dissenting. It is with great reluctance that I must dissent and argue that a jury verdict should be overturned. However, I am compelled to do so because the jury was left to speculation and conjecture which may not support a conviction. The demands of due process are not satisfied by suspicion, speculation, and conjecture.
This case was based entirely upon circumstantial evidence. Circumstantial evidence can certainly constitute substantial evidence and support a jury’s verdict. However, requirements must be met that have not been discussed by the majority. Justice Butler in the case of Bowie v. State, 185 Ark. 834, 49 S.W.2d 1049 (1932), stated that 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. This has always been the standard, and these words have been cited since 1932, and were last cited in 2000. However, it appears that seventy years of precedent is being abandoned. Rather than being presented with substantial evidence or, in other words, evidence forceful enough to compel a conclusion Howard committed the murders and the assault, the jury received credible evidence of at least two reasonable hypotheses and was left to speculate. Neither hypothesis was supported by substantial evidence.
The jury received evidence that tended to incriminate Howard and evidence that tended to incriminate others with whom Brian was making a drug deal. Evidence was presented that Brian was deeply in debt, that he and his wife feared for their lives, that he had set up a drug deal that took place about the time of the murders at the place where his body was found, that a substantial sum of money was involved, that he was to receive- something that required a truck to haul, and that in the days before his murder he had been in confrontation with unidentified persons, who were apparently the persons he met the night of his murder. The jury was also given evidence argued to show that Howard committed the murders and assault, characterized by the majority as the most incriminating because it is “inappropriate and unexplainable.” There is no doubt that the evidence offered made Howard a suspect. The problem is the evidence is not sufficient to constitute substantial evidence under any circumstantial-evidence standard that has ever been stated by this court. Stating that it meets the standard does not make it so.
The jury was placed in an untenable position, and abandoned to either speculate or come to no conclusion. Not surprisingly under the facts they were presented, they convicted Howard. The jury’s verdict is not based upon proof of guilt beyond a reasonable doubt. It is not supported by substantial evidence. Howard has been convicted of two murders and sentenced to death twice. Howard was also convicted of attempted capital murder and sentenced thirty years plus a $15,000.00 fine. However, Howard has also been denied fundamental fairness and due process rights guaranteed him under both the United States and the Arkansas Constitutions.
Facts
The motive for the murders and assault offered by the State was money Howard was expecting from the drug deal, or that Shannon was pregnant by Howard. The persons with whom Brian met on the night of the murders had a great deal more to gain from the murders and assault, either by making him an example of what happens when a person does not meet his obligations, or in gaining Brian’s “white” and keeping their “green” or “stuff.”
The record fails to show Howard even knew Shannon thought she might be pregnant by Howard. The record also fails to show that Brian owed Howard money or that Howard showed up with a substantial sum after the murders. The few hundred dollars Jennifer Qualls testified to is hardly the sum Howard was expecting. She specifically testified that he did not have a big “wad” of money after the murders.
What the record does reveal is that Brian and Howard had been involved in drug deals for some time. It also shows that deals had been consummated previously at the Howard farm, which was a suitable secluded location for such endeavors. These deals were not the sale of drugs to users, but rather sales between suppliers.
The record also shows that Brian owed other people money, and that people were mad. He was trying to gather up cash from his users or from anywhere he could get it. Shannon told Kimberly Howard a day or two before her death that Brian owed “Chicken” money, that Chicken had been out to the house three or four times looking for Brian, and that Chicken was mad. Shannon told Kimberly further that “she did not know what Brian was doing with the money but they were going to kill him.” Shannon also told a friend that if anything happened to her it would be because of Chicken. Chicken was identified as one of Brian’s suppliers. Harvey Hope testified that about a week before the murders, he was at Brian’s house and that a white man was there who was driving a white car. Hope testified further that Brian said to the man, “I don’t have that kind of money.”
