Brown v. State

2015 Ark. 16, 454 S.W.3d 226, 2015 Ark. LEXIS 29
CourtSupreme Court of Arkansas
DecidedJanuary 22, 2015
DocketCR-14-472
StatusPublished
Cited by12 cases

This text of 2015 Ark. 16 (Brown v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. State, 2015 Ark. 16, 454 S.W.3d 226, 2015 Ark. LEXIS 29 (Ark. 2015).

Opinion

ROBIN F. WYNNE, Associate Justice

li Marlin Brown appeals his convictions for three counts of rape, three counts of aggravated robbery, and one count of Class B felony kidnapping. On appeal, he argues that “the abolition by statute of the statute of limitations defense for defendants whose DNA profile is included in a DNA database violates the Equal Protection Clause of the Fourteenth Amendment” to the United States Constitution, as well as ex post facto principles as applied to him. We have jurisdiction pursuant to Arkansas Supreme Court Rule 1-2(b)(3) (2014), as the appeal involves an issue of federal constitutional interpretation. We affirm.

Appellant’s convictions arose from incidents that took place on January 2, January 25, and January 30, 2001. The victims in all three were approached inside or immediately outside their homes by a man with a gun who raped them in their homes and took cash or debit and credit cards. The victims were unable to give detailed descriptions of the attacker because he threatened to kill them if they lpoked at him, he had his face partially covered' in |2at least the first two attacks, and he covered the victims’ faces with a comforter or blanket during the rapes. On August 31, 2011, the State filed a felony information charging appellant with five counts of rape, three counts of aggravated robbery, and two counts of kidnapping. The State also charged appellant under Arkansas Code Annotated section 16-90-120 with having employed a firearm while committing a felony, under Arkansas Code Annotated section 5-4-501(b) with having been previously been convicted of four or more felonies, and under Arkansas Code Annotated section 5-4-501 (c) with having been previously convicted of one or more enumerated serious felonies involving violence.

On August 17, 2012, appellant filed a motion to declare Arkansas Code Annotated section 5-l-109(b)(l)(B) and (j) unconstitutional. Those subsections provide:

(b) Except as otherwise provided in this section, a prosecution for another offense shall be commenced within the following periods of limitation after the offense’s commission:
(1)(A) Class Y felony or Class A felony, six (6) years.
(B) However, for rape, § 5-14-103, the period of limitation is eliminated if biological evidence of the alleged perpetrator is identified that is capable of producing a deoxyribonucleic acid (DNA) profile;
[[Image here]]
(j) When deoxyribonucleic acid (DNA) testing implicates a person previously identified through a search of the State DNA Data Base or National DNA Index System, a statute of limitation shall not preclude prosecution of the offense.

Ark.Code Ann. § 5-1-109 (Repl. 2013). In his motion, appellant noted the dates of the alleged offenses and that biological samples had been collected from each of the alleged offenses by the Little Rock Police Department for testing at the Arkansas State Crime Laboratory. Appellant argued, among other things, that section 5 — 1—109(b)(Z )(B) violated | shis right to equal protection. Appellant also filed a motion to dismiss for violation of the statute of limitations, due process, and equal protection, raising arguments similar to those raised in his motion to declare the statute unconstitutional. The State responded to both motions. The trial court held an omnibus hearing on August 23, 2012, at which time it heard testimony pertinent to appellant’s motion to suppress the evidence obtained from the collection of his DNA on November 1, 2011, and testimony of an Arkansas State Crime Lab employee, Mary Robnett, pertinent to appellant’s motion to dismiss. Robnett testified that she was a forensic biologist at the state crime lab in 2001, and in 2005 she took over as the Combined DNA Index System Administrator, overseeing the entire DNA database. She testified that the DNA profile from evidence obtained during the investigation of this case was entered into the database on February 21, 2001, and that it was automatically tested weekly against the national and state databases at least since 2005. The national database matched that profile to appellant’s DNA profile in August 2010. The court denied both the motion to dismiss and the motion to declare section 5-1-109 unconstitutional.

The State filed an amended felony information on September 25, 2013, but the substantive charges remained the same. Appellant’s jury trial took place on October 8-10, 2013. On the morning of the first day, the State nolle prossed counts two (rape), three (rape), and four (kidnapping). Appellant’s counsel asked the circuit court to reconsider his previously filed motions and declare section 5-1-109(b)(1)(B) and (j) unconstitutional in light of the amendments to the felony information. The court again denied the motion. The trial proceeded, and the jury found appellant guilty of all charges and sentenced him as a habitual |4offender under Arkansas Code Annotated section 5-4-501(c) to eighty years on each of the three counts of rape and the three counts of aggravated robbery, forty years for one count of Class B felony kidnapping, 1 and fifteen years under Arkansas Code Annotated section 16-90-120 for employing a firearm in the commission of the offense of rape. All sentences were to be served consecutively with the exception of the sentence for kidnapping, for a total term of imprisonment of 495 years. Appellant timely appealed.

On appeal, appellant makes two arguments. First, appellant argues that his prosecution on the aggravated-robbery and kidnapping charges violated ex post facto principles, citing Stogner v. California, 539 U.S. 607, 123 S.Ct. 2446, 156 L.Ed.2d 544 (2003). Specifically, he argues that the six-year statute of limitations for Class Y felonies expired in January 2007, and the 2005 amendment to the statute set forth in section 5-1-109(j) 2 for a person previously identified through a DNA search did not extend the statute of limitations because he was not “a person previously identified through a search of the State DNA Data Base or National DNA Index |sSystem” until September 2010. Appellant acknowledges, however, that he failed to raise this argument to the trial court. He further acknowledges that a contemporaneous objection is required in order to preserve an issue for appellate review, e.g., Ussery v. State, 308 Ark. 67, 822 S.W.2d 848 (1992), and that no recognized exception to that rule is applicable in the present case. Indeed, this court has written:

[A] contemporaneous objection is generally required to preserve an issue for appeal, even a constitutional issue. Bader v. State, 344 Ark. 241, 40 S.W.3d 738 (2001); Christopher v. State, 340 Ark. 404, 10 S.W.3d 852 (2000). However, we have recognized four exceptions to the contemporaneous-objection rule, commonly referred to as the Wicks exceptions. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
2015 Ark. 16, 454 S.W.3d 226, 2015 Ark. LEXIS 29, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-state-ark-2015.