Thornton v. State

Cite as 2015 Ark. 438

SUPREME COURT OF ARKANSAS
No. CR-15-287

JUSTIN JAMAILLE THORNTON Opinion Delivered December 3, 2015
APPELLANT
APPEAL FROM THE LINCOLN
V. COUNTY CIRCUIT COURT
[NO. 40CR-11-47-1]

STATE OF ARKANSAS HONORABLE BERLIN C. JONES,
APPELLEE JUDGE

REVERSED AND DISMISSED.

HOWARD W. BRILL, Chief Justice

Appellant Justin Thornton appeals from an order of the Lincoln County Circuit Court

convicting him of first-degree murder and sentencing him to a term of forty years’

imprisonment. On appeal, Thornton contends that the circuit court erred in (1) denying his

motion to dismiss the first-degree murder charge because the State did not present sufficient

proof of the purposeful-intent element of first-degree murder, (2) denying his motion to

dismiss for lack of jurisdiction, (3) denying his motion to dismiss for violation of his right to

a speedy trial, (4) denying his motion to dismiss for violation of the Double Jeopardy Clause,

and (5) denying his motion to dismiss for violation of his right to due process. We reverse

and dismiss.

I. Factual Background & Procedural History

Following a bench trial held in February 2013, the Lincoln County Circuit Court

found appellant Justin Thornton guilty of capital murder, felon in possession of a firearm,
 Cite as 2015 Ark. 438

unauthorized use of a vehicle, and abuse of a corpse for which he was sentenced to life

without parole plus ten years for his commission of the murder with a firearm. Thornton

appealed to this court, arguing that the circuit court erred in denying his motion for directed

verdict on the capital-murder charge because the proof failed to establish that he acted with

the requisite premeditation and deliberation. Thornton v. State, 2014 Ark. 157, at 1, 433

S.W.3d 216, 217. We held that the evidence was insufficient to support a conclusion that

Thornton killed the victim with a premeditated and deliberate intent and, we therefore

reversed and dismissed. In doing so, we stated, “While the evidence cannot sustain the charge

of capital murder, we offer no opinion about whether it would sustain a lesser offense.” Id.

at 15, 433 S.W.3d at 224. The case was handed down on April 10, 2014.

Following the issuance of our mandate on May 15, 2014, the State did not refile a

murder charge against Thornton;1 rather, the State filed in the circuit court on May 29, 2014,

a “Motion for Court to Consider Lesser-Included Offenses.” In its motion, the State argued

that, because this court concluded that there was insufficient evidence to sustain a charge for

capital murder, the circuit court should “now consider the lesser included offenses of murder

in the 1st degree, murder in the 2nd degree and manslaughter” and that, “[s]hould the

[circuit] court find the evidence sufficient to sustain a conviction for a lesser offense, it should

enter a judgment of conviction and sentence the defendant appropriately.” Thornton argued

1
The State notes in its brief on appeal that the Supreme Court of the United States
has left open the question of whether the State could, consistent with the Double Jeopardy
Clause of the United States Constitution, try a defendant for a lesser-included offense in the
event that the conviction of the greater offense was voided due to insufficiency of the
evidence. See Greene v. Massey, 437 U.S. 19, 25 n.7 (1978).

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that the State’s motion should be denied because this court did not remand the case to the

circuit court for any further rulings or findings of fact; rather, this court reversed and

dismissed. In its reply, the State contended that “[t]he fact that the capital murder conviction

was reversed and dismissed rather than remanded does not have any bearing on whether [the

circuit] court can now consider lesser-included offenses . . . Because this was a bench trial

instead of a jury trial, the supreme court’s decision to grant defendant’s motion and dismiss

the capital murder charge simply puts the [circuit] court back into the position it would have

been in had it dismissed the capital murder charge during the trial.”

The circuit court granted the State’s motion and set a hearing for December 1, 2014.

At the hearing, Thornton argued that the circuit court lacked jurisdiction to consider the

lesser-included offenses, that the conviction of a lesser-included offense following the reversal

and dismissal of a greater offense violates double-jeopardy principles, that his right to a speedy

trial was violated, and that the circuit court denied him due process at the hearing when it

did not allow him to argue that there was insufficient evidence to sustain convictions of the

lesser-included offenses. The circuit court rejected Thornton’s arguments, ruled that the

evidence from the February 2013 bench trial was sufficient to prove that Thornton acted

with purpose in causing the death of the victim, and found Thornton guilty of first-degree

murder.2 The circuit court then sentenced Thornton, as a habitual offender, to forty years’

imprisonment for first-degree murder, enhanced by ten years for its commission with a

2
A person commits murder in the first degree if with a purpose of causing the death
of another person, the person causes the death of another person. Ark. Code Ann. § 5-10-
102(a)(2) (Repl. 2013).