Penny Granger testified that Shannon feared for their safety because “Brian owed everybody money and Brian is in over his head.” Vicki Howard also testified similarly. Shannon also told Granger that Brian was buying from Pokey Booth, “making dope with Mike May,” and getting drugs from Richard McClanahan. Shannon told Granger further that she was worried when he did not come back from McClanahan’s place. Granger also testified that Shannon told her that Brian was digging holes in the back yard and pouring concrete over things. Upon being told of his death, Brian’s father told police, “I knew this was going to happen.”
Vicki Howard testified that she knew Brian had a deal going down that night and that Howard did not know who he was dealing with. Further, events of the days before the murders show that a deal was to be made at the Howard farm on the night of the murders. There was testimony that in the past, Howard and Brian had done their deals together, but this time Brian had set up his own deal, and although Howard was helping him indirectly, Howard did not know who Brian was dealing with. Granger testified that Shannon told her she and Brian had been to Oklahoma to view drug labs. Phillip Bush testified that a month to three weeks before the murders, he had introduced Brian to a “gentleman” who was looking to trade some “green for some white,” which Bush understood to mean marijuana for methamphetamines. Bush further testified that the man was driving a late 80s red Ford pick-up, and that the man returned for another meeting about two weeks before the murders. According to the testimony of Nicole Smith, on the Tuesday before the murders on Friday, she and her mother drove past the Day home, and there was a red Chevrolet pick-up in the drive. She testified that there were two Caucasian men there, and it appeared Brian was in an argument with one of them because there was gesturing and loud talking or hollering.
In the very early hours of Friday morning, Howard met Vicki at McDonald’s. She testified that Howard suggested they get a motel room in Texarkana, which they agreed to do. Shortly thereafter, they met at the motel. At this time, Howard was driving the U-Haul truck that was later found at the Howard farm with Brian’s body in it. Howard warned Vicki not to tell anyone about the U-Haul because “it would get me killed.” The U-Haul was to be used in the deal that night at the Howard farm.
Howard and Vicki then drove to the Howard farm where Howard went out to the shack where they did their deals and picked something up off the ground. Howard then returned to Kimberly’s in Ashdown where he slept on and off that day. At one point Brian came by but did not wake him. The facts are sketchy between 4:00 p.m. and the next morning at 7:30 a.m. when Howard returned. Howard did appear there at about 3:00 a.m. with Shannon and Trevor. And the next day he was in the possession of Shannon’s purse.
Brian’s body was discovered about 10:00 a.m. Saturday morning Shannon’s body and Trevor were discovered several hours later after Brian’s body had been removed to the morgue. It is unclear exactly what time they were discovered. However, it is clear that several hours had passed since they were with Howard at Kimberly’s apartment.
The evidence does put someone at the Howard farm with Brian the night he was killed. It does not put Howard there. It is unclear where he was. Brian was going to do a drug deal with someone new. The evidence infers it was one or more of the persons Brian had been meeting in the days before the deal. Brian was found dead in the U-Haul that was there for the deal. The evidence puts Howard with Shannon and Trevor at 3:00 a.m. at Kimberly’s, and the inference is tht they left with him sometime after that. According to Dr. Kokes, she was murdered sometime between 5:30 a.m. and 1:30 p.m.
There is abundant evidence that all of these people were nervous about something that has never been revealed. After the murders were discovered, Jennifer Qualls met with police at a park because she did not want to go to the police station. According to the officer’s testimony, she was shaking so badly that someone had to light her cigarette for her. She did not tell them that she was afraid of Howard, but that she did not want to be seen by anyone from Ashdown, and that she was scared “because a lot of things were going on.” That might be argued to infer she was frightened of Howard. The stronger inference is that there was someone else she feared. Prior to the murders, Howard was concerned about being seen, and cautioned Vicki not to talk about the U-Haul. Howard changed cars at least five times on the Friday before the murders, and was picked up in various locations by girlfriends.
