Marlon Tucker v. State of Arkansas

2023 Ark. 69

• Court: Supreme Court of Arkansas
• Decided: April 27, 2023
• Status: Published

Opinion

Cite as 2023 Ark. 69 SUPREME COURT OF ARKANSAS No. CR-22-409

Opinion Delivered: April 27, 2023

MARLON TUCKER APPELLANT APPEAL FROM THE MISSISSIPPI V. COUNTY CIRCUIT COURT [NO. 47BCR-20-205] STATE OF ARKANSAS APPELLEE HONORABLE CHARLES M. MOONEY, JUDGE

AFFIRMED.

COURTNEY RAE HUDSON, Associate Justice

Appellant Marlon Tucker appeals his convictions in the Craighead County Circuit

Court for three counts of first-degree murder, one count of first-degree battery, and two

counts of aggravated assault. The jury also found Tucker guilty of committing a murder in

the presence of a child and using a firearm during the commission of the crime. He was

sentenced as a habitual offender to three consecutive life sentences, plus sixty-five years’

imprisonment. For reversal, Tucker argues that (1) the circuit court impermissibly stacked

enhancements in its sentencing; (2) the circuit court erroneously excluded certain testimony

as hearsay; (3) the circuit court erred by denying his motion for directed verdict on one of

the aggravated-assault counts because the victim was not named in the criminal information;

and (4) the circuit court erroneously denied his proffered manslaughter jury instruction. We

affirm. On June 27, 2020, Tucker fatally shot Oscar Lane, Virginia Bailey, and Joyce Adams

during a party at Lane’s residence in Blytheville, Arkansas. Tucker also shot Darnell Wilson,

who survived, and Tucker shot at, but missed, Shalamar Ford and Terry Rogers. Based on

these events, the State filed a criminal information on July 30, 2020, charging Tucker with

three counts of first-degree murder, one count of first-degree battery, and two counts of

aggravated assault. The State filed an amended information on September 3, 2020, charging

Tucker as a habitual offender and adding sentence enhancements for using a deadly weapon

during the commission of a felony and for committing a homicide in the presence of a

child.1

The jury trial was held on March 14–17, 2022, and the State presented the following

testimony and evidence in support of the charges. On June 27, 2020, Lane, whom Tucker

referred to as his uncle, had a party at his home. Tucker, who lived in Missouri, had been

staying with Lane and was present at the party. Other guests included Shalamar Ford, Joyce

Adams, Virginia Bailey, and Darnell Wilson; Terry Rogers and his wife, Robin Rogers;

Lane’s one-year-old daughter; and Bailey and Wilson’s infant. At some point during the

evening, Bailey and Wilson were involved in an argument outside the residence. Other

guests went outside to check on them, while Lane, Tucker, Adams, and the children

remained inside. Robin Rogers walked to the front door to go back inside and grab her

cigarettes when Tucker came to the door and pushed her backward, stating, “[T]hese bitches

are out to get me.” Lane told Tucker to “stop tripping,” and Tucker shot him. Despite pleas

1 Tucker was also charged with being a felon in possession of a firearm; however, this charge was severed by the circuit court.

2 by Adams, who was holding Bailey and Wilson’s infant, not to shoot her, Tucker shot her

as well. Tucker then retrieved a second gun. Wilson and Ford ran to the front door. Tucker

shot toward Ford’s face but missed her. He then shot Wilson twice, hitting him once in the

stomach. Bailey carefully approached the house with her hands up, yelling, “My baby is in

there,” and Tucker shot her. Next, Tucker went outside and shot at Terry Rogers, who

had taken cover at the side of the house. Tucker then took Ford’s car and fled to Missouri.

Three firearms were found in the car when Tucker was apprehended. The State’s firearms

expert testified that the bullets from two of the victims’ bodies matched two of the firearms

in Tucker’s possession. Adams’s blood was found on Tucker’s pants, and his shirt and pants

tested positive for gunshot residue. The State also played surveillance video from a residence

across the street from Lane’s home.

