Gay v. State

Cite as 2016 Ark. 433

SUPREME COURT OF ARKANSAS
No. CR-15-948

RANDY WILLIAM GAY Opinion Delivered December 8, 2016
APPELLANT
APPEAL FROM THE GARLAND
V. COUNTY CIRCUIT COURT
[NO. CR-11-428-1]

STATE OF ARKANSAS HONORABLE JOHN HOMER
APPELLEE WRIGHT, JUDGE

AFFIRMED.

KAREN R. BAKER, Associate Justice

On March 20, 2015, appellant, Randy William Gay, was convicted by a Garland

County Circuit Court jury of one count of capital felony murder in the 2011 death of Connie

Snow and sentenced to death. Gay appealed and presents seven issues on appeal: (1) the

circuit court violated Gay’s right to a fair and impartial trial by allowing Gay’s entire “pen

pack” to be submitted to the jury; (2) the circuit court erred by violating Gay’s rights to due

process by refusing to allow defense counsel to question potential jurors in depth regarding

their views on the death penalty and mitigation; (3) the circuit court’s inconsistent approach

to rehabilitative questions to veniremen resulted in the improper removal of jurors for cause

that denied Gay the right to a fair and impartial jury; (4) the circuit court erred in granting

the State’s motion for a mental-health evaluation of Gay over Gay’s objection; (5) the circuit

court erred by refusing to allow jury instructions AMI Crim. 2d 202 and AMI Crim. 2d 206,

which were proffered by the defense; (6) the circuit court erred in denying the defense
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mitigator of “lingering doubt” in the penalty phase; and (7) the circuit court erred for refusing

to allow Gay to introduce as a mitigating circumstance that Gay had a calming influence on

others while in custody.

I. Facts

Gay does not challenge the sufficiency of the evidence. Therefore, only a brief

recitation of the facts is necessary. James Westlake testified he and his family operated a

timber business in Garland County in 2011. James testified that he paid Gay “a few hundred

dollars each week” to “keep an eye” on their equipment overnight. On May 10, 2011,

James, Jim Westlake, and Rickey Stewart were attempting to repair machinery at their

logging business in a wooded area of Garland County. Around 5 p.m. that day, Gay arrived

in a pickup truck, and Snow was in the passenger seat. James testified that Gay exited the

truck and ordered Snow out of the truck; Snow did not comply, and Gay went back to his

truck and retrieved a shot gun and ordered Snow out of the truck. As Snow was attempting

to exit the truck; Gay shot Snow in the right side of her face. The testimony demonstrates

that James and Stewart both witnessed the shooting. James testified that Gay loaded Snow’s

body into the back of his truck and exited the property. Snow’s body was recovered four

days later in a shallow creek, and Gay was charged with capital murder. In 2013, Gay’s first

trial ended with a mistrial after the circuit court discovered that members of the jury had

violated instructions by conducting independent research. Prior to the first trial, on a motion

from the State and over an objection from Gay, the circuit court ordered a mental evaluation

of Gay. The State retried Gay in March 2015 and on March 20, 2015, the jury convicted

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Gay, sentenced him to death, and this appeal followed.

II. Points on Appeal

A. Gay’s “Pen Pack”

For his first point on appeal, Gay asserts the circuit court violated Gay’s right to a fair

and impartial trial by allowing Gay’s entire “pen pack” to be submitted to the jury. During

the sentencing phase, Gay introduced the “pen pack” that “spanned all periods of time that

[Gay] had been incarcerated in the Arkansas Department of Correction. It consisted of

approximately 300 pages and contained a large amount of information that was highly

prejudicial to [Gay].” Gay contends that the “pen pack” should not have been introduced

and considered by the jury and urges this court to reverse and remand this matter for a new

trial.

At trial, during the sentencing phase, Gay called Shelly Hamilton, the classification

administrator at the Department of Correction. Hamilton testified regarding Gay’s two prior

convictions for second-degree murder on two separate occasions, a felony conviction for felon

in possession of a firearm, Gay’s background, alleged parole violations, furloughs, and

Minnesota Multi-phasic Personality Inventory test results. However, Gay elicited the

testimony and introduced the “pen pack.” Further, Gay did not object to the introduction

of the “pen pack.”