In short, the facts are far from reaching substantial evidence. At best, two reasonable hypotheses are raised and neither was proven sufficiently to support a jury verdict. That is not to say this case had to be tried in this posture. Doubtless, further investigation would have helped. Nonetheless, it was tried as it was, and we must review the record presented.
The Evidence Relied on by the State
A brief discussion of the evidence relied upon by the State is required before I go further. According to the record, Shannon was last seen alive with Howard. On this record that is true, and provides some inference of proximity and time. However, there is nothing in the record about the individual or individuals who met with Brian at the Howard farm about this same time and who likely had been at the Day home on several occasions prior to that night.
Howard had and disposed of Shannon’s purse. That raises an inference similar to the one above. His disposal could mean he wanted to dispose of evidence that he had murdered her or that he did not want to be caught with the purse given that someone else had killed her. There was also the money Howard was supposed to be expecting. The evidence was that Howard was to receive $4,500.00 from the deal. Qualls testified Howard gave her $200.00 the next day after the murder, and that he did put some money back in his pocket, but that he did not have a wad of money. It raises but a weak inference if any.
The boots offered into evidence were found several feet from the side of the road and in an open area. Blood on the top of one boot was identified as belonging to Brian. There was testimony that the boots were similar to Howard’s boots, testimony that Howard might have been wearing his boots on Friday, and that “Negroid” hairs were found in the boots that were microscopically similar to Howard’s. Other Caucasian hairs were found in the boots that were never identified. Most significantly, the boots were found at the side of the road at 8:45 a.m. by a man who testified that there were dew prints of feet in the grass showing someone had walked out of the woods, set the boots out in the open, and then returned to the woods. When the man walked by at 8:30 a.m., the boots were not there. It was on his return trip that they appeared. In spite of this evidence, the State argued Howard threw the boots from a car. The boots were found side by side consistent with having been placed there. If the State’s argument were correct, this would have been a pretty remarkable throw. Also, by 7:30 a.m., an hour and forty-five minutes before the boots appeared, Howard was in town. Also, Howard was wearing the same clothing on Saturday morning as he had been wearing the night before. There was no blood on them. If he had worn the boots, the blood would have been on his pants leg. Dr. Kokes testified that the murder of Brian would have transferred blood, but none was found on Howard’s clothes. Too, Howard showed no bruises or other marks, and the evidence was Brian was a fellow who did not back down. Also, Shannon showed defensive marks.
Fingerprints were also relied upon. Prints found on the door to the U-Haul were introduced. That was of no significance. There was abundant testimony that Howard was driving the truck the day before. Fingerprints from a Mountain Dew bottle in the Day home were also introduced. Again, they were of little significance. Howard was a frequent guest in the home. More significant, and still unexplained, were the unidentified fingerprints on the frames that sat atop Shannon’s body.
There was evidence that Howard had a .38 caliber handgun. Brian was shot with a .38. No doubt that raises an inference, but the question is how strong an inference given there is probably not a more common caliber than .38. The handcuffs introduced were not similar to the ones found on Brian and Shannon. There is also the tool box purchase. No assertion of relevance is made by the majority. If Howard had the “green” Brian was trading for, he might have wanted the tool box to move it. That would be significant evidence. But there is no such evidence. It was too small to transport a body, and why would he have needed it? He had the U-Haul, which a person of average intelligence would not have left at his own farm with a body in the back of it. One also wonders who called the sheriff to report a U-Haul dripping blood on a remote farm.
I do not dispute this evidence made Howard a proper suspect. I dispute, however, that this constitutes substantial evidence. This case need not have been presented as it was. It appears that once Howard was a suspect, the investigation narrowed and resulted in its present posture. In the words of Hays McWhirter of the Arkansas State Police, “Yes, I continued to work up the case. We continued from the different leads and information we were getting we continued to work to see if anybody else was involved with Mr. Howard.”
