{ "id": 51299, "name": "Charles A. \"Jack\" WALLS v. STATE of Arkansas", "name_abbreviation": "Walls v. State", "decision_date": "1999-03-04", "docket_number": "CR 98-521", "first_page": "490", "last_page": "505", "citations": [ { "type": "official", "cite": "336 Ark. 490" }, { "type": "parallel", "cite": "986 SW.2d 397" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "292 Ark. 362", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1871152 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark/292/0362-01" ] }, { "cite": "511 U.S. 738", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1147855 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/us/511/0738-01" ] }, { "cite": "315 Ark. 646", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1910461 ], "weight": 4, "year": 1994, "pin_cites": [ { "page": "650" }, { "page": "696" } ], "opinion_index": 0, "case_paths": [ "/ark/315/0646-01" ] }, { "cite": "319 Ark. 743", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1453574 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/319/0743-01" ] }, { "cite": "325 Ark. 38", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 369308 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/325/0038-01" ] }, { "cite": "311 Ark. 1", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1897005 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/311/0001-01" ] }, { "cite": "311 Ark. 416", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1897008 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/311/0416-01" ] }, { "cite": "332 Ark. 138", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 377599 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "796" } ], "opinion_index": 0, "case_paths": [ "/ark/332/0138-01" ] }, { "cite": "318 Ark. 408", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1455851 ], "weight": 4, "year": 1994, "pin_cites": [ { "page": "413" }, { "page": "278" }, { "page": "415" } ], "opinion_index": 0, "case_paths": [ "/ark/318/0408-01" ] }, { "cite": "501 U.S. 808", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1108176 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/us/501/0808-01" ] }, { "cite": "322 Ark. 87", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1447576 ], "weight": 3, "year": 1995, "pin_cites": [ { "page": "143" } ], "opinion_index": 0, "case_paths": [ "/ark/322/0087-01" ] }, { "cite": "324 Ark. 178", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 9159133 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/324/0178-01" ] }, { "cite": "327 Ark. 727", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 922591 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/327/0727-01" ] }, { "cite": "331 Ark. 79", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1604767 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/331/0079-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-97-103", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "pin_cites": [ { "page": "(5)" } ], "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 16", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "opinion_index": 0 }, { "cite": "326 Ark. 56", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 12020323 ], "weight": 2, "year": 1996, "opinion_index": 1, "case_paths": [ "/ark/326/0056-01" ] }, { "cite": "404 U.S. 443", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6174368 ], "year": 1972, "pin_cites": [ { "page": "446" } ], "opinion_index": 1, "case_paths": [ "/us/404/0443-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-90-1112", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "opinion_index": 1 }, { "cite": "321 Ark. 160", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1449588 ], "weight": 2, "year": 1995, "opinion_index": 1, "case_paths": [ "/ark/321/0160-01" ] }, { "cite": "511 U.S. 738", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1147855 ], "year": 1994, "pin_cites": [ { "page": "747", "parenthetical": "quoting United States v. Tucker, 404 U.S. 443, 446 (1972" } ], "opinion_index": 1, "case_paths": [ "/us/511/0738-01" ] }, { "cite": "318 Ark. 408", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1455851 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "413" } ], "opinion_index": 1, "case_paths": [ "/ark/318/0408-01" ] } ], "analysis": { "cardinality": 1135, "char_count": 28955, "ocr_confidence": 0.775, "pagerank": { "raw": 2.12358596694517e-07, "percentile": 0.764886292598526 }, "sha256": "d0c4c21c30e59c5b2f3d484241f55422d4833e6bb0102008db1d7d3da650cdad", "simhash": "1:726f6d047e8e2590", "word_count": 4777 }, "last_updated": "2023-07-14T19:29:35.905877+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Glaze, Corbin, and Smith, JJ., dissent.", "Glaze and Corbin, JJ., join." ], "parties": [ "Charles A. \u201cJack\u201d WALLS v. STATE of Arkansas" ], "opinions": [ { "text": "Robert L. Brown, Justice.