201d Giles v. State, 261 Ark. 413, 420, 549 S.W.2d 479, 483 (1977). The General Assembly has provided that\n[mjitigating circumstances shall include, but are not limited to, the following:\n(1) The capital murder was committed while the defendant was under extreme mental or emotional disturbance;\n(2) The capital murder was committed while the defendant was acting under unusual pressures or influences or under the domination of another person;\n(3) The capital murder was committed while the capacity of the defendant to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect, intoxication, or drug abuse;\n(4) The youth of the defendant at the time of the commission of the capital murder;\n(5) The capital murder was committed by another person and the defendant was an accomplice and his participation relatively minor;\n(6) The defendant has no significant history of prior criminal activity.\nArk. Code Ann. \u00a7 5-4-605 (Repl. 1993). See Sheridan v. State, 313 Ark. 23, 38, 852 S.W.2d 772, 779 (1993) (stating \u201cthe defense must be allowed during the sentencing phase to introduce any relevant mitigating evidence the defense proffers concerning the character or history of the offender or the circumstances of the offense\u201d)(citations omitted)(emphasis added).\nThe statutory provisions are quoted at length to demonstrate exactly what the jury is permitted to consider in determining whether to impose the death sentence. The statutes prescribe a tidy formula. In determining whether the death penalty is justified, the jury must consider only whether the evidence has demonstrated beyond a reasonable doubt that (1) one or more of the enumerated aggravating circumstances exist in the case at hand; (2) the aggravating circumstances outweigh any mitigating circumstances; and (3) the aggravating circumstances justify the imposition of the death penalty.\nWhen the jury is requested to impose the death penalty in a capital case, its sole task during the penalty phase is to evaluate the evidence of aggravating and mitigating circumstances and make certain findings with respect to that evidence. Nothing more, and nothing less, may figure into the equation according to \u00a7 5-4-603(a). Therefore, as our cases have intimated, the Trial Court should allow into evidence during the sentencing phase of a death-penalty case only that which is relevant to the aggravating and mitigating circumstances alleged by the parties. See Hendrickson v. State, 285 Ark. 462, 466, 688 S.W.2d 295, 298 (1985)(stat-ing \u201cthe evidence offered must be probative of some issue to be properly considered in the penalty phase\u201d). Where the State seeks the death penalty, the only issue that is \u201cproperly considered\u201d by the sentencing-phase jury is whether aggravating circumstances exist, whether they justify the imposition of the death penalty, and whether they outweigh the mitigating circumstances. Thus, the evidence presented to the jury during the sentencing phase of a death-penalty case should be relevant to these issues.\nThis is the regime that we have found to be constitutionally sound. As we have held, a sentencing structure \u2014 such as the one created by Ark. Code Ann. \u00a7\u00a7 5-4-603 (a) to 5-4-605 and their predecessors \u2014 that permits the jury to impose the death penalty after considering evidence of aggravating and mitigating circumstances and making certain findings with respect to that evidence \u201cprovides adequate guidelines, so limiting and directing the exercise of the jury\u2019s discretion that an arbitrary, capricious, wanton or freakish exercise of that discretion is improbable.\u201d Collins v. State, 261 Ark. at 203, 548 S.W.2d at 111. This particular procedure, we have found, passes constitutional muster because it \u201cgenuinely narrow[s] the class of persons eligible for the death penalty and . . . reasonably justifies] the imposition of a more severe sentence on the defendant compared to others found guilty of murder.\u201d Lowenfield v. Phelps, 484 U.S. 231, 244 (1988), quoting Zant v. Stephens, 462 U.S. 862, 877 (1983). According to our cases, it is entirely appropriate for the jury to perform the function of narrowing the class of death-eligible defendants at the penalty phase of a bifurcated trial. See Johnson v. State, 308 Ark. 7, 823 S.W.2d 800 (1992).\nMy concern is that the admission of victim-impact evidence in capital sentencing proceedings pursuant to Ark. Code Ann. \u00a7 5-4-602(4) (Repl. 1993) may, without appropriate limitations, make undesirable and unintended changes in the accepted method by which juries in Arkansas have determined whether the \u201cunique penalty\u201d of death is justified in a given case.