Here, “before considering the merits of this point on appeal, we must first determine

whether the issue was properly preserved for appellate review. . . . It is well settled that

arguments not raised at trial will not be addressed for the first time on appeal.” Ray v. State,

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2009 Ark. 521, at 3–4, 357 S.W.3d 872, 876 (internal citations omitted). Further, “Arkansas

does not recognize plain error, i.e., an error not brought to the attention of the trial court by

objection, but nonetheless affecting substantial rights of the defendant.” Green v. State, 362

Ark. 459, 468, 209 S.W.3d 339, 344 (2005) (internal citations omitted). “It is well settled

that a contemporaneous objection is required to preserve an issue for appeal, but this court

has recognized four exceptions to the rule, known as the Wicks exceptions.” Springs v. State,

368 Ark. 256, 260, 244 S.W.3d 683, 686 (2006); Anderson v. State, 353 Ark. 384, 108

S.W.3d 592 (2003). These exceptions occur when (1) a trial court, in a death-penalty case,

fails to bring to the jury’s attention a matter essential to its consideration of the death penalty

itself; (2) a trial court errs at a time when defense counsel has no knowledge of the error and

thus no opportunity to object; (3) a trial court should intervene on its own motion to correct

a serious error; and (4) the admission or exclusion of evidence affects a defendant’s substantial

rights. Springs, 368 Ark. At 261, 244 S.W.3d at 686.

Here, Gay did not preserve the issue for review and has not asserted that the error falls

within one of the exceptions in Wicks. Finally, we have repeatedly stated that a defendant

cannot agree with a circuit court’s ruling and then attack the ruling on appeal. See, e.g.,

Camargo v. State, 346 Ark. 118, 55 S.W.3d 255 (2001); Roberts v. State, 352 Ark. 489, 504–05,

102 S.W.3d 482, 493 (2003). Based on the record before us, we do not find error with regard

to the introduction of the pen pack and affirm the circuit court.

B. Questioning Potential Jurors Regarding the Death Penalty and Mitigation

For his second point on appeal, Gay contends that the circuit court violated Gay’s due-

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process rights by refusing to allow Gay’s counsel to question potential jurors in depth

regarding their views on the death penalty and mitigation. Gay asserts that the circuit court

restricted voir dire examination of potential jurors in two major areas: (1) the potential jurors’

views on the death penalty and (2) mitigation. The State responds that the circuit court acted

with sound discretion, and the circuit court repeatedly warned defense counsel that he was

“fact qualifying” the potential jurors.

At issue is the voir dire examination of potential jurors. In Isom v. State, we explained

our standard:

The extent and scope of voir dire examination is within the sound discretion of the
circuit judge, and the latitude of that discretion is wide. See Henry v. State, 309 Ark.
1, 828 S.W.2d 346 (1992). The judge’s restriction of that examination will not be
reversed on appeal unless that discretion is clearly abused. Id. Abuse of discretion
occurs when the circuit judge acts arbitrarily or groundlessly. See Walker v. State, 304
Ark. 393, 803 S.W.2d 502 (1991).

Arkansas Rules of Criminal Procedure provide the procedure for the conduct of
proper voir dire in a criminal trial:

(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. The judge
shall initiate the voir dire examination by:

(i) identifying the parties; and
(ii) identifying the respective counsel; and
(iii) revealing the names of those witnesses whose names have been made
known to the court by the parties; and
(iv) briefly outlining the nature of the case.

(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.

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Ark. R.Crim. P. 32.2(a) and (b).

The fact that the Rules allow the circuit judge to permit such additional questioning
as he or she deems proper underscores the discretion vested in the circuit judge.

Isom, 356 Ark. 156, 171–72, 148 S.W.3d 257, 267–68 (2004).