\nAppellant Charles A. \"Jack\" Walls appeals from a sentence given by the circuit judge following his guilty plea to five counts of rape and a plea of nolo contendere to one count of rape. The circuit judge sentenced Walls to two forty-year terms and four life terms in prison, to be served consecutively. Walls states several grounds for appeal, including a claim that the circuit judge erred in allowing and then considering for sentencing purposes irrelevant evidence relating to Walls\u2019s culpability for the murder of the Stocks family. We agree with Walls that this was an abuse of discretion, and we reverse and remand for resentencing.\nJack Walls was a boy scout troop leader who sexually molested boys under his care. After he pled guilty to four counts of raping the boys and one count of no contest, two counts of solicitation to commit murder involving the Hogan family were nol prossed. On January 22, 1998, the circuit judge conducted a sentencing hearing. At the hearing, the prosecutor called the boys who were Walls\u2019s victims as witnesses and in some instances their parents and grandparents. It evolved at the hearing that Walls introduced his victims to weapons, alcohol, pornography, and sexual acts with him. The focal point of the hearing was testimony relating to the impact of Walls\u2019s actions, and the rapes in particular, on the lives of the boys.\nOur sentencing law provides that in the sentencing phase of the trial, evidence relevant to sentencing may include victim-impact evidence and statements. See Ark. Code Ann. \u00a7 16\u2014 97-103(4) (Supp. 1997). The sentencing statute further provides that relevant character evidence and evidence of aggravating and mitigating circumstances may be allowed. See Ark. Code Ann. \u00a7 16-97-103(5) & (6). Our caselaw has primarily dealt with the relevancy of victim-impact evidence in the context of a murder victim. See, e.g., Noel v. State, 331 Ark. 79, 960 S.W.2d 439 (1998); Hicks v. State, 327 Ark. 727, 940 S.W.2d 855 (1997); Kemp v. State, 324 Ark. 178, 919 S.W.2d 943 (1996); Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995). In Noel v. State, for example, we stated that relevant victim-impact evidence is evidence that informs the jury of the toll of the murder on the victim\u2019s family. Citing Payne v. Tennessee, 501 U.S. 808 (1992), we said in Noel that when victim-impact evidence is unduly prejudicial, it may render the trial fundamentally unfair and violate the Due Process Clause.\nWe begin our analysis by noting that the circuit judge was in error when he twice overruled objections by defense counsel and stated that the rules of evidence do not apply to sentencing hearings or to victim-impact evidence in particular. In 1994, we held that the evidence listed in \u00a7 16-97-103, including victim-impact evidence, \u201cmust be governed by our rules of admissibility and exclusion; otherwise, these proceedings would not pass constitutional muster.\u201d Hill v. State, 318 Ark. 408, 413, 887 S.W.2d 275, 278 (1994).\nWe turn then to whether testimony was received and weighed by the circuit judge in sentencing that was irrelevant and whether prejudice resulted. Prior to Walls\u2019s sentencing hearing, one of his victims, Heath Stocks, had been convicted of murdering his mother, father, and sister. Heath pled guilty and was sentenced to life in prison without parole. At Walls\u2019s sentencing hearing, his defense counsel first objected on grounds of relevancy to the testimony of Dorothy Stocks, Heath\u2019s grandmother, about the Stocks family murders. Delving into the background of the murdered family members, the prosecutor had asked about the occupation of Joe and Barbara Stocks and what Heather, Heath\u2019s sister, was like. After defense counsel objected, the prosecutor answered that there was no jury involved at the hearing, and she added that she would \u201crelate\u201d the Stocks deaths as far as their effect on Heath. The circuit judge allowed her to proceed. Defense counsel objected a second time on relevancy grounds to Dorothy Stocks\u2019s testimony about the last time she saw Heath before the murders. But the circuit judge again overruled the objection on the basis that these were victim-impact statements and not evidentiary matters.\nHeath\u2019s other grandmother, Annie May Harris, was called as the next witness. She testified that her daughter, Barbara Stocks, had told her that she had found Heath and Walls in bed together in her house. Mrs. Harris told the judge that the \u201chorrible secret\u201d grew inside Heath until he exploded, and his family was gone. She said that Walls told Heath he was training him to be a \u201chit man.\u201d At that point, defense counsel objected for the same purpose as his previous objection and said that this was \u201chearsay on hearsay on hearsay\u201d and that there was no way to cross-examine the witness on these assertions. The circuit judge reminded defense counsel that he was \u201cnot a jury.