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firearm.3

II. Jurisdiction

As a threshold matter, this court must determine whether the circuit court had

jurisdiction to hear the State’s “Motion for Court to Consider Lesser-Included Offenses”

following this court’s reversal and dismissal in Thornton. This court’s opinion and mandate

in 2014 reversed and dismissed Thornton’s conviction for capital murder. Nevertheless, the

State contends that the letter and spirit of this court’s opinion and mandate conferred

jurisdiction on the circuit court to consider lesser-included offenses. According to the State,

we “invited” the circuit court to hear the State’s “Motion for Court to Consider Lesser-

Included Offenses” when we stated that we “offer[ed] no opinion about whether [the

evidence] would sustain a lesser offense.” 2014 Ark. at 15, 433 S.W.3d at 224. We disagree.

Because the issue of whether the evidence would sustain a lesser offense was not before the

court in 2014, any opinion we offered on that issue would have been advisory. It is not the

practice of this court to anticipate future litigation and issue advisory opinions. See Wright v.

Keffer, 319 Ark. 201, 203–04, 890 S.W.2d 271, 272 (1995).

Here, the State would have us hold that, in Thornton, when we stated that the case was

3
The circuit court noted that Thornton’s remaining convictions and sentences were
not affected by this court’s reversal and dismissal in Thornton, 2014 Ark. 157, 433 S.W.3d
216. Thus, the amended sentencing order entered December 16, 2014, reflected that
Thornton was sentenced to an aggregate total of seventy years’ imprisonment: concurrent
terms of forty years’ imprisonment for first-degree murder, twenty years’ imprisonment for
felon in possession of a firearm, and one year in the county jail for unauthorized use of
vehicle; a consecutive term of twenty years’ imprisonment for abuse of a corpse; and a
consecutive term of ten years’ imprisonment for the firearm enhancement. In the instant
appeal, Thornton challenges only his conviction and sentence for first-degree murder.

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reversed and dismissed, we meant that the case was reversed and remanded. This we will not

do. See Eichelburger v. State, 323 Ark. 551, 557, 916 S.W.2d 109, 113 (1996) (explaining that

if substantial evidence was presented, but prejudicial error occurred, the case is reversed and

remanded, but “[i]f the evidence [is] insufficient the case is reversed and dismissed”).

We note that the State’s position on appeal is inconsistent with its position in response

to Thornton’s pro se petition for writ of mandamus filed on December 17, 2014. In his

petition, Thornton sought to have this court direct the circuit judge to enter a new or

amended judgment reflecting the dismissal of the capital-murder charge by this court in

Thornton. The State contended that, although Thornton appeared to allege that the Arkansas

Department of Correction had not received the mandate in his case, and believed that the

opinion issued by this court remanded the case to the circuit court to issue a new judgment-

and-commitment order, this court’s opinion did not include a remand to the circuit court.

Specifically, the State asserted that this court “did not remand the case to the circuit court

to enter a new order or take any other action related to the reversed and dismissed capital-

murder conviction.” We agreed, stating, “Our decision reversed and dismissed petitioner’s

conviction for capital murder; there was no remand requiring any action by the trial court.”

Thornton v. Jones, 2015 Ark. 109, at 2 (per curiam).

Thus, we hold that, because the conviction was reversed and dismissed, the circuit

court did not have jurisdiction to hear the State’s “Motion for Court to Consider Lesser-

Included Offenses.” Accordingly, we reverse and dismiss.

Reversed and dismissed.

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WOOD, J., concurs.

BAKER , GOODSON , and HART, JJ., dissent.

KAREN R. BAKER , Justice, dissenting. Because the majority reversed and

dismissed Thornton’s conviction in Thornton v. State, 2014 Ark. 157, 433 S.W.3d 216

(“Thornton I”), I cannot join the majority’s opinion.

