Terry v. State

263 S.W.3d 528, 371 Ark. 50, 2007 Ark. LEXIS 503
CourtSupreme Court of Arkansas
DecidedSeptember 27, 2007
DocketCR 06-688
StatusPublished
Cited by10 cases

This text of 263 S.W.3d 528 (Terry 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
Terry v. State, 263 S.W.3d 528, 371 Ark. 50, 2007 Ark. LEXIS 503 (Ark. 2007).

Opinion

Tom Glaze, Justice.

Appellant Pamela Kaye Terry was tice. capital murder in the death of her estranged husband James “Michael” Terry. She was also convicted of robbery and theft of property. Pamela was sentenced to life without parole for the capital-murder conviction, thirty years’ imprisonment for the robbery conviction, and twenty years’ imprisonment for the theft-of-property conviction. From the circuit court’s judgment and commitment order, this appeal arises, wherein Pamela argues four points for reversal. We affirm her convictions.

On July 16, 2004, Pamela was arrested at a Little Rock bus station for public intoxication. After she was transported to the city jail, she subsequently told the arresting police officer that she had killed her husband in their home outside of Clinton. After being read her rights and waiving those rights, Pamela confessed that she had shot Michael in their home about two weeks earlier, because he was abusing her and would not allow her to leave. She stated that he was asleep in his chair when she shot him. In her confession, Pamela claimed lack of memory and mental illness, but she was able to explain that, after shooting him, she placed a blanket over him, took $300 and his Visa card from his wallet, fled in his car, and, later, drove to Little Rock with an ex-boyfriend. In addition, she admitted that she had used his Visa card at local ATMs on three occasions.

The Little Rock Police Department contacted the Van Burén County Sheriffs Department, and, upon arriving at the home in Dennard, police found Michael’s body in a chair covered by a red blanket. Evidence revealed that Michael had sustained a gunshot wound to the head and had been dead for some time.

The State initially charged Pamela with capital murder under the felony-murder provision; she was also charged with three counts of theft of property. During discovery, the Van Burén County Circuit Court ordered a mental health evaluation for Pamela pursuant to Ark. Code Ann. § 5-2-305 (Repl. 1997). William Cochran, Ph.D., performed a forensic evaluation on Pamela, and he gave her an Axis-I diagnosis of bipolar disorder and alcohol abuse. Dr. Cochran recommended that Pamela be placed in the Forensic Unit of the Arkansas State Hospital “to resolve complex diagnostic issues.” The circuit court then entered an order sending her to the State Hospital for additional testing. At the State Hospital, Michael Simon, Ph.D., issued an evaluation of Pamela, diagnosing her only with alcohol dependence. It was Dr. Simon’s opinion that Pamela did not have a mental disease or defect.

Five days prior to trial, the State filed an amended information, adding an additional element for capital murder — the premeditated and deliberated provision — and amending one of the three theft-of-property charges to aggravated robbery. The State also filed second and third felony informations, wherein the State dropped one theft-of-property charge. In short, the State proceeded to trial, charging Pamela with (1) capital murder under the felony-murder and premeditated and deliberated provisions, (2) aggravated robbery, and (3) one count of theft of property. On the day of trial, in a pre-trial hearing, Pamela filed an oral motion to prohibit the State from filing its amended informations changing the theft-of-property charge to aggravated robbery; however, the circuit court denied her oral motion.

Pamela stood trial in Van Burén County on November 15, 16, 17, and 18, 2005. At trial, she raised the affirmative defense of mental disease or defect, contending that she lacked the capacity to appreciate the criminality of her conduct. In the State’s case in chief, Pamela disputed the circuit court’s decision to allow certain photos into evidence, arguing that the photos were cumulative and were only being used by the State to incite the jury. Moreover, at the close of the State’s case, Pamela filed motions for directed verdict on the capital murder and aggravated robbery charges, which were denied by the circuit court. She then rested without presenting any additional witnesses. Before the case was submitted to the jury, Pamela argued that the circuit court should not allow the “premeditated and deliberated purpose” instruction to be included in the capital murder jury instruction, but the circuit court allowed it. As stated earlier, the jury returned a guilty verdict on the capital murder, robbery, 1 and theft of property charges. Pamela was sentenced the same day, wherein the circuit court imposed a life sentence without parole for the capital murder conviction, thirty years’ imprisonment for the robbery conviction, and twenty years’ imprisonment for the theft-of-property conviction. From this judgment and commitment order, Pamela appeals.

Pamela first contends that the circuit court erred in denying her motion for directed verdict on the capital-murder charge because there was insufficient evidence to prove, in accordance with Ark. Code Ann. § 5-10-101 (a) (Repl. 1997), that Michael’s killing was in the furtherance of a felony, specifically a robbery. While this argument is not the first argument presented by Pamela, for double-jeopardy purposes, we will review this issue first to be consistent with our case law. Wright v. State, 368 Ark. 629, 249 S.W.3d 133 (2007). Our standard of review on this issue is familiar. We treat a denial of a directed verdict motion as a challenge to the sufficiency of the evidence. Gaye v. State, 368 Ark. 39, 243 S.W.3d 275 (2006). When reviewing a challenge to the sufficiency of the evidence, this court assesses the evidence in a light most favorable to the State and considers only the evidence that supports the verdict. Id. We affirm a judgment of conviction if substantial evidence exists to support it. Id.

Substantial evidence is evidence which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Id. Circumstantial evidence may constitute substantial evidence to support a conviction. Id. The longstanding rule in the use of circumstantial evidence is that, to be substantial, the evidence must exclude every other reasonable hypothesis than that of the guilt of the accused. Id. The question of whether the circumstantial evidence excludes every other reasonable hypothesis consistent with innocence is for the jury to decide. Id. Upon review, this court must determine whether the jury resorted to speculation and conjecture in reaching its verdict. Id.

Section 5-10-101 states in pertinent part:

(a) A person commits capital murder if:
(1) Acting alone or with one (1) or more other persons:
(A) The person commits or attempts to commit:
(v) Robbery, § 5-12-102;
(vi) Aggravated robbery, § 5-12-103;
and

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Cite This Page — Counsel Stack

Bluebook (online)
263 S.W.3d 528, 371 Ark. 50, 2007 Ark. LEXIS 503, Counsel Stack Legal Research, https://law.counselstack.com/opinion/terry-v-state-ark-2007.