\u201d The following colloquy ensued where the circuit judge assured defense counsel that he could separate the relevant from the irrelevant:\nThe Court: You\u2019re going to have to understand that I am trained in the law, and that I will take what information and the facts that they give me and disseminate that and use \u2014\nDefense Counsel: I just wanted to \u2014\nThe Court: \u2014 what\u2019s appropriate and discard that. Part of the reason for a victim impact statement is for healing and therapy, and so I\u2019m going to allow them to do this.\nDefense Counsel: I just didn\u2019t want to look like an idiot sitting here, Judge, and not say anything.\nThe Court: You\u2019ve done your client an excellent job, Mr. Alexander.\nThe next witness called was Heath Stocks. He described how Walls introduced him to alcohol and told the judge that he was eleven or twelve when Walls first raped him. He also testified that Walls introduced him to pornography and taught him how to shoot at human targets. The prosecutor then asked Heath whether Walls talked to him about killing people. At that point, defense counsel objected again on the basis that this victim-impact evidence had nothing to do with solicitation to commit murder. The prosecutor responded that Walls manipulated and controlled Heath. Defense counsel answered that he would like to move in limine to prohibit the prosecutor from going into solicitation to murder because those charges related to the Hogan family and had been dismissed. The circuit judge interrupted and said Heath was a victim and that he would listen to whatever Walls did to Heath that \u201cimpacted his life.\u201d The circuit judge pointed out that the prosecutor had not yet asked about solicitation to murder or the Hogans.\nThe prosecutor injected that there were \u201ctwo different circumstances\u201d she would be talking about, which was an obvious reference to Walls\u2019s involvement regarding the potential murder of the Hogans and the actual murder of the Stockses. The prosecutor added that she was allowed to go into other \u201cbad acts\u201d as part of victim-impact evidence. The discussion ended with the judge saying he would not include dismissed charges in Walls\u2019s sentence:\nDefense Counsel: Well, if you\u2019re going to consider those things, then we should have \u25a0 \u2014 \u25a0 we could have pled guilty to everything. Because, if you\u2019re going to consider solicitation of murder that we were \u2014 that we didn\u2019t plead guilty to, then \u2014\nThe Court: Mr. Allen, you are assuming that this Court would then, in sentencing, include charges that have been dismissed, and that\u2019s not going to happen.\nBut I am entitled to know the mind-set of these people. I am entitled \u2014 I mean, I \u2014 if you choose, I\u2019m entitled to know the mind-set of your client. But the fact that he doesn\u2019t want to say anything has absolutely no bearing on me.\nBut if these people are going to testify to things she can relate up to how it has impacted them, I\u2019m going to allow it.\nWith the assurance that uncharged acts would not be included for sentencing purposes but that the circuit judge would listen to whatever impacted Heath\u2019s life, the sentencing hearing continued.\nAfter defense counsel\u2019s objection was overruled, the prosecutor elicited from Heath a vivid description of Walls\u2019s solicitation to murder the Hogans and an even more graphic recounting of Walls\u2019s involvement in the Stocks murders. The essence of the testimony was that Walls had trained Heath to be an assassin. After Heath told his mother and sister about his homosexual relationship with Walls, he told Walls what he had done. According to Heath, Walls told him to \u201ctake care of the problem,\u201d which he interpreted to mean \u201ckill it.\u201d Defense' counsel, on cross-examination, explored whether Heath blamed Walls for the murders in an effort to establish that Heath committed the murders, not Walls.\nThe prosecutor next called Robert Marble, minister of the United Methodist Church in Concord, as a witness. Reverend Marble testified that Heath told him on two occasions that Walls had told him to kill his family. Defense counsel did not object to this testimony.\nOn February 4, 1998, the circuit judge sentenced Walls. Before pronouncing sentence, the judge made a lengthy statement about the case. Towards the end of his statement, the judge said:\nI do not have to believe Heath Stocks\u2019s testimony that you told him to kill his testimony (sic) to know that he was your finest creation, and perhaps most vulnerable victim, and to know that he became what you taught him to be. I only know that, in the very least, you are indirecdy responsible for the deaths of Joe, Barbara and Heather Stocks.\nThe circuit judge followed this with a finding that \u201cmany of these young men stalked the Hogans for you [Walls].\u201d Shortly thereafter the circuit judge pronounced sentence.