Simply put, the lack of clarity in Thornton I has caused the majority in Thornton’s case

today to attempt to craft a solution that supports Thornton I and reverses and dismisses

Thornton’s first-degree-murder conviction that resulted from a hearing in the circuit court

following the majority’s decision in Thornton I. The record demonstrates that upon return to

the circuit court, the circuit court expressed its reservation on whether it retained jurisdiction

to address “the lesser includeds”: “[T]he [Supreme] court specifically said they were not

addressing the lesser includeds. Well, it says, ‘We offer no opinion about whether it would

sustain a lesser offense.’ . . . This Court would readily admit that this is a case of first

impression to this Court. This court had sought far and near, low and high trying to find a

case like this case, and it not one like this case, then one similar to this case and unfortunately

was able to find a case.” I sympathize with the circuit court’s dilemma. Nevertheless, because

the majority reversed and dismissed Thornton’s conviction in Thornton I, there was no remand

or return to circuit court. Pursuant to the majority’s mandate in Thornton I, Thornton has no

conviction against him at this juncture.

In Thornton I, the majority explained that, at trial,

[t]he circuit court denied the motion [for directed verdict]. Thornton was the only
defense witness and at the close of all the evidence, he again renewed his motions for

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a directed verdict. The circuit court denied the motions and took the case under
advisement. The court then ruled from the bench that the State had proved the
charges of capital murder, possession of a firearm, and abuse of a corpse. But, the
circuit court reduced the felony-theft charge to a misdemeanor count of unauthorized
use of a vehicle. The circuit court entered a sentencing order on March 4, 2013,
finding Appellant guilty as set forth above.

2014 Ark. at 152, 3–4, 433 S.W.3d at 218–19.

The majority in Thornton I ultimately held:

[We] must reverse Thornton’s conviction for capital murder. While the evidence
cannot sustain the charge of capital murder, we offer no opinion about whether it
would sustain a lesser offense. See, e.g., Acuff v. State, 253 Ark. 85, 484 S.W.2d 698
(1972).[1]

Reversed and dismissed.

Subsequent to the majority opinion, the State filed a petition for rehearing asserting

that “the court should clarify that the convictions of felony theft of property, possession of a

firearm, and abuse of a corpse still stand.” In a 5–2 decision, the majority denied the State’s

petition for rehearing without opinion. Accordingly, a majority of this court denied the

petition for rehearing after the majority dismissed Thornton’s conviction citing to a case that

was reversed and remanded for further proceedings.

Thereafter, the majority issued its mandate and “reversed and dismissed” his

conviction. The mandate stated in pertinent part:

THIS CRIMINAL APPEAL WAS SUBMITTED TO THE ARKANSAS
SUPREME COURT ON THE RECORD OF THE LINCOLN COUNTY
CIRCUIT COURT AND BRIEFS OF THE RESPECTIVE PARTIES. AFTER
DUE CONSIDERATION, IT IS THE DECISION OF THE COURT THAT

1
I must note that the citation to Acuff has led to the confusion as well because, in Acuff,
we reversed and remanded Acuff’s case—we did not reverse and dismiss the case.

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THE CONVICTION IS REVERSED AND DISMISSED FOR THE REASONS
SET OUT IN THE ATTACHED OPINION.

BAKER AND GOODSON, JJ., DISSENT.

Subsequent to the majority’s disposition in Thornton I, Thornton filed a writ of

mandamus in which Thornton sought to have this court direct the circuit court judge to enter

an amended order reflecting the dismissal of the capital-murder charge by this court in

Thornton I. We denied the writ and held,

[O]ur decision reversed and dismissed petitioner’s conviction for capital murder; there
was no remand requiring any action by the trial court. Because the trial court was not
directed to enter an amended judgment, petitioner has not established that Judge Jones
was obligated to enter an amended judgment or that he has failed to perform a duty
imposed by this court.

Thornton v. Jones, 2015 Ark. 109, at 2.

After the majority’s mandate in Thornton I was issued, the State returned to the circuit

court and filed a “Motion for Court to Consider Lesser-Included Offenses.” In other words,

despite this court’s reversal and dismissal, the matter was again taken up by the circuit court.

Thornton was convicted of first degree murder, and returns yet again to this court on appeal.

The majority states that Thornton’s capital murder charge was dismissed. This

statement is flawed for two reasons. First, the majority’s mandate in Thornton I did not state

that the capital-murder conviction was dismissed. Instead, the majority’s mandate stated that

the conviction was reversed and dismissed. Second, the majority here, as the majority did in

Thornton I, again fails to address the remaining charges and simply glosses over the fact that

the majority’s mandate in Thornton I reversed and dismissed Thornton’s conviction.