Tucker testified in his own defense. He stated that he believed people were following

him, that he had witnessed an altercation at the party and saw someone with a gun, and that

he believed people at the house wanted to kill him. He further explained that he had not

slept in ten or eleven days and was impaired that night. Tucker admitted that he had shot

people but claimed that he had feared for his life, that he was trying to get out of the house,

and that he did not intend to kill anyone. He testified that the surveillance video had been

edited by police and did not accurately reflect what occurred that night.

At the conclusion of the trial, the jury found Tucker guilty of all charges, including

the enhancements. He was sentenced as a habitual offender to life imprisonment for each

count of first-degree murder, twenty years’ imprisonment for the first-degree battery

conviction, ten years’ imprisonment for each count of aggravated assault, fifteen years’

3 imprisonment for use of a firearm in the commission of one count of murder, and ten years’

imprisonment for committing one murder in the presence of a child. 2 The jury

recommended that all sentences be served consecutively, and the circuit court followed that

recommendation. The sentencing order was entered on March 17, 2022, and Tucker filed

a timely notice of appeal.

Although it is presented as his third point on appeal, we address Tucker’s challenge

to the sufficiency of the evidence supporting one of his aggravated-assault convictions first

due to double-jeopardy considerations. Armstrong v. State, 2020 Ark. 309, 607 S.W.3d 491.

Tucker contends that the circuit court erred by denying his motion for directed verdict on

count six, the aggravated assault against Terry Rogers, because the State failed to plead that

Rogers was the victim of the offense. He argues that the failure to name Rogers as the

victim in the criminal information did not sufficiently apprise him of the crime for which

he was charged and violated his constitutional rights as secured by the Fifth, Sixth, and

Fourteenth Amendments to the United States Constitution, as well as article 2, sections 8

and 10 of the Arkansas Constitution.

Although Tucker frames his argument as a challenge to the sufficiency of the

evidence, he does not contend that the State failed to prove any of the elements of the

offense. Rather, he is challenging the sufficiency of the criminal information with regard to

this count. However, he failed to raise this issue in a timely manner. We have held that a

nonjurisdictional challenge to the sufficiency of the information must be raised prior to trial

2 These two sentence enhancements were applied to only one of the first-degree- murder charges.

4 to be preserved for appellate review, and a directed-verdict motion is not a substitute for a

timely motion to dismiss an allegedly insufficient information. E.g., Ray v. State, 344 Ark.

136, 40 S.W.3d 243 (2001). Tucker did not argue that the charging instrument was defective

until his trial, when he moved for directed verdict at the close of the State’s case. As the

circuit court noted in denying his motion, Tucker could have filed a bill of particulars prior

to trial if he desired additional information not provided in the amended criminal

information, such as the name of the victim. See Lockhart v. State, 2017 Ark. 13, 508 S.W.3d

869 (holding that the criminal information sufficiently apprised the defendant of the specific

elements of the crime with which he was being charged and the date that he was alleged to

have committed it and that the defendant could have filed a bill of particulars if he wanted

additional information). He failed to do so. Accordingly, because Tucker did not preserve

his argument for appeal, we are unable to address the merits.

Tucker next contends that the circuit court impermissibly stacked sentencing

enhancements. During the penalty phase of the trial, Tucker requested that the circuit court

apply the sentence enhancements for committing a homicide in the presence of a child and

for using a firearm during the commission of a felony concurrently instead of “stacking”

them, or running them consecutively. He claimed that the statutes authorizing these

enhancements are ambiguous in this regard and should therefore be construed in his favor.

The circuit court disagreed with Tucker’s argument and ruled that the enhancements were

to run consecutively.

Issues of statutory construction are reviewed de novo, as it is for this court to decide

the meaning of a statute. State v. Ledwell, 2017 Ark. 252, 536 S.W.3d 1. Criminal statutes

5 are construed strictly, and any doubts are resolved in favor of the defendant. Id. The primary

rule of statutory interpretation is to give effect to the intent of the legislature. Metzner v.