Here, Gay contends that the circuit court erred by not allowing voir dire for further

questions into the veniremen’s beliefs concerning the death penalty and mitigation and

whether lack of premeditation was mitigation to an intentional murder. Gay further contends

that the State was allowed to ask jurors questions regarding intoxication, which was mitigation

evidence, and Gay was not able to ask questions regarding mitigation. Gay points to one

specific instance in which he alleges that, when questioning Juror McLernon, he was unable

to adequately explore the juror’s views regarding the death penalty and was therefore not able

to conduct a thorough voir dire. The State responds that the circuit court “even-handedly”

applied the same discretion in limiting questions by the State and by Gay.

Gay briefly points to language in his questioning of McLernon. The following

colloquy is the questioning Gay complains about:

DEFENSE COUNSEL: Besides the taking of a life, a homicide, do you feel that
there are other circumstances where the death penalty
should be applied?
....

MCLERNON: I do not think so.

....

DEFENSE COUNSEL: . . . Some people are of the belief, because of religion, the
way that they were raised, what they’ve read, life
experiences, I couldn’t tell you what it would be, that if
you take a life you should forfeit your life. Do you

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believe that?
....

MCLERNON: It depends on how bad of the situation. Other than
taking someone’s life.

DEFENSE COUNSEL: Okay. Now if I understand what you said, how bad a
situation beyond the taking of a life. Is that what you
said?

MCLERNON: There’s other circumstances that can make things a lot
worse than just taking the life.

DEFENSE COUNSEL: All right. Taking that last statement, would you be able
to look at any circumstances there were presented to you
to convince you that the death penalty’s not appropriate?

MCLERNON: I’m still on the side of the death penalty, so I can’t really
answer that question.

DEFENSE COUNSEL: And let me just tell you. We’re not allowed to give you
examples and say - -

MCLERNON: Oh, I know. I know.

DEFENSE COUNSEL: - - if this is proven, would you do this.

MCLERNON: I understand.

DEFENSE COUNSEL: You know it’s not like a - -

MCLERNON: I understand.

DEFENSE COUNSEL: - - slot machine, where you put it in, pull the handle and
get an answer.

MCLERNON: I know.

DEFENSE COUNSEL: So that’s why we’re talking in a vacuum.

MCLERNON: I understand.

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Here, Gay asserts that he was unable to adequately explore Juror McLernon’s view; but

makes conclusory statements and does not develop this argument. However, based on the

record discussed above, the record does not support Gay’s argument. Further, we “do not

consider an argument when the appellant presents no citation to authority or convincing

argument in its support, and it is not apparent without further research that the argument is

well taken.” Decay v. State, 2009 Ark. 566, at 3–4, 352 S.W.3d 319, 324 (internal citations

omitted). Further, based on our review of the record, Gay did not preserve this issue for

review. Gay did not contemporaneously object to the voir dire or proffer questions he sought

to ask the potential jurors.

Accordingly, based on our discussion above, we affirm the circuit court on Gay’s

second point.

C. Improper Removal of Jurors Based on the Circuit Court’s Inconsistency

For his third point on appeal, Gay asserts that the circuit court erred when it employed

an inconsistent approach to rehabilitative questions to veniremen, which resulted in the

improper removal of jurors for cause that denied Gay the right to a fair and impartial jury.

Further, Gay asserts that voir dire serves a critical function in assuring a fair trial and that the

circuit court’s uneven treatment regarding rehabilitation of jurors who favored the death

penalty as opposed to those who had problems with the death penalty constitutes an abuse of

discretion. Thus, Gay urges us to reverse and remand the matter for a new trial.

Here, Gay challenges rehabilitative questions by the circuit court to the following

prospective jurors: Sandra Barker, Blanche Young, Elmer George, Samantha Brown, and

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Carolyn Wetthington. Barker, Young, and Wetthington were struck by the defense with

peremptory challenges. The prosecution struck George with a peremptory challenge. The

record demonstrates that Gay did not object to the circuit court’s questioning or treatment

of these potential jurors that he now complains of in this appeal.