Further, the majority states in footnote 3 that “[t]he circuit court noted that

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Thornton’s remaining convictions and sentence were not affected by this court’s reversal and

dismissal in Thornton, 2014 Ark. 157, 433 S.W.3d 216.” Thus, the majority states, “the

amended sentencing order . . . reflected that Thornton was sentenced to an aggregate total

of seventy years’ imprisonment: concurrent terms of forty years’ imprisonment for first-degree

murder, twenty years’ imprisonment for felon in possession of a firearm, and one year in the

county jail for unauthorized use of a vehicle; a consecutive term of twenty years’

imprisonment for abuse of a corpse; and a consecutive terms of ten years’ imprisonment for

the firearm enhancement.” The majority concludes with the statement that, “i[n] the instant

appeal, Thornton only challenges his conviction and sentence for first-degree murder.” The

majority appears to be implying from this statement that the convictions that are unchallenged

remain. However, the statement was made in a case that the majority now holds the court

lacked jurisdiction to hear and the statement of the circuit court’s opinion and the amended

sentencing order are insignificant. The imperative language that the majority fails to identify

is that, despite the majority opinion or the circuit court’s position, the majority’s mandate in

Thornton I unequivocally reversed and dismissed Thornton’s conviction. The majority in

Thornton I did not sever the convictions, on the charges other than capital murder, as we have

done in other cases. In Martin v. State, 290 Ark. 293, 297, 718 S.W.2d 938, 940 (1986), we

addressed the issue of the mandate in a case with multiple convictions and explained,

The remaining question is, “What mandate should be issued?” The offenses charged,
first degree murder and first degree battery, are separate and distinct offenses, defined
by separate and distinct statutes, and each charge required separate and distinct
evidence for conviction. When a judgment in a criminal case is correct as to one
count, but erroneous as to another, as in this case, we have the power to sever the
judgment, affirm the count on which the appellant was properly convicted, and reverse

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and grant a new trial as to the other. Such a procedure is used by the Eighth Circuit
Court of Appeals, United States v. Greene, 591 F.2d 471 (8th Cir. 1979), by our Court
of Appeals, Gross v. State, 8 Ark. App. 241, 650 S.W.2d 603 (1983), and by other
states, see, e.g., People v. Schnebley, 27 A.D.2d 639, 275 N.Y.S.2d 763 (1966).

See also Nard v. State, 304 Ark. 159, 161, 801 S.W.2d 634, 636 (1990); Parker v. State, 292

Ark. 421, 436–37, 731 S.W.2d 756, 764 (1987); Callahan v. State, No. CACR 92-1494, 1993

WL 540142, at *1 (Ark. Ct. App. Dec. 15, 1993). Here, because the majority failed to sever

the convictions, the majority’s mandate in Thornton I, is clear—Thornton’s entire conviction

was reversed and dismissed, including the possession of a firearm, abuse of a corpse, and the

unauthorized use of a vehicle. If the majority in Thornton I had intended to only reverse and

dismiss Thornton’s capital-murder conviction, they could have severed the charges and

affirmed all of the convictions. They might also have clarified their decision when the State

petitioned for rehearing and specifically asked that they do so. The majority could have also

done any of the following: reversed and remanded the case for further proceedings; severed

the convictions, and affirmed in part and reversed and remanded in part; entered a judgment

on the remaining offenses based on the evidence; or severed the convictions and reversed and

dismissed the capital-murder conviction allowing the State to attempt to avoid double-

jeopardy violations and refile a first-degree murder charge or other homicide offense.

However, that is not what the majority did. The majority reversed and dismissed Thornton’s

conviction.2

2
This position is supported by the State in its brief wherein it recognizes that “[T]he
Court reviews judgments, not individual convictions in judgments, see e.g., Arkansas Rule
of Appellate Procedure – Criminal 2 (2014).”

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Accordingly, in Thornton I, the majority’s mandate unambiguously reversed and

dismissed Thornton’s conviction. Stated differently, the majority reversed and dismissed

Thornton’s entire judgment and conviction, cannot modify that mandate, and Thornton no

longer has a conviction against him. See Milsap v. Holland, 186 Ark. 895, 56 S.W.2d 578

(1933); Stroud v. Crow, 209 Ark. 820, 823, 192 S.W.2d 548, 549 (1946) (the supreme court

cannot amend its opinion after lapse of the term in which it was handed down.)3 Therefore,

Thornton’s return to this court today and the majority’s reversal and dismissal of his appeal

today is nonsensical because his entire case was dismissed by the mandate issued in Thornton