\nI. Proper Objection\nBefore addressing the merits of whether Walls\u2019s culpability for the Stocks murders was irrelevant and unduly prejudicial victim-impact evidence, we must determine whether the issue was properly preserved for our review. The State contends that this evidence, at times, was allowed into evidence without objection, and, as a consequence, we cannot review it. We disagree.\nWe first consider it significant that the sentencing hearing was conducted before a judge, not a jury. We have emphasized many times in both civil and criminal cases that the circumstances of a bench trial are different with respect to relevant evidence because a judge is better equipped to sort out what is pertinent to the issue at hand. See, e.g., Stewart v. State, 332 Ark. 138, 964 S.W.2d 793 (1998); In Re Adoption of K.F.H., 311 Ark. 416, 844 S.W.2d 343 (1993); Rich Mountain Elec. Coop. v. Revels, 311 Ark. 1, 841 S.W.2d 151 (1992). In Stewart, we addressed the situation where evidence in a bench trial had been contested by defense counsel by a motion in limine and the motion had been overruled. Unlike a jury trial, we held that subsequent objections to the testimony were not necessary:\nIn reaching this conclusion, we are not unmindful of two recent cases where we held that a contemporaneous objection is required in order to preserve for appeal issues that were raised in a motion in hmine. Slocum v. State, 325 Ark. 38, 924 S.W.2d 237 (1996); Massengale v. State, 319 Ark. 743, 894 S.W.2d 594 (1995). We, however, find these cases distinguishable because they involved jury trials, instead of a bench trial as in this case. If a contemporaneous objection is not made at the time the evidence is offered during a jury trial, the proverbial bell will have been rung and the jury prejudiced. However, when the contested evidence is mentioned during a bench trial, there is no risk of prejudice because a trial judge is able to consider evidence only for its proper purpose.\nStewart, 322 Ark. at 143, 964 S.W.2d at 796. (Emphasis added.)\nIn the case before us, defense counsel objected to the testimony of Heath Stocks\u2019s two grandmothers. Counsel contested the testimony of Dorothy Stocks, who was asked to give background information about the murdered Stocks family members. Defense counsel objected to the testimony of Annie Mae Harris when she testified that Heath told her that Walls was training him to be a \u201chit man.\u201d Finally, defense counsel objected when the prosecutor asked Heath whether Walls talked to him about killing people. Defense counsel argued victim impact had nothing to do with the dismissed solicitation-to-murder charges and moved in limine to that effect, but the circuit judge responded that he would listen to whatever Walls did to Heath that had an impact on Heath\u2019s fife. The scope of the circuit judge\u2019s ruling was clear that he would allow as victim-impact testimony whatever Walls said or did to Heath, regardless of whether it embraced the solicited murders of the Hogans or the actual murders of the Stocks family. Under these circumstances where a bench trial is involved and where the ruling has been made, continuous objections to the same testimony on relevancy grounds are not required. We hold that the issue is preserved for our review even though defense counsel did not object to the later testimony of Reverend Marble.\nThere is one final point concerning preservation of this issue. After the ruling by the circuit judge that he would allow all testimony showing any impact on Heath caused by the rapes, defense counsel cross-examined Heath about Walls\u2019s role in the Stocks murders. The question is whether by doing so, defense counsel waived any objection to this evidence. We think not. In an analogous case, we held that plaintiffs counsel did not waive an objection made in a motion in limine regarding marijuana use by the plaintiff in a medical malpractice case. See Burnett v. Fowler, 315 Ark. 646, 869 S.W.2d 694 (1994). In Fowler, the motion was overruled. After the ruling, plaintiffs counsel was first to present to the jury evidence of marijuana use by the plaintiff. The jury returned a defendant\u2019s verdict, and the plaintiff moved for a new trial, which the trial court granted on the basis that the evidence of marijuana use had been too prejudicial. In holding that plaintiff s first introduction of the marijuana usage did not constitute a waiver of the issue on appeal, we said: \u201cWe see no reason why, once the matter of admissibility has been settled, either party may not use the evidence in question.\u201d Fowler, 315 Ark. at 650, 869 S.W.2d at 696.\nSimilarly, in the instant case the circuit judge\u2019s ruling allowed the prosecutor to develop Walls\u2019s role in the Stocks murders. After the ruling, the door was open, and defense counsel were obliged to protect their client on the issue as best they could. We see no waiver by defense counsel in this regard.