On the prosecution’s motion, the circuit court excused Brown for cause. However,

Gay did not object or preserve the issue for review. The record demonstrates that Gay did

not object below after Brown had been struck. This court has repeatedly stated that we will

not consider arguments raised for the first time on appeal. See Phavixay v. State, 2009 Ark.

452, 352 S.W.3d 311; see Decay, 2009 Ark. 566, at 7, 352 S.W.3d at 326.

Further, the record does not support Gay’s argument. The extent and scope of voir

dire examination is within the sound discretion of the circuit court judge, and the latitude of

that discretion is wide. Henry v. State, 309 Ark. 1, 828 S.W.2d 346 (1992). The circuit court’s

restriction of that examination will not be reversed on appeal unless that discretion is clearly

abused. Id. Abuse of discretion occurs when the circuit court acts arbitrarily or groundlessly.

See Walker v. State, 304 Ark. 393, 803 S.W.2d 502 (1991). “This court has said that the

proper test to be used in releasing a prospective juror for cause is whether the person’s views

would prevent or substantially impair the performance of his or her duties as a juror in

accordance with his or her instructions and oath. Williams v. State, 288 Ark. 444, 705 S.W.2d

888 (1986). Because Arkansas recognizes the death penalty, jurors in a capital murder case

must be able to consider imposing a death sentence if they are to perform their function as

jurors. Id.” Isom, 356 Ark. at 171-2, 148 S.W.3d at 267-68.

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Here, when asked whether she could consider guilt or innocence of capital murder in

the first phase of the trial without considering the death penalty, prospective juror Brown

stated that she was hesitant about being able to separate guilt from punishment. Brown also

stated that she did not want to make a decision about the death penalty, and “I’ve never

thought an eye for an eye . . . thing.” Gay has failed to assert error by the circuit court and

makes conclusory allegations. Further, based on our review of the record, we are

unpersuaded that the circuit court erred on this point, and we affirm the circuit court.

D. Motion for Mental Examination

For his fourth point on appeal, Gay asserts that the circuit court erred in granting the

State’s motion for a mental examination of Gay pursuant to Ark. Code Ann. § 5-2-

305(a)(1)(B) (Repl. 2013). Pursuant to Ark. Code Ann. § 5-2-305(a)(1)(B), which was in

effect at the time of the motion, the circuit court may, on its own, suspend all proceedings

and order a mental examination when there is “reason to believe” a mental disease or defect

of the defendant has become an issue in the case. The State based its motion on the fact that

Gay had previously been convicted of two murders, and in one of those cases, Gay put his

fitness to proceed as an issue. Thus, the State contended that it anticipated Gay might put his

mental condition at issue at some point, including sentencing, and the State was entitled to

have Gay submit to a mental examination. Gay objected and asserted that if the motion was

granted, the evaluation should be limited in scope; he also requested that counsel be present.

On May 14, 2012, the circuit court entered an order allowing the examination, denied Gay’s

request for a limited exam and granted Gay’s motion for counsel to be present on the

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premises.

Here, the record demonstrates that on August 14, 2012, psychologist Courtney A.

Rocho met with Gay. However, Gay refused to participate. Further, the examination was

not used against Gay. Although Gay asserts the circuit court erred, the examination was not

introduced at trial. Because Gay’s evaluation was never used at trial, he cannot demonstrate

prejudice. Hayes v. State, 274 Ark. 440, 447, 625 S.W.2d 498, 502 (1981) (“We fail to

perceive nor has appellant demonstrated how he was prejudiced by the non-use of these

statements.”); see Simpson v. State, 339 Ark. 467, 6 S.W.3d 104 (1999). Accordingly, we affirm

the circuit court on Gay’s fourth point.