I.4

After the majority’s mandate in Thornton I was issued, the state’s only option was to

refile all charges they sought to bring against Thornton. That the state was aware of the effect

3
See also Ginn v. Penobscot Co., 342 A. 2d 270, 274 (Me. 1975) (“Absent a statutory
or rule provision to the contrary, the general rule is that, after an appellate court has
determined the issues involved in the case submitted to it and caused its judgment in
conformity with such determination to be entered and the case, together with the rescript
of decision, to be remanded to the lower court, the appellate court thereafter has no power
to reconsider, alter, or modify its decision. An appellate court, generally speaking, is without
power to recall a mandate regularly issued for the purpose of correcting judicial error. See,
5B C.J.S. Appeal and Error s 1996; 5 Am. Jur. 2d s 1008.”); 5 C.J.S. Appeal and Error § 1175
(“The rule most generally adhered to is that an appellate court is without power to recall a
mandate regularly issued without mistake, inadvertence, fraud, prematurity, or
misapprehension, and that it will not recall the mandate for the purpose of re-examining the
cause on the merits, or to correct judicial error. Likewise, a mandate may not be recalled for
the purpose of granting supplemental relief.”).
4
It is also unclear if the majority today is reversing and dismissing Thornton’s first-
degree murder conviction or simply dismissing the appeal because the majority holds: “We
reverse and dismiss[,]” “REVERSED AND DISMISSED” and “Accordingly, we reverse and
dismiss.”

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of the mandate in Thornton I is clear from their petition for rehearing asking this court to

clarify that Thornton’s convictions other than his capital murder conviction still stood. The

state’s petition was denied. At that point, the state’s only option was to once again file charges

against Thornton for all offenses. No doubt the state’s concerns about double-jeopardy

impacted on the decision to return to the circuit court and file their petition to consider lesser

offenses; however, it was abundantly clear after this court’s per curium opinion denying

Thornton’s petition for mandamus that the trial court had no jurisdiction to consider such a

petition. Thornton v. Jones, 2015 Ark. 109, 1.

Finally, the majority here does not address these issues or the existing precedent

discussed above. Additionally, the majority fails to recognize that criminal laws are to be

strictly construed in favor of the accused. See Lewis v. State, 220 Ark. 259, 247 S.W.2d 195

(1952); Dowell v. State, 283 Ark. 161, 162, 671 S.W.2d 740, 741 (1984). Thus, I respectfully

dissent.

HART, J., joins.

COURTNEY HUDSON GOODSON , Justice, dissenting. In the first appeal of this

case, a majority of this court erroneously concluded that the evidence was not sufficient to

support Thornton’s conviction for capital murder. See Thornton v. State, 2014 Ark. 157, 433

S.W.3d 216 (Goodson, J., dissenting). Today, this court compounds that error by

misinterpreting the previous opinion and by misapplying the mandate rule to hold that the

circuit court did not have the authority to consider Thornton’s unquestionable guilt of a

lesser-included offense. Once again, I must dissent.

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It should be remembered that this case involves the untimely death of a young man

named Kwame Turner. The evidence produced at the trial, when appropriately viewed in

the light most favorable to the State, shows that Thornton shot Turner in the head with a .45-

caliber handgun while Turner was sitting in a chair inside Thornton’s home, where he lived

alone. A neighbor passing by Thornton’s house heard the gunshot. Thornton emerged from

his home and told the neighbor that his gun had discharged when he dropped it on the floor.

However, the bullet that struck Turner entered his head behind and above the left ear and

continued in a downward trajectory, at an angle from left to right, where it exited Turner’s

right jaw and then lodged in his right arm. Using Turner’s own vehicle to conceal his

misdeed, Thornton dumped Turner’s body in a ditch and left the car in a parking lot. After

the authorities developed Thornton as a suspect in Turner’s death, the police found him

hiding in a hotel room registered in another person’s name. He also gave a false name to the

police in an effort to avoid arrest. During his incarceration before the trial, Thornton wrote

a letter in which he threatened the lives of witnesses who might testify against him. Sitting

as the trier of fact with all of this evidence before it, the circuit court found Thornton guilty

of capital murder, theft of property, and abuse of a corpse.