State, 2015 Ark. 222, 462 S.W.3d 650. We construe the statute just as it reads; if the language

of the statute is plain and unambiguous and conveys a clear and definite meaning, there is

no occasion to resort to rules of statutory interpretation. Id.

Pursuant to Arkansas Code Annotated section 16-90-120(a) (Supp. 2019), any person

convicted of a felony who employs a firearm as a means of committing the felony may be

subjected to an additional period of confinement for a period not to exceed fifteen years.

Any additional prison sentence imposed under this section “shall run consecutively and not

concurrently with any period of confinement imposed for conviction of the felony itself.”

Ark. Code Ann. § 16-90-120(b). In addition, Arkansas Code Annotated section 5-4-

702(a)(2) (Supp. 2019) provides that a person who commits first-degree murder in the

presence of a child may be subject to an enhanced sentence of an additional term of

imprisonment of not less than one year and not greater than ten years. The enhanced portion

of this sentence “is consecutive to any other sentence imposed.” Ark. Code Ann. § 5-4-

702(d).

Tucker contends that a plain reading of these statutes reveals an ambiguity because it

is unclear whether the sentencing enhancements must run consecutively to all other

sentences imposed or merely consecutively to the underlying felony for which the sentence

was enhanced. He further argues that the sentencing order in this case is ambiguous as to

the sequence of these enhancements. He claims that these ambiguities must be resolved in

6 his favor and that these sentence enhancements should run consecutively to one of the life

sentences but concurrently with each other.

We disagree with Tucker’s claim that these statutory provisions are ambiguous.

Section 16-90-120(b) clearly requires that any sentence enhancement for use of a firearm

shall run consecutively to the sentence imposed for the felony itself, and section 5-4-702(d)

requires that the enhancement run consecutively to any other sentence imposed. Thus, the

circuit court correctly imposed an additional fifteen-year sentence to one of Tucker’s life

sentences for his use of a firearm and then imposed the ten-year enhancement for

committing the murder in the presence of a child––to be served consecutively to that

resulting sentence––and the sentencing order accurately reflects this. Accordingly, Tucker’s

contention that his sentence is illegal based on the stacking of these enhancements is without

merit.

Tucker also argues that a general sentencing enhancement such as the habitual-

offender statute may not be stacked on top of the specific sentence enhancements.3 He relies

on Lawson v. State, 295 Ark. 37, 746 S.W.2d 544 (1988), in which this court held that the

general habitual-offender statute could not be stacked with a specific DWI enhancement

statute applicable to a fourth DWI offense. We concluded that the legislature did not intend

the specific DWI enhancement statute to be coupled with the general criminal-

enhancement statute for the resulting purpose of creating a greater sentence than if either

statute had been applied singly. Id. Tucker contends that, because all of his sentences were

3 Tucker did not make this specific argument below; however, we have held that illegal-sentence claims can be raised for the first time on appeal. E.g., Ellis v. State, 2019 Ark. 286, 585 S.W.3d 661.

7 ordered to run consecutively, there is no way to distinguish the specific enhancements

applicable to the one count of first-degree murder from the general habitual-offender

enhancement that applied to all of the charges. He claims that “[t]his is implicitly enlarging

the punishment for one count of battery in the first degree and two counts of aggravated

assault to an extent greater than that contemplated by the legislature.”

As the State argues, Lawson is not applicable to this case, as it did not involve either

section 5-4-702 or section 16-90-120, neither of which is a subsequent-offense

enhancement. Tucker cites no authority that prevents these enhancements from being

stacked with the general habitual-offender statute. In addition, his contention that his

punishment for the first-degree-battery and aggravated-assault convictions was implicitly

enlarged by the firearm and presence-of-a-child enhancements is simply incorrect. These

enhancements were applied only to the one count of first-degree murder––not to any of

the other charged offenses. Thus, we affirm on this point.