E. AMI Crim. 2d 202 and 206

For his fifth point on appeal, Gay asserts that the circuit court erred in refusing to give

AMI Crim. 2d jury instructions 202 and 206. With regard to jury instructions, “a trial court’s

ruling on whether to submit a jury instruction will not be reversed absent an abuse of

discretion. Hill v. State, 344 Ark. 216, 40 S.W.3d 751 (2001).” Grillot v. State, 353 Ark. 294,

318, 107 S.W.3d 136, 150 (2003).

Gay challenges two separate instructions. First, AMI Crim. 2d 202, Inconsistent

Statements, provides,

Evidence that a witness previously made a statement which is inconsistent with
his testimony at the trial may be considered by you for the purpose of judging the
credibility of the witness but may not be considered by you as evidence of the truth
of the matter set forth in the statement.

At trial, Gay asserted that the instruction was applicable because witness Rickey

Stewart had been inconsistent with his testimony and statement given to the FBI. The State

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objected, and the circuit court refused to submit the instruction but allowed Gay to proffer

the instruction. The following is the entire exchange regarding the instruction:

DEFENSE COUNSEL: I also submitted an inconsistent statement instruction.

THE COURT: 202?

DEFENSE COUNSEL: 202, I believe. . . . The only potential witness that I - -
witness that this came up with was Mr. Stewart.

THE COURT: Okay.

DEFENSE COUNSEL: And it’s - - like I said, he’s the only - - I don’t recall Ms.
Nevels or Ms. - - is it McElroy?

THE COURT: And what were the inconsistent statements that Mr.
Stewart made?

DEFENSE COUNSEL: Well, during cross I asked him about things he said to the
FBI agent. There weren’t many questions, but when he
was being interviewed. And that’s the only thing, ‘cause
Mr. Westlake, that wasn’t the case. And then no one else
- - everybody else would’ve been crime lab or police.

THE COURT: State object to that instruction being given?

PROSECUTOR: Yes, Your Honor. I don’t believe that there was
anything where [defense counsel] pointed out you said
this differently in your statement. He might’ve asked
about the statement but I don’t think there was any
inconsistencies that were pointed out.

DEFENSE COUNSEL: If you’ll just show that proffered for the record on behalf
of the Defendant, please.

THE COURT: I’ll do that.

Here, Gay does not develop his argument but simply makes conclusory allegations.

We “do not consider an argument when the appellant presents no citation to authority or

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convincing argument in its support, and it is not apparent without further research that the

argument is well taken.” Decay, 2009 Ark. 566, at 3–4, 352 S.W.3d at 324 (2009) (internal

citations omitted). Further, based on the record, at trial, Gay did not identify the inconsistent

statements supporting his request for the instruction or explain why the instruction should

have been given. Accordingly, we do not find merit in Gay’s argument and affirm the circuit

court with regard to AMI Crim. 2d 202.

Second, Gay asserts that the circuit court erred in refusing to submit AMI Crim 2d.

206, Corroboration of Confession. Gay asserts that the circuit court mistakenly interpreted

AMI Crim. 2d 206 to have a corroboration requirement. Gay contends that the circuit court

should have given the instruction because Gay had provided a statement which the State

introduced at trial, and the State referred to the statement in closing arguments.

AMI Crim. 2d 206 provides,

A confession of a defendant, [unless made in open court], will not warrant a
conviction unless accompanied with other proof that the offense was committed.

The circuit court refused to submit the instruction but allowed Gay to proffer it:

DEFENSE COUNSEL: I did submit a 206 because there was a statement
given to the authorities that the State introduced
into evidence.
....

THE COURT: But this is a corroboration. But, you know, I
don’t think the statement ever admitted the crime.
Well it was - - I think the - - well, I can’t suggest
the purpose, but from what - - the way I
understood it was they put it in to show that he
was not telling the truth. . . . But I mean, this is a
corroboration instruction of a confession and I just
--

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DEFENSE COUNSEL: Well, I did it - - I did it ‘cause I think it’s - -

THE COURT: I’m gonna show this proffered too but I don’t
think I’m gonna give it . . . ‘Cause I think it’s
gonna be confusing.