In the first appeal, Thornton’s sole point for reversal was that the evidence was

insufficient to support his conviction for capital murder. To my everlasting disbelief, a

majority of this court found merit in Thornton’s contention that proof of premeditation and

deliberation was lacking. Instead of focusing on whether substantial evidence in the record

supported the conviction, the only issue in question, the majority was obsessed with the

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circuit court’s oral pronouncement of guilt, even though Thornton did not claim any error

flowing from the court’s remarks. Also to Thornton’s good fortune, the majority glossed over

the abundant and substantial evidence establishing the element of intent and his consciousness

of guilt: the nature and location of the wound and the type of weapon used; Thornton’s false

and improbable statement to explain suspicious circumstances; his attempt to silence witnesses;

his giving of a false name and flight to avoid arrest; and his attempts to cover up his

connection to the crime, including the disposal of Turner’s body.

In concluding the opinion, the majority wrote,

Accordingly, because the circuit court engaged in speculation and
conjecture in determining that Thornton acted with premeditation and
deliberation and improperly shifted the burden of proof when weighing the
evidence, we must reverse Thornton’s conviction for capital murder.
While the evidence cannot sustain the charge of capital murder, we
offer no opinion about whether it would sustain a lesser offense. See,
e.g., Acuff v. State, 253 S.W.2d 85, 484 S.W.2d 698 (1972).

Reversed and dismissed.

Thornton, 2014 Ark. 157, at 14–15, 433 S.W.3d at 224 (Thornton I) (bold type added).

The mandate of this court, issued on May 15, 2014, stated as follows:

THIS CRIMINAL APPEAL WAS SUBMITTED TO THE ARKANSAS
SUPREME COURT ON THE RECORD OF THE LINCOLN COUNTY
CIRCUIT COURT AND BRIEFS OF THE RESPECTIVE PARTIES.
AFTER DUE CONSIDERATION, IT IS THE DECISION OF THE
COURT THAT THE CONVICTION IS REVERSED AND
DISMISSED FOR THE REASONS SET OUT IN THE ATTACHED
OPINION.

(Bold type added.)

Following the issuance of the mandate, the State filed a motion asking the circuit court

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to consider the lesser-included offenses, as specifically referred to by this court in the majority

opinion. Over Thornton’s objection, the circuit court granted the State’s motion, and based

on the record of trial, the court found Thornton guilty of first-degree murder and sentenced

him to a term of forty years’ imprisonment.

In this second appeal, the majority now holds that (1) the issue whether the evidence

would support a finding of guilt on a lesser-included offense was not before this court in the

first appeal, and (2) the circuit court did not have jurisdiction to consider lesser-included

offenses because this court “reversed and dismissed” in the first appeal. The majority is

wrong on both counts.

The heart of this matter lies in the proper interpretation of this court’s mandate and

opinion in Thornton I. A “mandate” is the official notice of the action of the appellate court,

directed to the court below, advising that court of the action taken by the appellate court, and

directing the lower court to have the appellate court’s judgment duly recognized, obeyed, and

executed. Johnson v. State, 366 Ark. 390, 235 S.W.3d 872 (2006) (Johnson IV). Under the

mandate rule, “an inferior court has no power or authority to deviate from the mandate issued

by an appellate court.” Ingle v. Ark. Dep’t of Human Servs., 2014 Ark. 471, at 6, 449 S.W.3d

283, 287 (quoting Dolphin v. Wilson, 335 Ark. 113, 118, 983 S.W.2d 113, 115 (1998)). We

have observed that the “lower court is vested with jurisdiction only to the extent conferred

by the appellate court’s opinion and mandate.” City of Dover v. Barton, 342 Ark. 521, 525,

29 S.W.3d 698, 700 (2000). Our law requires the circuit court to implement both the letter

and spirit of the mandate, taking into account the appellate court’s opinion and the

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circumstances it embraces. Johnson, supra; Smith v. AJ & K Operating Co., 365 Ark. 229, 227

S.W.3d 899 (2006).

This court applied these principles in Johnson IV, supra. There, this court had

previously reversed and remanded for the testing of negroid hairs based on our understanding

that the negroid hairs had not been retested. Johnson v. State, 356 Ark. 534, 157 S.W.3d 151

(2004) (Johnson III). Also, according to the opinion in Johnson III, the DNA testing that had

been conducted indicated that the probability was 1 in 250 that the DNA from the negroid

hairs belonged to an African American other than Johnson. We stated that the “1 in 250 ratio

is so broad and includes so many persons other than Mr. Johnson that he is entitled to

retesting under Act 1780.” Johnson III, 356 Ark. at 550, 157 S.W.3d at 163–64. On remand,

the circuit court did not order retesting of the hairs as this court had directed. Instead, the

circuit court entered an order finding that the State had complied with this court’s

requirement that the hairs be retested, observing that the hairs had actually been retested in

preparation for a second trial in 1997 and that this test had revealed a statistical frequency of

1 in 720 million that the hairs belonged to someone other than Johnson in the African

American population.