Due Process
The majority holds there was both direct and circumstantial evidence linking Howard to the murders. Circumstantial evidence is evidence of circumstances from which a fact may be inferred. Wilson v. State, 277 Ark. 43, 639 S.W.2d 45 (1982); Williams v. State, 258 Ark. 207, 523 S.W.2d 377 (1975). Direct evidence is evidence that proves a fact without resort to inference, when, for example, it is proved by witnesses who testify to what they saw, heard, or experienced. Fingerprints, which are at issue in this case are circumstantial evidence. Brown v. State, 310 Ark. 427, 837 S.W.2d 457 (1992). The blood found on the boots alleged to belong to Howard is also circumstantial evidence. Hogan v. State, 281 Ark. 250, 663 S.W.2d 726 (1984).
I am unable to identify any direct evidence in this case, and the majority fails to identify any. The testimony of witnesses involves only the majority’s asserted “inappropriate and unexplained” behavior. There is no testimony placing Howard at the murder scenes. This case involves entirely circumstantial evidence.
The majority’s primary error is in their analysis with regard to circumstantial evidence. Although the existence of a fact may be proved by circumstantial as well as by direct evidence, the circumstantial evidence must be sufficient to lead to the inference. Yancey v. State, 345 Ark. 103, 44 S.W.3d 315 (2001). Where circumstantial evidence is relied upon to establish a fact, the circumstances proven must lead to the conclusion with reasonable certainty and must be of such probative force as to create the basis for a legal inference and not mere suspicion. Id. There is a great deal of circumstantial evidence that Howard was at the least indirectly involved in the drug deal with Brian on the night of the murders, and that Howard’s whereabouts that night are unclear. That is suspicious but not more.
The State argues that the evidence infers Howard’s guilt to the exclusion of all other reasonable hypotheses. He was viable suspect. However, the evidence taken in total shows a substantial drug deal was planned for the night of the murder, and that it was set to take place in the woods on Howard’s farm. The evidence also shows that Brian was in serious financial trouble with one or more persons, and that they were angry. Shannon feared for their lives. Others feared for their lives. The evidence shows that Brian was trying to raise money to appease.someone. It also shows that Howard and Brian prepared for the deal. The truck was obtained, and the site of the deal was visited beforehand. The person or persons making the deal were there at or near the time of the murder, and they have never been identified.
For a jury verdict to stand in a criminal case, there must be substantial evidence to support it. Hale v. State, 343 Ark. 62, 31 S.W.3d 850 (2000). Substantial evidence is evidence forceful enough to compel a conclusion one way or the oilier without resort to suspicion or conjecture. Atkinson v. State, 347 Ark. 336, 64 S.W.3d 259 (2002). The majority concludes that the most incriminating evidence in this case was Howard’s “inappropriate and unexplainable” behavior. This appears to mean his conduct was suspicious. That the majority so concludes is deducible not only from the use of “inappropriate and unexplainable” in the opinion, but is also equally apparent from the analysis. Still, it is not clear what is meant by “inappropriate.” The word generally means “unsuitable.” Webster’s Third New International Dictionary 1140 (1993). What is meant by “unexplainable,” is also unclear; however, the term is occasionally used in the context of circumstantial evidence cases where the circumstantial evidence is unexplainable except in connection with the crime charged. Harshaw v. State, 275 Ark. 481, 631 S'.W.2d 300 (1982). Clearly that cannot be the meaning intended in this case where the evidence is susceptible of a number of different interpretations. This court in Ayers v. State, 247 Ark. 174, 177-178, 444 S.W.2d 695 (1969), quoted 20 Am. Jur. Circumstantial Evidence § 1217 where the following is found:
Where circumstantial evidence is relied upon in a criminal prosecution, proof of a few facts or a multitude of facts all consistent with the supposition of guilt is not sufficient to warrant a verdict of guilty.