At trial, during closing arguments, the State referred to notes provided by Special

Agent Scott Falls of the FBI during his investigation when Gay was questioned about the

crime. The State referred to Falls’s notes where Falls stated that Gay had claimed Gay was

drunk and did not remember anything and also stating that he had spent the day in Mt. Pine.

Gay asserts that the State’s closing argument was the “confession” and that the circuit court

should have submitted AMI Crim. 2d 206 to the jury. The portion of the closing argument

he asserts merits the instruction being given is as follows:

When you look at the statement that he gave, I submit to you, ladies and
gentleman, that clearly shows that Randy Gay is not telling the truth about what he
told the officers. Let’s go through that.

In the statement he gave to Scott Falls, he first claims he’s an alcoholic who
suffers from blackout spells and passes out frequently. Second, he has trouble recalling
and cannot remember what he’s done. He states that on Tuesday, May 10th, 2011,
he had bought some beer and whiskey and stopped at a friend’s house at nine in the
morning and stayed there ‘til 8:15 that night drinking. Ms. Nevels said that did not
happen. He showed up at 6:30 after the murder.

At approximately 8:15, he left with a girlfriend and went to her residence. He
admits that he owns a white Chevy pickup with a silver toolbox. He admits that he
has a shotgun. He admits that he works for James Westlike (sic). He stated that he
had knew - he knew Connie Snow, but had not seen her for about two years. He
denied having seen her for about two years. He denied having seen her within the
past few days.

When accused by Special Agent Falls of shooting and killing her in front of
witnesses, he alternates between “Uh, I was drunk and I can’t remember” to
maintaining that he had spent the day in Mountain Pine with the Nevels, which Ms.
Nevels says he did not do. And most heinously, when asked where he had hidden the

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body after he left her, took the pickup and dumped her, he said “He couldn’t help.”
“I don’t remember anything and I can’t report what I don’t remember.”

Here, the record demonstrates that the State made arguments regarding Gay’s

truthfulness in statements provided to law enforcement, but there was not a confession. The

State argued, “When you look at the statement he gave, I submit to you, ladies and

gentlemen, that clearly shows that Randy Gay is not telling the truth about what he told the

officers.” Accordingly, the statement or information was not used as a confession but

questions to Gay’s truthfulness. Further, the statement was made by the State during closing

arguments and was not evidence submitted to the jury. The jury had been instructed that

closing arguments are not evidence in the trial. Based on our standard of review and the

record before us, we do not find error on this point and affirm the circuit court.

F. “Lingering Doubt” Defense in Penalty Phase

For his sixth point on appeal, Gay asserts that the circuit court erred in denying his

proffered jury instruction regarding “lingering doubt” as a mitigating-circumstance. Gay

offered the following as a mitigating circumstance:

There are lingering doubts as to Randy Gay’s guilt as to the offense and as to
eligibility for the death penalty. Even though these doubts may not rise to the level of
‘reasonable doubt’ under the instructions given during the penalty phase of trial.

During the penalty phase of the trial, Gay requested that the circuit court submit the

instruction and the following colloquy occurred:

PROSECUTOR: That instruction does not go to anything about the
Defendant. He is targeting the jurors in terms of saying
even though you found the Defendant guilty of capital
murder, this may not have been your verdict. I do not

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think that is a true mitigator.

DEFENSE COUNSEL: I would first point out that the jury can very easily check
the box that “no member of the jury find that this is a
mitigating circumstance that probably exists.” Beyond
that, if there is even a single juror that has any lingering
doubt, it is absolutely a mitigator in the sense that it
makes the death penalty inapplicable.

PROSECUTOR: The issue is that, during that stage of the trial, they should
not even be concerned about what the punishment will
be later on. They were instructed not to do that and he
is saying they have a lingering doubt.

THE COURT: I am going to agree with the State on this. I am striking
[it].

Gay asserts that the circuit court erred in denying this instruction. Gay urges us to

revisit the holding in Ruiz v. State, 299 Ark. 144, 164, 772 S.W.2d 297, 308 (1989), where

this court held that it was not error to reject a “lingering doubt” instruction. Gay also asserts

that recent studies have shown that “lingering doubt” is the most significant factor in deciding

whether a defendant will receive a life sentence.