\nAs noted, \u00a7 5-4-603 (a) mandates that the jury\u2019s decision to impose the death penalty rest solely upon a careful evaluation of the evidence, if any, establishing aggravating and mitigating circumstances as they are defined by \u00a7\u00a7 5-4-604 and 5-4-605. The evidence that a jury receives should be relevant to the existence, or non-existence, of aggravating or mitigating circumstances. Despite the logic of this position, and despite the clear mandate of \u00a7 5-4-603(a), \u00a7 5-4-602(4) permits, without restriction, the admission of victim-impact evidence in the sentencing phase of a death-penalty case. Section 5-4-602(4) provides as follows:\nIn determining sentence, evidence may be presented to the jury as to any matters relating to aggravating circumstances enumerated in \u00a7 5-4-604, any mitigating circumstances, or any other matter relevant to punishment, including, but not limited to, victim impact evidence, provided that the defendant and the state are accorded an opportunity to rebut such evidence. Evidence as to any mitigating circumstances may be presented by either the state or the defendant regardless of its admissibility under the rules governing admission of evidence in trials of criminal matters, but mitigation evidence must be relevant to the issue of punishment, including, but not limited to, the nature and circumstances of the crime, and the defendant\u2019s character, background, history, and mental and physical condition as set forth in \u00a7 5-4-605. The admissibility of evidence relevant to the aggravating circumstances set forth in \u00a7 5-4-604 shall be governed by the rules governing the admission of evidence in trials of criminal matters. Any evidence admitted at the trial relevant to punishment may be considered by the jury without the necessity of reintroducing it at the sentencing proceeding. The state and the defendant or his counsel shall be permitted to present argument respecting sentencing. The state shall open the argument. The defendant shall be permitted to reply. The state shall then be permitted to reply in rebuttal.\nArk. Code Ann. \u00a7 5-4-602(4) (Repl. 19,93) (emphasis added).\nThe jury\u2019s ability to perform its duty under \u00a7 5-4-603 (a) could be undermined by the admission of victim-impact evidence pursuant to \u00a7 5-4-602(4). Section 5-4-603(a) requires the jury to consider only evidence of aggravating and mitigating circumstances in deciding whether to impose the death penalty. In the sentencing phase of a death-penalty case, therefore, the jury, in performing the \u201cnarrowing function\u201d described above, should be allowed to consider only that evidence that tends to establish the existence, or nonexistence, of aggravating and mitigating circumstances.\nInstead, the jury in the penalty phase is permitted by \u00a7 602(4) to consider as well any victim-impact evidence that is merely \u201crelevant to punishment.\u201d The danger posed by this language is that it co\u00fcld be construed as permitting the introduction of victim-impact evidence that, while \u201crelevant to punishment\u201d in the abstract, has absolutely no bearing on the only question that the jury is supposed to consider in a death-penalty case \u2014 that is, whether imposition of the death penalty is justified under \u00a7 5-4-603(a) in light of the evidence concerning aggravating and mitigating circumstances.\nIf victim-impact evidence is irrelevant to this determination, then its admission in the sentencing phase would unquestionably interfere with the jury\u2019s ability to perform its narrowing function under \u00a7 603(a). The jury clearly should not be permitted to receive evidence that has no tendency to make the existence of aggravating or mitigating circumstances \u201cmore probable or less probable than it would be without the evidence.\u201d Ark. R. Evid. 401. Moreover, there is no question that \u00a7\u00a7 603(a), 604, and 605 do not permit the jury to rely on victim-impact evidence in determining whether aggravating circumstances exist, whether they justify the imposition of the death penalty, and whether they outweigh any mitigating circumstances. Furthermore, \u00a7 602(4), in providing for the admission of victim-impact evidence, did not create a \u201cnew\u201d aggravating circumstance that could justify imposition of the death penalty under \u00a7 603(a). We said as much in Nooner v. State, 322 Ark. 87, 109, 907 S.W.2d 677, 689 (1995), and it is also evident that the fact that a murder had a certain \u201cimpact\u201d on the victim or the victim\u2019s survivors could not, under the U.S. Supreme Court\u2019s death-penalty jurisprudence, constitute a valid aggravating circumstance because it would not \u201cgenuinely narrow the class of persons eligible for the death penalty\u201d or \u201creasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.\u201d Zant v. Stephens, supra. Every murder results in a deleterious impact on the victim or the victim\u2019s survivors, and thus evidence establishing such an impact could not permit the jury to perform its narrowing function.