No matter how suspicious, inappropriate, or unexplainable the behavior may be, it will not support a jury verdict. This court has stated more than once with regard to suspicion and circumstantial evidence and its inferences that where inferences are relied upon, they should point to guilt so clearly that any other conclusion would be insufficient. Hodge v. State, 303 Ark. 375, 797 S.W.2d 432 (1990); Ravellette v. State, 264 Ark. 344, 571 S.W.2d 433 (1978). This court went on in these two opinions to state that this is so regardless of how suspicious the circumstances are. Hodges, supra; Ravellette, supra. Almost fifty years ago, in a time argued by some to be far less enlightened than our own, this court stated quite bluntly:
The rule is forcibly stated by the Supreme Court of Virginia in the cast of Dotson v. Commonwealth, 171 Va. 514, 199 S.E. 471, at page 473, in this language: “From the facts shown, no reasonable inference of guilt can be deduced which will be equivalent to proof of guilt beyond a reasonable doubt which is always necessary. Where inferences are relied upon to establish guilt, they must point to guilt so clearly that any other conclusion would be inconsistent therewith. This is true no matter how suspicious circumstances may be.”
Williams v. State, 222 Ark. 458, 463, 261 S.W.2d 263 (1953). See also, Bowie, supra. Where the evidence does not meet the required standards, the jury verdict will be overturned. Phillips v. State, 344 Ark. 453, 40 S.W.3d 778 (2001). Where the evidence offered only raises suspicion and the jury would thereby be left to decide based upon speculation and conjecture, then the directed verdict motion should be granted. Nichols v. State, 280 Ark. 173, 655 S.W.2d 450 (1983). Conjecture and speculation, however plausible, can not be permitted to supply the place of proof. First Electric Cooperative Corp. v. Pinson, 277 Ark. 424, 642 S.W.2d 301 (1982); Kapp v. Sullivan Chevrolet Company, 234 Ark. 395, 353 S.W.2d 5 (1962); Russell v. St. Louis S.W. Ry. Co., 113 Ark. 353, 168 S.W. 135 (1914). Where a jury verdict is the result of chance and surmise, as in this case, the decision will be subject to a habeas corpus review in federal court. A conviction based upon insufficient evidence violates due process under the Fourteenth Amendment. Jackson v. Virginia, 443 U.S. 307 (1979).
Just last year, this court stated in a case relying on circumstantial evidence, “Upon review this court must determine whether the jury resorted to speculation and conjecture in reaching its verdict.” Ross v. State, 346 Ark. 225, 57 S.W.3d 152 (2001). See also, Fudge v. State, 341 Ark. 759, 20 S.W.3d 315 (2000). This is not surprising because obviously guilt in a criminal case must be based upon proof beyond a reasonable doubt. Long ago in Williams v. State, 222 Ark. 458, 463, 261 S.W.2d 263 (1953), we discussed that any inference of guilt deduced from circumstances must be equivalent to proof of guilt beyond a reasonable doubt, which is always necessary. Williams, supra. See also Jackson, 443 U.S. at 317-318. Where such inferences are relied upon, they must point to guilt so clearly that any other conclusion would be insufficient. Hodge, supra; Ravellette supra.
Two primary errors were committed. The first was committed when the trial court denied the motion for a directed verdict and submitted the case to the jury because it is only when the evidence is substantial, rises above suspicion, and is properly connected, and the jury is therefore not left to speculation and conjecture, that it may be submitted to the jury to determine whether the evidence excludes every other reasonable hypothesis. McDole v. State, 339 Ark. 391, 6 S.W.3d 74 (1999). The jury verdict should be overturned by this court on this basis. The second error is made by the majority on review of the jury verdict, which they must review to determine whether the jury resorted to speculation and conjecture in reaching its verdict. This analysis is nowhere in the majority opinion.