On appeal from that decision in Johnson IV, Johnson argued that the circuit court had

defied our mandate by failing to have the hairs retested. This court disagreed, noting that the

circuit court did not reopen the case or consider any issues other than the retesting of the

negroid hairs. In so holding, we reasoned that the point of error in the Johnson III opinion

concerned the troubling 1 in 250 probability, and we concluded that the circuit court had

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correctly found that the hairs had been retested after that point of error to reflect a probability

of 1 in 720 million. Accordingly, this court held that the circuit court had complied with the

letter and spirit of our mandate in Johnson III, and we stated that retesting was no longer

necessary.

Our decision in Arkansas State Highway Commission v. Townsend, 317 Ark. 581, 879

S.W.2d 447 (1994) (Townsend II), is also instructive. In that case, we had agreed with the

Highway Commission’s argument in a prior appeal that the chancellor had erred by not

granting its request for an injunction to compel the removal of structures from its right-of-

way. Ark. State Highway Comm’n v. Townsend, 313 Ark. 702, 858 S.W.2d 66 (1993)

(Townsend I). With that holding, this court reversed and “dismissed” the original case. Id at

706, 858 S.W.2d at 69. After the decision in Townsend I, the Highway Commission filed a

petition in the same proceeding asking the chancellor to enforce this court’s opinion and

mandate and to require the removal of the structures. The chancellor declined that request,

accepting Townsend’s argument that she lacked jurisdiction to entertain the Highway

Department’s petition once this court had “dismissed” the action on appeal. The Highway

Commission appealed the chancellor’s dismissal of its petition to enforce our mandate and

opinion. In Townsend II, this court construed the mandate along with the opinion in

Townsend I, wherein we had found error in the chancellor’s refusal to grant an injunction. In

reading the two together, we rejected Townsend’s argument that the chancellor was

powerless to enforce our holding with regard to the blockage of the right-of-way. We also

found no merit in Townsend’s contention that our use of the phrase “reversed and dismissed”

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trumped the holding of the opinion so as to deprive the chancery court of jurisdiction. This

court said,

Granted, our signals to the trial court were not crystal clear in Townsend I as
we reversed and dismissed the decree of the court when we should have
reversed and remanded the matter. However, the body of the opinion was
quite clear in its intended result, despite our stated disposition.

Townsend II, 317 Ark. at 585, 879 S.W.2d at 449.

In the case at bar, the previous opinion recites that “we must reverse Thornton’s

conviction for capital murder.” Thornton, 2014 Ark. 157, at 14–15, 433 S.W.3d at 224. It

concludes with the language “reversed and dismissed.” Id. The mandate also states that this

court reversed and dismissed “the conviction” and that we did so “for the reasons set out in

the attached opinion.” In the opinion, this court determined that the evidence was not

sufficient to support the conviction for capital murder. Accordingly, a plain reading of the

opinion and the mandate reveals that this court reversed and dismissed only Thornton’s

conviction for capital murder.

The majority in the present appeal correctly notes that it can be appropriate to reverse

and dismiss when the evidence is insufficient to sustain the finding of guilt. See Harris v. State,

284 Ark. 247, 681 S.W.2d 334 (reversing and dismissing where the evidence of the

defendants’ connection with the drug-manufacturing operation was insufficient to support

their convictions for manufacturing a controlled substance). However, that is not all that this

court said in Thornton I. The final sentence of text states that “[w]hile the evidence cannot

sustain the charge of capital murder, we offer no opinion about whether it would sustain a

lesser offense. See, e.g., Acuff v. State, 253 S.W.2d 85, 484 S.W.2d 698 (1972).” Thornton I,