\nII. Victim Impact\nWe turn then to whether evidence of Walls\u2019s involvement in the Stocks murders was relevant victim-impact evidence. We conclude that it was not. As already stated, the policy reasons for distinguishing jury trials from bench trials is clear. A judge in a bench trial is better able to separate the evidentiary wheat from the chaff in deciding what is relevant in making his or her decision. In this case, the prosecutor argued to the circuit judge at one point that because a jury was not involved, he should allow the grandmother to testify to the Stocks murders. The circuit judge picked up on the same theme and said on two occasions that he could separate the relevant evidence from what was irrelevant and added at one point that he would not include dismissed offenses in his sentence.\nWhat lies at the heart of our decision today is that the circuit judge, by his own words, held Walls responsible for the Stocks murders. The judge said: \u201cI only know that, in the very least, you are indirectly responsible for the deaths of Joe, Barbara and Heather Stocks.\u201d This, of course, was the very victim-impact evidence that Walls\u2019s counsel attempted to exclude but was thwarted in doing so. Thus, if it was improper and unduly prejudicial for this evidence to be allowed and considered by the circuit judge, Walls\u2019s sentence must be reversed.\nWe focus again on what is proper victim-impact testimony. This, of course, was a sentencing hearing for multiple rapes of young boys to which Walls pled guilty. The offenses described by the boys and their parents were vile and sickening. But multiple murders of the Stocks family were not part of Walls\u2019s guilty plea. Walls had been charged with solicitation to commit murder with respect to the Hogan family, but those charges had been nol pressed, apparently in association with Walls\u2019s guilty pleas. Walls had never been charged in connection with the Stocks family murders. Despite these facts, the circuit judge heard evidence, as victim-impact evidence, that Walls controlled Heath as a hit man and ordered him to murder his family. The judge ultimately concluded that this was true.\nWe cannot sanction evidence of another crime as legitimate victim-impact evidence. Clearly, it is not relevant. On the issue of whether it was unduly prejudicial, that goes without saying. The State argues that Walls\u2019s counsel made no objection under Ark. R. Evid. 403 that the unfair prejudice of the testimony of the Stocks murders outweighed its probative value as victim-impact evidence. We agree that an objection couched in Rule 403 terms was not made, though an objection to the judge\u2019s consideration of dismissed offenses was clearly offered. There is, of course, the point that the circuit judge had previously stated that the rules of evidence would not apply to victim-impact evidence. Furthermore, we have previously considered prejudice in murder cases to be part of the analysis of what is relevant victim-impact evidence under the sentencing statute, \u00a7 16-97-103(4). See, e.g., Noel v. State, supra; Hicks v. State, supra. See also Payne v. Tennessee, supra.\nThe State continues that the Stocks murders were relevant to show the character of Walls under \u00a7 16-97-104(5). As authority, the State cites us to Nichols v. United States, 511 U.S. 738 (1994). The Nichols case involved whether a sentence for drug charges could be enhanced based on an uncounseled DUI misdemeanor conviction. In its discussion, the Court acknowledged that past criminal behavior could be considered by a sentencing court even when no conviction resulted. However, the Court in Nichols stated that such prior criminal behavior must be proved by a preponderance of the evidence.\nIn the case before us, the record does not reveal any notice to defense counsel that the issue of Walls\u2019s responsibility for the Stocks murders was to be tried to the circuit judge for sentencing purposes. The record only discloses a motion in limine by the prosecutor to disclose other sexual acts of a pedophile under Ark. R. Evid. 404(b). There is also the fact that the circuit judge stated he would not consider dismissed sohcitation-to-murder charges in connection with the Hogans. The Stocks murders came in solely under the cloak of victim-impact evidence. The Nichols case simply does not control this issue.\nThe State further contends that the solicitation-to-murder evidence was admissible as an aggravating circumstance under our sentencing law, \u00a7 16-97-103(6). The State cites Hill v. State, supra, as authority. We held in Hill that evidence of a prior, uncharged robbery attempt was admissible in the sentencing phase, following a guilty plea for robbery against the same victim. But we made it clear in Hill that such relevant evidence should only come in \u201cin the absence of prejudice.