After reading the briefs, abstract, and record, the majority’s opinion seems rather meager. It stretches and reaches to assert unsupported conclusions. In large part this is so because in the analysis, the lives of Howard, Brian, Shannon, and Trevor Day are deftly lifted and separated from a virtual cesspool of crime teeming with any number of vermin who quite likely had both cause and motive to harm Shannon and Brian, as well as Howard and others. However, in this way, Howard and the Days can be viewed in isolation, and therefore the facts are not too difficult. However, if this case is viewed as it ought to be, the record we have received is hopelessly complicated, and to dive into the facts of all the witnesses is to nearly drown in a nether world of any number of threats, of drug dealers dealing one drug for another, of trips to other states to view other drug operations, of mysterious unidentified out-of-state drug dealers, of such fear among witnesses that they are careful not to be seen by anyone talking to the police. The most reasonable hypothesis that the evidence will support is that Brian was trying to do a deal with those to whom he was deeply indebted, and it went bad. He and his family may well have been made examples —• examples that might have even convinced Howard to keep quiet. We do not know who those people were, but there is evidence that they were there that night when Brian was murdered. This case fails because of a lack of proof offered by the prosecutor. Howard may well be the murderer, but the evidence presented is insufficient.
This is the court of last resort for many issues. Fundamental due process issues have been presented to us. As we quoted in Bowden v. State, 256 Ark. 820, 822, 510 S.W.2d 879 (1974), this . . . inescapably imposes upon this court an exercise of judgment upon the whole course of the proceedings in order to ascertain whether they offend those canons of decency and fairness which express the notions of justice of English speaking peoples even toward those charged with the most heinous offenses.” Malinski v. New York, 324 U.S. 401 (1945), cited in Rochin v. California, 342 U.S. 165 (1952).” The jury verdict should not stand.
Motion to Suppress
This case could also be reversed and remanded for a new trial based upon the trial court’s error in denying the motion to suppress certain testimony by Penny Granger. The majority recites the events at trial involving the admission of the testimony of Penny Granger regarding a statement that Shannon told her that she might be pregnant by Howard. The majority then states the law that admission of evidence showing motive is left to the discretion of the trial judge, and then fails to provide any analysis, or even a statement as to any conclusion reached. The majority just passes on the issue. The trial court erred when it denied the motion to suppress.
Penny Granger testified that she was present when Shannon performed an at-home urine test for pregnancy. She further testified that upon seeing the “stick” was a color indicating pregnancy, she told Penny, “Oh, no, Brian’s going to be mad.” Granger testified that she asked Shannon why Brian would be mad, and she purportedly told Granger that there was a “possibility that it could be Tim Howard’s baby.”
There was no evidence that Howard ever knew Shannon thought she might be pregnant with his child. The autopsy failed to show any evidence of pregnancy. Nonetheless, the majority finds no problem with allowing the evidence to be admitted to show why Howard might have killed Shannon. This is mere speculation. There is no evidence showing that Howard possessed any knowledge of this and thereby could have killed her for this reason. It is rank speculation.
This court has declared for over seventy years that inferences may not be drawn from inferences, because that would “carry the deduction into the realm of speculation and conjecture.” Moran v. State, 179 Ark. 3, 7, 13 S.W. 828 (1929). See also, Yancey, supra. Here, two inferences are required. We must first infer that Howard knew Shannon believed she was pregnant by Howard, and then infer he killed her because of that knowledge. Such a deduction is not allowable under the rules of evidence. Yancey, supra.
Nor could the evidence withstand an analysis under relevance. Relevant evidence is defined as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.” Ark. R. Evid. 401. McDole, supra. The fact that is of consequence is who murdered Shannon. The evidence is that Granger knew Shannon thought Howard might have gotten her pregnant. If the evidence was that Granger told Howard that Shannon thought she was pregnant with his child, then the evidence might make it more rather than less probable that Howard killed Shannon because he thought she was pregnant with his child. It would be evidence of motive. There is no evidence Howard was aware of Shannon’s belief. Without some evidence showing Howard possessed knowledge that Shannon believed she was pregnant by him, the evidence is not relevant and simply has no probative value to the fact of consequence.
