dissenting. The critical question for this court to resolve is whether the evidence was sufficient to convict Howard for the murder of Shannon Day. I do not believe it was. Surely, it was not forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. See Smith v. State, 346 Ark. 48, 55 S.W.3d 251 (2001). For that reason, I respectfully dissent. I would reverse Howard’s convictions for Shannon’s murder and Trevor’s attempted capital murder and the death sentence as well. I would remand this case for resentencing solely on Howard’s conviction for the capital murder of Brian Day.
The proof implicating Howard in Shannon’s murder is paper thin. The majority, in fact, says as much when it states that it is relying on Howard’s “inappropriate and unexplainable behavior” as the most incriminating evidence against him. Inappropriate and unexplainable behavior, in my mind, is not forceful evidence that would compel a conclusion. The State’s evidence consists of a fingerprint on a Mountain Dew bottle in Shannon’s living room, the fact that Howard was with Shannon for part of Saturday morning, and various statements that Jennifer Qualls and Vicki Howard attribute to Howard during the relevant time period. Those statements include (1) that Brian and Shannon were hiding out and only Howard knew where they were; (2) that Shannon’s purse and bags were in the back of Jennifer’s car and he had gotten rid of them; (3) a statement to Jennifer to clean out her car; (4) a question to Jennifer, “Are you going to turn me in?”; and (5) a statement to Vicki that he had handcuffs in his Wal-Mart bag for kinky sex. Shannon was found in handcuffs. This can best be described as an extremely weak circumstantial case.
What is most notable about this case is what is not known. Various pieces of the puzzle are missing, and we are forced to engage in speculation to fill in the gaps. For example, we know next to nothing about the drug deal Brian was involved in Thursday night before the Saturday morning murders. The same is true about Brian’s deal involving stolen property scheduled for Friday night. We do know that Brian needed a U-Haul truck to transport something but whether it was drugs or stolen property or for some other purpose is totally a mystery based on the record before us. Most importantly, we do not know whom Brian was dealing with in these criminal matters. We do know from Shannon’s conversation with a friend that she feared for their lives because Brian was getting in “too deep.” There can be no doubt that Brian’s criminal activity was integrally connected to the killings.
We also know that Shannon’s body was found under picture frames with unidentified fingerprints on them. I agree with Howard that these fingerprints are much more likely to have come from the perpetrator of Shannon’s murder than Howard’s fingerprint on a Mountain Dew bottle found on a table in her home. By everyone’s admission, Howard was a close friend of the Days, and a soft drink bottle with his prints in their home was to be expected.
It is axiomatic under our caselaw, and we cite the principle repeatedly, that if circumstantial evidence is used to provide the basis for a conviction, it must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. See, e.g., Price v. State, 347 Ark. 708, 66 S.W.3d 653 (2002); Whitfield v. State, 346 Ark. 43, 56 S.W.3d 357 (2001); Fudge v. State, 341 Ark. 759, 20 S.W.3d 315 (2000); Engram v. State, 341 Ark. 196, 15 S.W.3d 678 (2000). Thus, if you have two equally reasonable conclusions as to what occurred, this merely gives rise to a suspicion of guilt which is not enough to support a conviction. Fudge v. State, supra; Gregory v. State, 341 Ark. 243, 15 S.W.3d 690 (2000). As this court recendy said:
With respect to the exclusion of every other reasonable hypothesis, Judge Butler, speaking for the court, said in the case of Bowie v. State, 185 Ark. 834, 49 S.W.2d 1049 (1932):
This demands that in a case depending upon circumstantial evidence the circumstances relied upon must be so connected and cogent as to show guilt to a moral certainty, and must exclude every other reasonable hypothesis than that of the guilt of the accused. Circumstances, however strong they may be, ought never to coerce the mind of the jury to a conclusion of guilt if they can be reconciled with the theory that one other than the defendant has committed the crime, or that no crime has been committed at all.
Gregory, supra, 341 Ark. 243, 15 S.W.3d 690 (2000). In the words of Justice George Rose Smith, “The issue is simple: Was the evidence so evenly balanced that the jury had to resort to guesswork in finding that the crime was committed by [appellant] rather than by someone else?” Surridge v. State, 279 Ark. 183, 650 S.W.2d 561 (1983).
I do not believe that there is sufficient evidence to prove Howard killed Shannon and that he tried to kill Trevor. There is simply too much guesswork and speculation involved. I further believe the jury clearly erred in not finding that a reasonable hypothesis existed that a third party killed Shannon, particularly in light of the unknown fingerprints on the picture frames under which Shannon’s body was found. Clearly, the fact that sufficient evidence exists to convict Howard for the murder of Brian does not lead inescapably to a conclusion that he also killed Shannon and strangled Trevor or provide sufficient evidence for those offenses.
Because I would affirm Howard’s conviction on Brian and reverse his conviction for the murder of Shannon and attempted murder of Trevor, Howard’s sentence becomes problematic. At the sentencing phase, the jury found four aggravating circumstances to warrant the death penalty:
In the commission of the capital murder, Tim Howard knowingly created a great risk of death to a person other than the victim; In the commission of the capital murder, Tim Howard knowingly caused the death of Brian Day & Shannon Day in the same criminal episode;
The capital murder was committed for pecuniary gain;
The capital murder was committed in an especially cruel and depraved manner.
No mitigating circumstances were found. All four aggravating circumstances related to the joint murders of Brian and Shannon. Because the two murders were intertwined, and no effort was made to treat the two convictions separately for sentencing purposes, I would remand for resentencing solely on the capital murder of Brian Day.