In his next point on appeal, Tucker argues that the circuit court erroneously excluded

hearsay testimony by Shalamar Ford, who was Lane’s girlfriend. During the defense’s cross-

examination of Ford, Ford indicated that Tucker was “acting weird” at the time of the

murders. The defense then asked if Lane had told her that he thought Tucker “got hold of

some bad powder.” The State objected on the basis of hearsay, and the defense argued that

the statement was admissible as a present-sense impression. The defense also contended that

the testimony was more probative than prejudicial. The circuit court agreed with the State

that the testimony did not fall within the present-sense-impression exception to hearsay and

sustained the objection. The court also noted that several people had indicated that Tucker

8 was not in his right mind and that it was prejudicial to let the statement in because Lane did

not know what type of substance Tucker had taken, if anything.

Pursuant to Ark. R. Evid. 801(c) (2022), hearsay is a statement, other than one made

by the declarant while testifying at trial, offered in evidence to prove the truth of the matter

asserted. Hearsay is inadmissible except as provided by law or the rules of evidence. Ark.

R. Evid. 802 (2022). The present-sense-impression exception allows a statement that

describes or explains an event or condition made while the declarant is perceiving the event

or condition, or immediately thereafter. Ark. R. Evid. 803(1) (2022). A circuit court has

broad discretion in deciding evidentiary issues, and we will not reverse that decision absent

an abuse of discretion. Humphry v. State, 2023 Ark. 16, 659 S.W.3d 691. In addition, we

will not reverse unless the appellant demonstrates that he or she was prejudiced by the ruling.

Id.

Tucker contends that the circuit court committed reversible error by excluding

Ford’s testimony as hearsay because the statement fits squarely under both the res gestae

exception and the present-sense-impression exception. Tucker raises his argument regarding

the res gestae exception for the first time on appeal; therefore, it is not preserved for our

review. E.g., King v. State, 2019 Ark. 114, 571 S.W.3d 476. Tucker claims that the issue

was sufficiently raised when he asserted at trial that the statement was more probative than

prejudicial, but that argument related to whether evidence that is otherwise admissible

should be excluded pursuant to Ark. R. Evid. 403, not whether the evidence was admissible

as res gestae. We have held that under the doctrine of res gestae, evidence showing all of

the circumstances surrounding the charged act may be introduced to provide context for

9 the crime and to place the jury in possession of the entire transaction. Adams v. State, 2021

Ark. 34, 617 S.W.3d 249. Because Tucker did not make this specific argument at trial,

however, we are unable to address it.

We also agree with the State that the circuit court did not abuse its discretion by

concluding that the hearsay statement at issue did not fall within the present-sense-

impression exception. Lane’s comment to Ford that Tucker may have taken some bad

powder was an opinion about why Tucker had been behaving strangely that evening, not a

statement based on his perception of Tucker made contemporaneously with the event.

Tucker also cannot demonstrate prejudice from the exclusion of this evidence. Not only

was there an abundance of other evidence admitted regarding Tucker’s abnormal mental

state, but the jury was also instructed that voluntary intoxication is not a defense to a crime.

Tucker admitted that he was “under the influence” that night. We therefore affirm on this

point as well.

In Tucker’s fourth and final point on appeal, he contends that the circuit court erred

by refusing to give his proffered jury instruction on reckless manslaughter. The State agreed

to instruct the jury on the lesser-included offense of second-degree murder but argued that

there was no rational basis for giving the manslaughter instruction. The circuit court agreed.

Tucker then proffered his instructions on each of the three murder counts. The proffered

manslaughter instructions provided that Tucker “recklessly caused the death” of each

murder victim. See AMI Crim. 2d 1004; see also Ark. Code Ann. § 5-10-104(a)(3) (Repl.

2013) (containing the elements of the manslaughter offense). The instructions further

defined “recklessly” and stated that “[a] person acts recklessly with respect to the results of

10 his conduct when he consciously disregards a substantial and unjustifiable risk that the results

will occur. The risk must be of a nature and degree that disregard thereof constitutes a gross

deviation from the standard of care that a reasonable person would observe in the same

situation.” See AMI Crim. 2d 1004; see also Ark. Code Ann. § 5-2-202(3)(A) (Repl. 2013)

(containing the definition of “recklessly”).