\nTo be admissible in a capital sentencing procedure, victim-impact evidence must be direcdy relevant to an aggravating or mitigating circumstance. Although \u00a7 5-4-602(4) provides that victim-impact evidence may be presented if it is \u201crelevant to punishment,\u201d that language, at least in the context of a death-penalty case, should be read in conjunction with \u00a7 5-4-603(a), which requires the jury to consider only evidence bearing on aggravating and mitigating circumstances in determining whether to impose the death penalty. A relevancy-based limitation on the use of victim-impact evidence is not prohibited by the language of \u00a7 5-4-602(4). In fact, unless these statutes are interpreted as imposing this limitation, the statutes will have the absurd result of permitting the admission of evidence that can have no effect on the jury\u2019s decision to impose the death penalty. In a death-penalty case, victim-impact evidence should not be admitted if it will distract the jury from completing the task assigned to it by \u00a7 603(a). Evidence that is irrelevant to an aggravating or mitigating circumstance would do just that.\nThe U.S. Supreme Court held in Payne v. Tennessee, 501 U.S. 808 (1991), that the Eighth Amendment to the U.S. Constitution imposes no per se bar to the introduction of victim-impact evidence in a capital sentencing proceeding. In the Payne case the Court held\nthat if the State chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar. A State may legitimately conclude that evidence about the victim and about the impact of the murder on the victim\u2019s family is relevant to the jury\u2019s decision as to whether or not the death penalty should be imposed. There is no reason to treat such evidence differently than other relevant evidence is treated.\nPayne v. Tennessee, 501 U.S. at 827. The Court reasoned that victim-impact evidence \u201cis simply another form or method of informing the sentencing authority about the specific harm caused by the crime in question, evidence of a general type long considered by sentencing authorities,\u201d and that such evidence could reasonably assist the jury in \u201cassessing] meaningfully the defendant\u2019s moral culpability and blameworthiness.\u201d Id. at 825. See generally K. Elizabeth Whitehead, Mourning Becomes Electric: Payne v. Tennessee\u2019s Allowance of Victim Impact Statements During Capital Sentencing Proceedings, 45 Arjec. L. Rev. 531 (1992).\nAlthough it is difficult to think of victim-impact evidence that might add to any of the statutory mitigating factors, perhaps such evidence could relate to one of the statutory aggravating factors, although it is hard to imagine how unless it would be admissible regardless as direct evidence of one of the statutory aggravating factors. Given the manner in which we have attempted to satisfy the constitutional requirement of narrowing the class of persons eligible for the death penalty, however, we should not allow victim-impact evidence in a capital sentencing proceeding unless it is directly relevant to the elements of mitigation and aggravation specified in the statutes. See, e.g., Lambert v. State, 1996 WL 744864 (to be reported at 675 N.E.2d 1060,_ (Ind. 1996)) (holding that, \u201cin death penalty cases, the only admissible victim impact testimony is that testimony which is relevant to a statutory aggravating or mitigating circumstance\u201d). See also Bivins v. State, 642 N.E.2d 928 (Ind. 1994).\nIn the case at bar, I have serious doubts whether the victim-impact evidence presented to the jury was relevant to any of the aggravating and mitigating circumstances raised by the parties. Mr. Lee did not, however, seek to exclude that evidence on the basis of relevancy. Likewise, on appeal, Mr. Lee raises no relevancy-based argument. He simply argues that the victim-impact statute violates due process and that we should reconsider our previous holdings affirming the validity of \u00a7 5-4-602(4). I agree that suppression of the victim-impact evidence in this case was not required on the basis of the arguments presented to the Trial Court and to this Court on appeal, and I therefore concur in the result reached by the majority.", "type": "concurrence", "author": "David Newbern, Justice, concurring." } ], "attorneys": [ "Montgomery, Adams & Wyatt, P.L.C., by; Dale E. Adams, for appellant.", "Winston Bryant, Att\u2019y Gen., by: Kent G. Holt, Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Ledell LEE v. STATE of Arkansas\nCR 96-553\n942 S.W.2d 231\nSupreme Court of Arkansas\nOpinion delivered March 24, 1997\n[Petition for rehearing denied May 5, 1997.]\nMontgomery, Adams & Wyatt, P.L.C., by; Dale E. Adams, for appellant.\nWinston Bryant, Att\u2019y Gen., by: Kent G. Holt, Asst. Att\u2019y Gen., for appellee." }, "file_name": "0692-01", "first_page_order": 726, "last_page_order": 749 }