A divided Arkansas Supreme Court upheld two murder convictions Thursday in separate cases out of Pulaski County.
In a 4-3 decision, the high court declined to reopen the case of Terrick Nooner, who was sentenced to death for the 1993 killing of a man in a Little Rock laundromat. The court, in a 5-2 ruling, also denied Donnie Maiden's request to overturn his 2013 capital murder conviction and life sentence.
Nooner's attorney, Josh Lee, had asked the court to reopen Nooner's case and order resentencing because, he said, the jury incorrectly filled out its verdict form. In oral arguments in February, Lee told the court that it had previously overturned death-penalty cases where similar errors were made on jury forms, namely when jurors indicated that they did not receive mitigating evidence to weigh along with aggravating evidence.
Lee's appeal relied on a similar Supreme Court case, Frank Williams Jr. v. State. But Justice Donald Corbin, writing for the majority, said that the Williams case had been decided incorrectly, was inconsistent with other rulings in similar cases and that the court this week "overruled" it "in its entirety."
"Nooner has not demonstrated that error occurred at his trial with respect to the jury's completion of the special-verdict forms on mitigating evidence" and "he cannot demonstrate that a breakdown in the appellate process occurred during this court's direct review of his conviction and death sentence," Corbin wrote in the 31-page opinion.
Justices Courtney Hudson Goodson, Karen Baker and Cliff Hoofman joined Corbin in the majority. Chief Justice Jim Hannah and Justices Paul Danielson and Jo Hart dissented.
Nooner was convicted of capital murder in the shooting death of Scot Stobaugh, who was shot seven times and robbed inside the Fun Wash laundry at 4206 W. Markham St. in Little Rock. Nooner's accomplice, Robert Rockett, pleaded guilty to first-degree murder in Stobaugh's death and was sentenced to 65 years in prison.
Nooner's attorneys filed several state and federal appeals and in December 2012 asked the high court to reopen the case.
In a separate, penalty-phase hearing for Nooner after his conviction, the jury reported two items of aggravating circumstances: that Nooner had previously committed a felony involving the use or the threat of violence and that he committed the murder "for pecuniary gain," according to court filings.
In his appeal, Nooner's attorney argued that the jury found that there was no evidence of mitigating circumstances, according to their verdict forms, which warranted reopening the case. The jury should have marked a section that said evidence was presented, but that it had determined that a mitigating circumstance did not exist, his attorney claimed.
In the dissenting opinion, Hannah wrote that there was no evidence that the jury ever considered the mitigating circumstances. He wrote that in Nooner's case, as in Williams', that the way the jury filled out the verdict form "demonstrates that the jury eliminated from its consideration all evidence presented of mitigating circumstances and sentenced Nooner to death based solely on aggravating circumstances."
"This is reversible error. ... This court should recall the mandate and reopen Nooner's direct appeal, reverse Nooner's death sentence and order resentencing," Hannah wrote in the 12-page dissent.
Attorney General Dustin McDaniel said in a statement that he appreciated the court's "thoughtful opinion in this case."
"We are right now evaluating whether this decision would be beneficial to the state's position in other death penalty cases, such as Frank Williams's," McDaniel said.
Lee, a federal public defender who represented Nooner in the appeal, declined to comment on the opinion.
In Maiden's case, the high court ruled that the trial court did not abuse its discretion by not allowing the defense to challenge two of the state's witnesses -- Tim Bradley and co-defendant Trenell Emerson -- about their truthfulness. Hannah wrote for the majority that it was within Circuit Judge Wendell Griffin's discretion to admit or exclude the evidence and that no error was made.
Maiden was sentenced to life in prison after he was convicted in the 2011 shooting death of 22-year-old Kylaus Williams. Emerson testified that he saw Maiden kill Williams, despite previously telling police that he didn't witness the shooting. At trial, the state revealed that shortly before the trial's start, it had received a statement from Emerson claiming he had witnessed the killing, and that it had failed to turn it over to the defense.
Hannah wrote that the prosecution's failure to turn over Emerson's statement was "cured" by the judge, who provided additional instructions to the jury about the error and allowed the defense to question him about the discrepancy.
Hannah was joined by Corbin, Danielson, Goodson and Hoofman in the majority. Hart and Baker dissented.
Hart wrote in the dissent that Griffen should have declared a mistrial when it was discovered that prosecutors did not turn over the statement. In the defense's opening statement, Maiden's attorney repeatedly told the jury members that they would not hear from anyone claiming to have witnessed the killing. When the prosecutors presented the contradictory testimony that had been withheld, it "destroyed any credibility Maiden's defense team had with the jury."
"Our adversarial system of justice simply cannot tolerate the tactics that the state employed in this case," Hart wrote.
Lee Short, who represented Maiden in the appeal, did not return a phone message seeking comment Thursday.
Aaron Sadler, a spokesman for the attorney general's office, said in an email, "We are pleased with the court's decision."
Metro on 06/27/2014