A circuit court’s ruling on whether to give a jury instruction will not be reversed

absent an abuse of discretion. Armstrong v. State, 2020 Ark. 309, 607 S.W.3d 491; Dixon v.

State, 2019 Ark. 245, 581 S.W.3d 505. The refusal to give an instruction on a lesser-

included offense is reversible error if the instruction is supported by even the slightest

evidence. Armstrong, supra. However, we will affirm the circuit court’s decision to not give

an instruction on a lesser-included offense if there is no rational basis for doing so. Id.

Tucker claims that he was entitled to the manslaughter instruction because the jury

could have reasonably concluded from the evidence presented that he believed that deadly

force was necessary to defend himself but that this belief was formed recklessly. He refers to

his testimony that he had been awake for eleven days, that he believed someone from

Missouri was following him and trying to kill him, that he witnessed an altercation at the

party, that he saw someone with a gun, and that he was in fear for his life. Tucker relies on

Harshaw v. State, 344 Ark. 129, 39 S.W.3d 753 (2001), wherein we reversed the circuit

court’s refusal to instruct the jury on manslaughter as a lesser-included offense to second-

degree murder. In Harshaw, witnesses testified that the victim made threatening remarks to

the defendant and reached for something in his car immediately prior to the homicide. Id.

We held that there was at least some evidence presented to support a finding that the

11 defendant acted on the basis of an unreasonable or recklessly formed belief that he needed

to use deadly force to protect himself. Id.

The facts in the present case are clearly distinguishable from those in Harshaw. While

Tucker testified that he began shooting because he was paranoid and afraid for his life, no

evidence was presented that the victims, or anyone else at the party, had threatened him or

had any sort of conflict with him. Tucker stated that he was not aware that he had shot his

uncle, Lane, until afterward and that he did not know any of the other victims. According

to Tucker’s testimony, as well as that of other witnesses, the altercation at the party was a

domestic dispute that did not involve Tucker. Although Tucker stated that he saw someone

with a gun, he did not indicate that it was ever pointed at him. Instead, the witnesses testified

that Tucker shot Lane after Lane attempted to calm him down, that he shot Adams while

she was holding an infant and begging for her life, that he picked up a second gun and fired

at both Ford and Wilson, and that he then shot Bailey when she approached the house with

her hands raised, worried about her child who was inside. The surveillance-video footage

played at trial shows that Bailey had her hands in the air when Tucker fatally shot her. This

evidence demonstrated that Tucker deliberately and repeatedly fired at multiple victims,

none of whom posed a threat to Tucker, resulting in the deaths of two parents of young

children who were present during these horrific events. Under these circumstances, the

circuit court did not abuse its discretion in finding no rational basis for giving the reckless-

manslaughter instruction. See, e.g., Morris v. State, 351 Ark. 426, 94 S.W.3d 913 (2003)

(affirming circuit court’s conclusion that no rational basis existed for giving reckless-

manslaughter instruction where there had previously been an argument in the nightclub

12 parking lot, a car window was rolled down, and the defendant thought he saw a gun); Ellis

v. State, 345 Ark. 415, 47 S.W.3d 259 (2001) (affirming denial of reckless-manslaughter

instruction where the defendant shot the victim at close range after the victim stared at the

defendant during a confrontation).

Rule 4-3(a) Review

Because Tucker received a life sentence, the record has been examined for all

objections, motions, and requests made by either party that were decided adversely to

Tucker in compliance with Arkansas Supreme Court Rule 4-3(a), and no prejudicial error

has been found.

Thompson & Holmes, by: Jake Holmes, for appellant.

Tim Griffin, Att’y Gen., by: Brooke Jackson Gasaway, Ass’t Att’y Gen., for appellee.