McElroy v. State

385 S.W.3d 406, 2011 Ark. App. 533, 2011 Ark. App. LEXIS 582
CourtCourt of Appeals of Arkansas
DecidedSeptember 14, 2011
DocketNo. CA CR 11-30
StatusPublished

This text of 385 S.W.3d 406 (McElroy v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McElroy v. State, 385 S.W.3d 406, 2011 Ark. App. 533, 2011 Ark. App. LEXIS 582 (Ark. Ct. App. 2011).

Opinion

RAYMOND R. ABRAMSON, Judge.

liA Pulaski County jury found appellant Ryan McElroy guilty of sexual assault in the second degree. Appellant was sentenced to twelve years in the Arkansas Department of Correction and fined $15,000. For reversal, he argues that the circuit court erred in (1) allowing certain questions by the prosecutor during voir dire and (2) admitting, during the sentencing phase, the testimony of a woman who stated that appellant had raped her nine years before. We affirm.

Appellant was charged with rape in a felony information filed March 2, 2009. The victim was a Little Rock police officer who had known appellant for years and had previously dated appellant’s brother. The alleged rape took place in the victim’s home after the two had been at the same night club on New Year’s Eve.

|;A trial was held on September 14 and 15, 2010. The case presented a credibility determination for the jury. The victim testified that appellant held her down, pulled down her leggings, and forcibly engaged in sexual intercourse. Appellant testified that sexual contact occurred, but that it was consensual. The jury acquitted appellant of rape, but found him guilty of the lesser-included offense of sexual assault in the second degree.

I. Voir Dire

Appellant contends that the circuit court committed reversible error when it overruled his objection to what he characterizes as the State’s attempt to “fact qualify” the jury on the elements of rape. Specifically, he objected to questions regarding whether the jurors believed that someone could be raped by a person she knew, whether “no means no,” and whether any certain amount of force was necessary to constitute rape. Finally, the prosecution asked whether people “trained in the military and different things like that” could be the victims of violent crimes. The court overruled all objections. At the conclusion of voir dire, both the prosecution and the defense agreed that the jury was satisfactory.

Arkansas Rule of Criminal Procedure 32.2 (2010) provides

(a) Voir dire examination shall be conducted for the purpose of discovering bases for challenge for cause and for the purpose of gaining knowledge to enable the parties to intelligently exercise peremptory challenges.
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(b) The judge shall then put to the prospective jurors any question which he thinks necessary touching their qualifications to serve as jurors in the cause on trial. The judge shall also permit such additional questions by the defendant or his attorney and the prosecuting attorney as the judge deems reasonable and proper.

IsOur supreme court has explained that the course and conduct of voir dire examination of prospective jurors are within the circuit judge’s sound discretion, and the latitude of that discretion is wide. Dillard v. State, 363 Ark. 491, 493, 215 S.W.3d 662, 664 (2005). Decisions regarding voir dire will not be reversed absent an abuse of discretion. Id.

The State contends that the trial court’s rulings should be affirmed because appellant failed to ask for specific relief when he made his objections to the voir dire questions and he told the trial court that the jury was satisfactory at the close of voir dire. In Davis v. State, 365 Ark. 634, 232 S.W.3d 476 (2006), our supreme court wrote

Appellant did not seek particular relief, such as an admonition to the jury, when the prosecutor educated the jury on different forms of intent. In addition, both parties agreed that the jury panel was satisfactory at the conclusion of voir dire. The trial court was lenient towards both parties by allowing the prosecution to touch on intent, and allowing the defense to educate the jury on justification. Based upon these circumstances, we therefore hold that the trial court did not abuse its discretion, and we affirm on this point.

Id. at 641, 232 S.W.3d at 483. These same factors are present in this case — appellant did not request an admonition to the jury and did agree that the jury panel was satisfactory. Also, the defense was afforded fairly wide latitude during voir dire in this case:

Now, you were asked many questions about who could be victimized and do people act and respond differently. Don’t you agree that the way people respond and how they act depends upon their life experiences, their personality?
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[Wjouldn’t you expect certain people with certain kinds of training to react a certain way whereas a person didn’t have that kind of training may react differently? Is that a fair statement? Anybody disagree with that?

|4The cases appellant relies on are not persuasive. In Haynes v. State, 270 Ark. 685, 606 S.W.2d 563 (1980), the supreme court reversed where the trial court had excused for cause prospective jurors who expressed reservations about imposing the maximum sentence of forty years. The supreme court noted that “[t]he jury in this case was composed of 12 people who may have felt obligated, in advance of hearing the evidence, to consider imposing the maximum punishment if the accused were found guilty.” Id. at 690-91, 606 S.W.2d at 565. Here, there are no such concerns.

In Christopher v. State,1 340 Ark. 404, 10 S.W.3d 852 (2000), Kelley Christopher was charged with capital murder. The trial court sustained the State’s objection to Christopher’s lawyer’s questions to prospective jurors regarding whether they would consider lesser-included offenses. The State objected on the grounds that it was unknown whether the jury would receive instructions on any lesser offense, and the trial court agreed and instructed Christopher’s counsel to simply ask the prospective jurors if they would be able to follow any instruction submitted to them. The supreme court found that the trial court had not abused its discretion, and nothing about Christopher compels us to find an abuse of discretion in the present case. Both Haynes and Christopher stand for the proposition that there are limits to the questions that can be asked during voir dire, but we do not find any specific applicability to appellant’s case.

Arkansas Code Annotated section 16-31 — 102(b)(3) prohibits a person who has “formed or expressed an opinion concerning the matter in controversy which may influence his | .¡judgment” from serving on a jury, except by consent of all parties. Appellant contends that the jurors in this case had already agreed in advance that a combat or military-trained person could be raped with minimal force, that a rape or sexual assault may occur without the use of violence or force, that “no means no” in any given situation, and that the victim should be given “a fair shake” in determining whether her failure to immediately report the incident to law enforcement was reasonable. We disagree that a violation of the statute occurred in this case.

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Related

MacKool v. State
231 S.W.3d 676 (Supreme Court of Arkansas, 2006)
Dillard v. State
215 S.W.3d 662 (Supreme Court of Arkansas, 2005)
Davis v. State
232 S.W.3d 476 (Supreme Court of Arkansas, 2006)
Haynes v. State
606 S.W.2d 563 (Supreme Court of Arkansas, 1980)
Crawford v. State
208 S.W.3d 146 (Supreme Court of Arkansas, 2005)
Rollins v. State
208 S.W.3d 215 (Supreme Court of Arkansas, 2005)
Teater v. State
290 S.W.3d 623 (Court of Appeals of Arkansas, 2009)
Eliott v. State
27 S.W.3d 432 (Supreme Court of Arkansas, 2000)
Buckley v. State
76 S.W.3d 825 (Supreme Court of Arkansas, 2002)
Brown v. State
2010 Ark. 420 (Supreme Court of Arkansas, 2010)
Christopher v. State
10 S.W.3d 852 (Supreme Court of Arkansas, 2000)

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Bluebook (online)
385 S.W.3d 406, 2011 Ark. App. 533, 2011 Ark. App. LEXIS 582, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcelroy-v-state-arkctapp-2011.