Even if relevance is ignored for the sake of argument, the probative value of the evidence is very weak when compared to the prejudicial impact. Ark. R. Evid. 403. The evidence at most raises an inference that if Howard knew Shannon believed she might be pregnant by him, it could be a motive to kill her. On the other hand, Howard, an African-American, was tried for the capital murder of a white woman. Then, by Granger’s testimony, the jury is told that he might have gotten her pregnant as well. The obvious potential prejudice is so apparent it needs no discussion. Additionally, there is prejudice in the likely result that the jury may well have believed Howard may also have killed the fetus. And yet despite all this, the majority finds no error at all in denying the motion to suppress.
Closing Argument in the Penalty Phase
In arguing for the death penalty, the prosecutor entered the realm of fantasy, and according to the majority, that is not reversible error. It is hard to imagine a more sickening image than the one painted by the State’s attorney in closing argument when he invited the jury to visualize a helpless mother, bound, and compelled to watch as her infant son is hanged by an extension cord before her very eyes. If this were true, it would be helpful to the jury in deciding punishment, but unfortunately, it is the product of the fantasy of the State’s attorney. The majority holds that this was “plausible,” or, in other words, it was not impossible that it might have occurred. Plausibility is not the standard. It is every plausible inference that may be argued, not every possible course of events. While there is no question Trevor was strangled, there are no facts which would support any inference that he was hanged, or that he was hanged before his mother’s eyes.
The closing argument was based upon pure fiction. There is no basis in the record. A prosecutor acts in a quasi-judicial capacity, and it is the prosecutor’s duty to seek a fair and impartial trial. Leaks v. State, 339 Ark. 348, 5 S.W.3d 448 (1999). As the United State Supreme Court noted in Berger v. United States, 295 U.S. 78 (1935), the prosecutor is not the representative of an ordinary party, but of a sovereignty whose obligation is to govern impartially. This court’s holding in Holder v. State, 58 Ark. 473, 25 S.W. 279 (1894), has been cited often, last in Leaks, supra., wherein this court stated:
Nothing should tempt him to appeal to prejudices, to pervert the testimony, or make statements to the jury which, whether true or not, have not been proved. The desire for success should never induce him to endeavor to obtain a verdict by arguments based on anything except the evidence in the case and the conclusions legitimately deducible from the law applicable to the same. To convict and punish a person through the influence of prejudice and caprice is as pernicious in its consequences as the escape of a guilty man. The forms of law should never be prostituted to such a purpose.
Leak, supra, 339 Ark. at 358.
The majority holds that the argument “Shannon Day saw her child hanging from an extension cord before she died” is a fair inference from the evidence. I must ask from what evidence this inference arises? The child was not even found in the same room as Shannon’s body. There was no evidence to show what occurred in that home. There was only evidence that the child was strangled, not that he was hanged. And there was no evidence to show whether Shannon was assaulted first, or whether the child was assaulted first, or, for that matter, where within the home the assaults occurred. The State’s attorney was not going beyond the record to argue evidence that he thought should have been admitted. Instead, he testified to fictional facts. This is a serious problem that calls the very legitimacy of the trial into question.
The State’s attorney did not argue facts or inferences from facts in the case. He introduced facts by way of argument. By so doing, the State’s attorney deprived Howard of his right of cross-examination of the witness, the State’s attorney. LaFave, Criminal Procedure § 24.7(e), at 555 (1999). This was not evidence. It was pure speculation and conjecture. The jury heard it and considered it in deciding on the death penalty. The sentence is subject to attack on the basis that death was imposed in an arbitrary and capricious manner. In State v. Robbins, 339 Ark. 379, 5 S .W.3d 51 (1999), we stated that we recognized that there must be adequate power in the judiciary to check the arbitrary and capricious imposition of a death sentence, noting that in Collins v. State, 261 Ark. 195, 548 S.W.2d 106 (1977), we held that those safeguards existed in Arkansas and stated:
The Arkansas judiciary is vested with broad powers to check the arbitrary, capricious, wanton or freakish imposition of the death sentence by a jury. Those powers exist at both trial and appellate levels.