In Ruiz, we held,

The trial court refused an instruction proffered by the appellants which told the
jury it could consider in mitigation any lingering doubt it might have as to appellants’
guilt. It was not error to refuse this proposed instruction. See Franklin v. Lynaugh, 487
U.S. 164, . . . (1988); Mitchell v. State, 527 So. 2d 179 (Fla. 1988).

Id.; see also Nooner v. State, 2014 Ark. 296, at 58, 438 S.W.3d 233, 263 (“Mitigating

circumstances are not limited to those in existence at the time of the capital murder but may

include events that have occurred after the defendant’s arrest or even during imprisonment

pending a successful appeal from a death sentence. Skipper v. South Carolina, 476 U.S. 1

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(1986), followed in Pickens v. State, 292 Ark. 362, 730 S.W.2d 230 (1987). The trial court is

not required to instruct that a lingering doubt regarding guilt may be considered a mitigating

circumstance. Ruiz v. State, 299 Ark. 144, 772 S.W.2d 297 (1989).).”

Here, based on the record before us, Gay does not provide a convincing argument that

we should reconsider our holding in Ruiz, and we decline to revisit our holding in that case

and affirm the circuit court.

G. Calming Influence as a Mitigator

For his final point on appeal, Gay asserts that the circuit court erred in refusing to allow

Gay to introduce as a mitigating circumstance that Gay had a calming influence on others

while in custody. During the sentencing phase, Gay sought to submit the following

mitigating circumstance to the jury:

DEFENSE COUNSEL: Randy Gay has had a calming influence with others while
he has been in custody.

PROSECUTOR: I have reviewed the . . . Defense exhibit on the records
from the Department of Correction and I do not believe
there is any document in that file that would indicate that
and there’s been no testimony from any of the Defense
witnesses, from anyone he’s been in custody with that
he’s had a calming effect upon anyone.
....

DEFENSE COUNSEL: Judge, I think that the jury could reasonably infer that
he’s had a calming influence, just based on the absence of
any disciplinary infraction in his correctional record.

THE COURT: Okay, Again I agree with the State on that.

Arkansas Code Annotated § 5-4-602(4), “[m]itigation evidence must be relevant to

the issue of punishment.” See also Simpson v. State, 339 Ark. 467, 6 S.W.3d 104 (1999). We

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have observed that Ark. Code Ann. § 5-4-602 does not totally open the door to any and all

matters simply because they might conceivably relate to mitigation. McGehee v. State, 338

Ark. 152, 174, 992 S.W.2d 110, 123 (1999) (internal citations omitted). Relevant mitigating

evidence is limited to evidence that “concerns the character or history of the offender or the

circumstances of the offense.” Greene v. State, 343 Ark. 526, 532–33, 37 S.W.3d 579, 584

(2001) (internal citations omitted).

Here, Gay did not introduce evidence that he had a calming influence on others but

sought to submit the mitigating evidence based on an inference from Gay’s lack of disciplinary

record. However, Gay did not submit evidence to support this mitigating circumstance.

Accordingly, we hold that the circuit court did not err in its refusal to submit the mitigation

instruction regarding Gay’s calming influence on others.

III. Rule 10 Review

Finally, we note that under Rule 10 of the Arkansas Rules of Appellate Procedure–

Criminal, the entire record has been reviewed, including those issues that were not properly

preserved for appeal, and we hold that no reversible error exists. The record has also been

reviewed under Arkansas Supreme Court Rule 4-3(i) (2016). No reversible error has been

found.

Affirmed.

Montgomery, Adams & Wyatt, PLC, by: Dale E. Adams, for appellant.

Leslie Rutledge, Att’y Gen., by: Evelyn D. Gomez, Ass’t Att’y Gen., and Adam Jackson,

Ass’t Att’y Gen., for appellee.

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