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2014 Ark. 157, at 15, 433 S.W.3d at 224. In Acuff, although completely ignored by the

majority here, this court held that the evidence did not support Acuff’s conviction for assault

with intent to kill. We said, however, “this is not to say that it would not sustain a lesser

offense.” Accordingly, this court in Acuff reversed and remanded for that determination to

be made. The disposition in Acuff was eminently correct. When the error has no bearing on

the issue of guilt versus innocence, remanding for the consideration of lesser-included offenses,

as we did in Acuff, is entirely consistent with our well-established caselaw. We have long held

that when the evidence is insufficient to convict for a certain crime, but there is sufficient

evidence to convict for a lesser-included offense of that crime, this court may, depending on

the facts, “reduce the punishment to the maximum for the lesser offense, reduce it to the

minimum for the lesser offense, fix it ourselves at some intermediate point, remand the case

to the trial court for the assessment of the penalty, or grant a new trial either absolutely or

conditionally.” Dixon v. State, 260 Ark. 857, 862, 545 S.W.2d 606, 610 (1977) (quoting

Clark v. State, 246 Ark. 876, 880, 440 S.W.2d 205, 207 (1969)); see also Tigue v. State, 319

Ark. 147, 889 S.W.2d 760 (1994); Davidson v. State, 305 Ark. 592, 810 S.W.2d 327 (1991);

Trotter v. State, 290 Ark. 269, 719 S.W.2d 268 (1986).

Regrettably, the majority opinion in Thornton I is no model of clarity. That being so,

this is an occasion where this court must look beyond mere words to interpret the import of

the mandate and the opinion in the prior appeal, as “it is not the form of the order on the first

appeal that controls, but the substance of that order.” Glover v. Woodhaven Homes, Inc., 346

Ark. 397, 400, 57 S.W.3d 211, 215 (2001) (quoting Snapp v. State Farm Fire & Cas. Co., 388

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P.2d 884, 887 (Cal. 1964)); see also Johnson v. Cincinnati Ins. Co., 375 Ark. 164, 289 S.W.3d

407 (2008). The point of error in Thornton I was this court’s conclusion that the evidence of

premeditation and deliberation was insufficient. Consequently, this court reversed and

dismissed the conviction for capital murder. Because the court’s determination had nothing

to do with guilt or innocence, this court, based on the facts of the case, exercised the option

to express no opinion on Thornton’s guilt of the lesser-included offenses. However, it is

evident by that statement and the citation to the decision in Acuff that this court left open the

question of Thornton’s guilt on lesser-included offenses. The majority in this case is simply

incorrect by stating that the issue of lesser-included offenses was not before the court. The

reference to the decision in Acuff cannot be dismissed as mere surplusage, and the question of

lesser-included offenses became relevant and was indeed before the court once it had

determined that the evidence did not sustain the greater offense. Dixon, supra. Because the

point of error in Thornton I concerned the conviction for capital murder, and because the

opinion pointedly left open and did not foreclose consideration of the lesser-included offenses,

I cannot conclude that the circuit court was deprived of jurisdiction and that it did not have

the authority to consider Thornton’s guilt on any of the lesser-included offenses. Consistent

with the opinion, the circuit court did not reopen the case to examine any issues other than

the lesser-included offenses. The stated disposition in Thornton I cannot be viewed in

isolation. On the contrary, our caselaw establishes that we must examine the entire opinion,

including our citation to Acuff and the acknowledgment of lesser-included offenses. In my

view, the circuit court complied with the letter and spirit of our opinion and mandate in

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Thornton I. Therefore, I would not reverse the circuit court on this basis.

Moreover, this court’s per curiam denying Thornton’s petition for writ of mandamus

is supportive of my view. Thornton v. Jones, 2015 Ark. 109 (per curiam). There, Thornton

sought the writ to require the circuit court to enter an amended judgment to reflect the

dismissal of the capital-murder conviction. In denying the petition, we said

As the respondent points out, our decision reversed and dismissed petitioner’s
conviction for capital murder; there was no remand requiring any action by the
trial court. Because the trial court was not directed to enter an amended
judgment, petitioner has not established that Judge Jones was obligated to enter
an amended judgment or that he has failed to perform a duty imposed by this
court.

Id. at 2. Significantly, this court did not hold that the circuit court lacked jurisdiction to enter

an amended judgment based on the disposition in Thornton I. Instead, we merely stated that

the prior decision did not direct the circuit court to take any action. Clearly, this court did

not say that the previous decision prohibited the circuit court from acting. Consequently, the

per curiam does not require this court to now hold that the circuit court lacked jurisdiction

to consider lesser-included offenses.

In a nutshell, the circuit court did not violate the mandate rule by taking up the lesser-

included offenses and by finding Thornton guilty of first-degree murder. Accordingly, I

dissent.

Potts Law Office, by: Gary W. Potts, for appellant.

Leslie Rutledge, Att’y Gen., by: Vada Berger, Ass’t Att’y Gen., for appellee.

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