Robbins, 339 Ark. at 348. This court can not say that the death penalty was imposed based upon the evidence in this case. We have a duty to guard against precisely what occurred in this case.
No objection was made. That is of no moment. We anticipated this very situation in Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980), when we stated:
A third exception is a mere possibility, for it has not yet occurred in any case. That relates to the trial court’s duty to intervene, without an objection, and correct a serious error either by an admonition to the jury or by ordering a mistrial. We implied in Wilson p. State, 126 Ark. 354, 190 S.W. 441 (1916), that no objection is necessary if the trial court fails to control a prosecutor’s closing argument and allows him to go too far: “Appellant can not predicate error upon the failure of the court to make a ruling that he did not at the time ask the court to make, unless the remarks were so flagrant and so highly prejudicial in character as to make it the duty of the court on its own motion to have instructed the jury not to consider the same. See Kansas City So. Ry. Co. v. Murphy, 74 Ark. 256 [85 S.W. 428 (1905)]; Harding v. State, 94 Ark. 65 [126 S.W. 90 (1910)].”
This case presents precisely this situation. The argument was beyond flagrant. Floward’s right to a fair and impartial trial was fatally compromised. This case should be reversed and remanded on this basis for resentencing.
I also think it worthy of note that by out per curiam dated July 9, 2001, Ark. R. App. P.—Crim. is being amended for cases where the death penalty is imposed on or after August 1, 2001. Thereby, the issues to be reviewed by this court are expanded to include:
iv) whether the trial court failed in its obligation to intervene without objection to correct a serious error by admonition or declaring a mistrial;
vii) whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor.
The Handcuffs
Finally, I must dissent on the majority’s holding that admission of the handcuffs was not an abuse of discretion. The handcuffs found on Brian and Shannon Day’s bodies were simply metal handcuffs. The pair of handcuffs Jennifer Qualls testified that she saw in the possession of Howard were fur covered and intended for a sexual purpose. Based upon information from Quail, the State went to the store where Howard was believed to have acquired his and purchased a pair thought to be similar. The purchased pair had fur on them.
The State moved to admit these purchased hand cuffs and they were admitted over objection. There was no evidence linking Howard to the handcuffs found on Brian and Shannon. There was no evidence Howard possessed two pair. The handcuffs on Shannon and Brian had neither fur nor any glue residue. In short there was no similarity beyond the fact all three pairs of handcuffs were handcuffs of one form or another.
Because handcuffs were found on Shannon and Brian, an argument may be made that Howard having handcuffs in his posssession prior the murders is relevant as having some tendency to make it more likely Howard was connected to their murders. Ark. R. Evid. 401. However, under Ark. R. Evid. 403, the court must weigh the probative value against the prejudicial harm. Here the likelihood the handcuffs on the victims came from Howard is lessened by the fact they are so dissimilar to those Qualls testified to. Further, the pair Qualls testified to were not the ones admitted, but rather a pair purchased that were thought to be similar. This lessens the relevance and heightens possible prejudice even more. In the end, the probative value is slight and the potential harm is great. Under Rule 403 the handcuffs should have been excluded. On this basis, this case should be reversed and remanded for a new trial.
The majority’s states the law on admission of evidence and then simply states a conclusion that there was no abuse of discretion in admitting the handcuffs. There is no analysis of why the handcuffs were or were not properly admitted.
For the foregoing reasons, I respectfully dissent.
SUPPLEMENTAL DISSENTING OPINION ON DENIAL OF REHEARING
June 27, 2002