\u201d Hill, 318 Ark. at 415, 887 S.W.2d at 278 (citing Pickens v. State, 292 Ark. 362, 730 S.W.2d 230 (1987)). We concluded in Hill that the evidence was not prejudicial to the defendant. In the instant case, however, we cannot reach that same conclusion. Walls, without question, was prejudiced by the evidence of the Stocks murders, for the reasons already stated.\nWe hold that the circuit judge abused his discretion (1) when he allowed this testimony about the Stocks murders in as victim-impact evidence, and (2) when he held Walls responsible for those murders in fixing his sentence.\nThis issue really brings into sharp focus the protections afforded defendants in the criminal justice system. No matter how reprehensible the crimes committed, it is an article of faith in criminal law that we do not sentence for crimes that have not been proven. Nor should victim-impact evidence be used as a vehicle for testimony that Walls was an accessory to the murder of the Stocks family. We recognize how difficult a second sentencing hearing will be for the victims and their families. Nevertheless, if the criminal justice system is to have any credence at all, it must adhere to certain basic principles. It is unfair in the extreme for the sentencing judge to consider testimony of an uncharged, unproven crime for sentencing purposes under the aegis of victim-impact testimony.\nBecause the other issues raised for reversal are not likely to reoccur on resentencing, we do not address them.\nReversed and remanded.\nGlaze, Corbin, and Smith, JJ., dissent.", "type": "majority", "author": "Robert L. Brown, Justice." }, { "text": "Lavenski R.Smith, Justice,\ndissenting. I disagree with the majority the majority that reversal is warranted in this case. The majority considers the court\u2019s statement, \u201cI only know that, in the very least, you are indirectly responsible for the deaths of Joe, Barbara and Heather Stocks\u201d an indication that the court intended to sentence Walls for uncharged crimes.\nThe sentence actually imposed indicates the court sentenced appellant in accordance with the law for the crimes he admittedly did commit. Appellant pleaded guilty to five counts of rape and no contest to a sixth rape count. All these offenses were committed repetitively against minor boys for nearly a decade. Appellant misused a position of trust to gain access to young boys and then sexually exploited them in base and despicable ways. Under our criminal code rape is a Class Y felony punishable by not less than ten (10) years and not more than forty (40) years or life. The trial court sentenced appellant to four consecutive life terms and two terms of forty (40) years. Given the heinous nature of the defendant\u2019s confessed acts I cannot say this sentence was indicative of prejudice.\nThe majority agrees with appellant that certain procedural improprieties during the hearing necessitate reversal. However, our cases are clear that only prejudicial error justifies reversal of the trial court. Phillips v. State, 321 Ark. 160, 900 S.W.2d 526 (1995). The sentence imposed does not indicate prejudice but was within applicable statutory parameters and commensurate with the nature of the offenses committed. I cannot say that upon remand the sentence imposed could be appreciably different. The abstract contains no record of appellant having objected to the sentence at the time of its imposition.\nThe court\u2019s statements regarding the rules of evidence were at best not artful and at worst misstatements of law. There is no question as to the applicability of the rules of evidence to the sen-tending phase of bifurcated criminal trials. They do apply. Hill v. State, 318 Ark. 408, 413, 887 S.W.2d 275 (1994). As we stated in Hill, \u201cThe introduction of evidence during this stage must be governed by our rules of admissibility and exclusion; otherwise, these proceedings would not pass constitutional muster, which is all the more reason to permit appeal.\u201d While the applicability of the evidence rules is clear, the meaning of the trial court\u2019s statements is not.\nNeither of the court\u2019s statements are precise enough for us to know with certainty what meaning the court ascribed to them but to the extent they indicate that the rules of evidence would not apply in this defendant\u2019s sentencing hearing they were in error. However, it is apparent from the record that the court did apply the rules of evidence during the hearing. On all occasions appearing in the record, the court entertained and, when requested, ruled on evidentiary issues where raised. Rather than an abandonment of the rules it is much more plausible that the court intended to apply the rules and yet permit victims and their families to express themselves freely regarding the negative consequences of appellant\u2019s actions. The statute authorizing victim-impact statements permits testimony regarding the effects of the crime on the victim, the circumstances surrounding the crime, and the manner in which the crime was perpetrated. Ark. Code Ann. \u00a7 16-90-1112 (1987). This is constitutionally permissible. According to the U.S. Supreme Court, \u201c \u2018as a general proposition, a sentencing judge may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come.\u2019\u201d Nichols v. United States, 511 U.S. 738, 747 (1994) (quoting United States v. Tucker, 404 U.S. 443, 446 (1972).\nFurthermore, it is not at all certain that the court made a definitive ruling that the rules were not going to be applied. If appellant had any doubt about the rules\u2019 applicability an objection would have been in order. Objections are intended to apprise the court of error in order to obtain an appropriate ruling or to preserve an argument for appeal. Brown v. State, 326 Ark. 56, 931 S.W. 2d. 80 (1996). Apparently, appellant assumed that the rules would be applied as he continued to make objections on these same and on other grounds for evidentiary issues subsequent to these remarks by the court.\nI disagree that the testimony of Dorothy Stocks regarding Joe, Barbara, and Heather Stocks was irrelevant. The Stockses were the immediate family of appellant\u2019s victim, Heath Stocks. Appellant contends testimony concerning these persons was irrelevant because they are deceased and were not victims of the appellant. The portion of testimony appellant refers to went as follows:\nProsecutor: Let me ask you particularly about the Joe Stocks family.\nWitness: Yes.\nProsecutor: Your son, Joe, was a college graduate.\nWitness: Yes.\nProsecutor: As was Barbara.\nWitness: No, Barbara \u2014 Bonnie Gail is. Our daughter.\nProsecutor: Your daughter is a college graduate?\nWitness: Yes.\nProsecutor: How were Joe and Barbara employed?\nWitness: Joe had a \u2014 his own trucking business, and Barbara held down two jobs. She worked at the school, and she also worked, at the Lonoke County Extension Office. And to do this, Joe worked awful hard, and Barbara did, too, to provide their children with the best that they could furnish them.\nProsecutor: If you will, tell me a little bit about Heather.\nWitness: Heather was an exceptionally bright girl. She \u2014\nMr. Alexander: Your Honor, could we approach?\nThe Court: Yes.\nThis testimony was background information related to one of the victim\u2019s family life. The witness made no mention of the Stockses\u2019 family deaths. She made no effort to disparage appellant but merely recounted family history to help make meaningful a victim\u2019s experience. That particular victim had been raped and abused by appellant repeatedly over at least nine years. He also testified on his own behalf and was subject to cross-examination. Based upon this family background, Dorothy Stocks and witness Annie Mae Harris testified about how the victim suffered for reasons they could not discern, of how he changed and how the family suffered as the victim tried to carry the burden of the severe abuse he dared not and could not bring himself to mention. Their testimony was relevant to appellant\u2019s sentencing to the extent it related directly to familial consequences flowing from Walls\u2019s sexual violation of their grandson. Given this context, I cannot say the trial judge abused his discretion in allowing the background testimony.\nIt is apparent from the record in this case that appellant\u2019s sentencing hearing was handled less than optimally by both bench and bar. Appellant\u2019s counsel did not object, as the majority notes, to testimony from Reverend Marble regarding the Stockses\u2019 deaths. Additionally, appellant\u2019s own counsel\u2019s cross-examination of victim Heath Stocks deals directly with the issue of responsibility for the Stockses\u2019 murders. Numerous other times potentially inadmissible evidence was entered without objection. In order to gain reversal of the trial court, appellant carries the burden of demonstrating that the trial court committed prejudicial error. I do not believe he has done so. I therefore, respectfully dissent.\nGlaze and Corbin, JJ., join.\nTr. 235, Tr. 239, Tr. 242-245, Tr. 255, Tr. 260, Tr. 265-266, Tr. 267-269, Tr. 271, Tr. 275-276, Tr. 283, Tr. 299-300, Tr. 304-305, Tr. 314-315, Tr. 321-322, Tr. 323-327, Tr. 341, Tr. 358-359, Tr. 397, Tr. 408-409, Tr. 423-424, and Tr. 442-443.", "type": "dissent", "author": "Lavenski R.Smith, Justice," } ], "attorneys": [ "Hubert W. Alexander and Jon Johnson, for appellant.", "Winston Bryant, Att\u2019y Gen., by: Sandy Moll, Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Charles A. \u201cJack\u201d WALLS v. STATE of Arkansas\nCR 98-521\n986 SW.2d 397\nSupreme Court of Arkansas\nOpinion delivered March 4, 1999\n[Petition for rehearing denied April 15, 1999.]\nHubert W. Alexander and Jon Johnson, for appellant.\nWinston Bryant, Att\u2019y Gen., by: Sandy Moll, Asst. Att\u2019y Gen., for appellee.\nGlaze, Corbin, and Smith, JJ., would grant." }, "file_name": "0490-01", "first_page_order": 516, "last_page_order": 531 }