FROM THE GARLAND COUNTY CIRCUIT COURT [NO. 26CR-15-5]
HONORABLE JOHN HOMER WRIGHT, JUDGE
Willard Proctor, Jr., P.A., by: Willard Proctor, Jr., for
Rutledge, Att'y Gen., by: Rebecca Kane, Ass't
Att'y Gen., for appellee.
Garland County jury convicted appellant Alex Wade of
second-degree murder. On appeal, Wade contends that
sufficient evidence did not support his conviction and that
the circuit court abused its discretion by excluding the
victim's toxicology report. We affirm.
case stems from Wade fatally shooting James Holmes. The night
before the incident, Wade was visiting a friend, Joe
Dickerson, in Hot Springs, Arkansas, and the two traveled to
a party in Malvern, Arkansas. Dickerson drove Wade, Holmes,
Brandon Irving, and Marcus Calhoun to a party. This was the
first time Wade had met Holmes. Dickerson became so
intoxicated that he was asked to leave the party. Dickerson
left in another car, and Wade, Holmes, Calhoun, and two other
young men left in Dickerson's car a few minutes later. As
they drove away from the party, Holmes fired numerous shots
into the air from the backseat of the car.
Wade and the other passengers in Dickerson's car arrived
in Hot Springs, Wade kicked two of the men out of the car,
leaving him, Calhoun and Holmes in the car. Shortly
thereafter, around 4:00 a.m., Wade struck a curb, blowing out
the right front tire. He continued to drive until the car was
inoperable, which required him to stop on the side of the
road. Holmes called his cousin Jacob Nooner to pick him up.
Shortly after Nooner had picked him and Calhoun up, Holmes
realized that he had left a bag of marijuana in
Dickerson's car, so Nooner turned the car around retrieve
it. As Holmes was getting out of the car, Wade walked over
and met him in front of Nooner's car. The two men argued
briefly before Holmes walked past Wade to the rear passenger
door of Dickerson's car. At this time, Wade walked to the
rear driver's side door of Nooner's car, where he
opened the door and grabbed a gun that was sitting on one of
the passenger's lap. Wade then walked back to the front
of the car and pointed the gun at Holmes; Wade then shot him
in the abdomen.
admitted that he had shot and killed the victim; however, he
alleged that he did so in self-defense. Wade testified that
he shot Holmes because he believed Holmes and the other men
had come back to harm him. He alleged that Holmes raised his
shirt to show Wade that he was armed as he walked past him to
Dickerson's car. When Wade fired the gun, he thought
Holmes was reaching for a gun; yet Wade admitted that he
never saw a gun in Holmes's hand. The jury found Wade
guilty of second-degree murder and sentenced him to twenty
years' imprisonment with a consecutive term of twelve
years' imprisonment for a firearm enhancement. Wade
timely filed his notice of appeal.
appeal, a motion for directed verdict is treated as a
challenge to the sufficiency of the evidence. See
Reynolds v. State, 2016 Ark. 214, at 3, 492 S.W.3d 491,
494. This court views the evidence in the light most
favorable to the State and affirms if there is substantial
evidence to support the verdict. Id. Substantial
evidence is that which is of sufficient force and character
that it will, with reasonable certainty, compel a conclusion
one way or the other, without resorting to speculation or
conjecture. Id. This court does not weigh the
evidence presented at trial or assess the credibility of the
witnesses, because those are matters for the fact-finder.
Id. The trier of fact is free to believe all or part
of any witness's testimony and may resolve questions of
conflicting testimony and inconsistent evidence. Id.
first point on appeal, Wade argues that there was not
sufficient evidence to support the second-degree
murder-conviction; specifically, he claims that he was
justified in killing Holmes and that the State failed to
negate his claim that he acted in self-defense. A person
commits murder in the second degree if the person knowingly
causes the death of another person under circumstances
manifesting extreme indifference to the value of human life.
Ark. Code Ann. § 5-10-103(a)(1) (Repl. 2013). A person
acts knowingly with respect to his conduct or the attendant
circumstances when he is aware that his conduct is of that
nature or that such circumstances exist; a person acts
knowingly with respect to a result of his conduct when he is
aware that it is practically certain that his conduct will
cause such a result. Ark. Code Ann. § 5-2-202(2) (Repl.
2013). When there is any evidence to support the existence of
a justification defense, the justification becomes an element
of the offense that the State is required to disprove beyond
a reasonable doubt. Ark. Code Ann. § 5-1-102(5) (Repl.
2013). A person is justified in using deadly physical force
upon another person if the person reasonably believes that
the other person is using or is about to use unlawful deadly
physical force. Ark. Code Ann. § 5-2-607 (Supp. 2015).
However, a person may not use deadly physical force in
self-defense if the person knows that he or she can avoid the
necessity of using deadly physical force by retreating.
Id. Whether one is justified in using deadly force
is an issue for the jury. Sullivan v. State, 2015
Ark.App. 514, at 4, 470 S.W.3d 312, 315.
is substantial evidence that Wade was not justified in using
such force against Holmes. Wade testified that he did not
have any sort of problem or animosity with Holmes, but he
felt his life was in danger because, when he came back to the
car, he believed Holmes was reaching for a gun. In fact, the
evidence supports that Wade was the first and only person to
draw a weapon. Moreover, a surveillance video from a nearby
business appears to show that Wade was the initial aggressor
and that he failed to retreat. The video recording, the
testimony of the eyewitnesses, and the testimony of Wade
himself provide substantial evidence to support the
jury's finding that the State negated Wade's
justification defense beyond a reasonable doubt.
second point on appeal, Wade argues that the circuit court
abused its discretion when it granted the State's motion
to exclude testimony from the medical examiner that Holmes
had illegal controlled substances in his system at the time
of his death. Rule 401 of the Arkansas Rules of Evidence
defines relevant evidence as "evidence having any
tendency to make the existence of any fact that is of
consequence to the determination of the action more probable
or less probable than it would be without the evidence."
Arkansas Rule of Evidence 402 further provides that
"[e]vidence which is not relevant is not
admissible." Even relevant evidence may be excluded if
its probative value is substantially outweighed by the danger
of unfair prejudice. Ark. R. Evid. 403. In Sipe v.
State, we held that evidence of the victim's
intoxication at the time of death was irrelevant to the
appellant's claim of self-defense and thus inadmissible.
2012 Ark.App. 261, at 11, 404 S.W.3d 164, 171. In
Sipe, the appellant sought to introduce the
victim's toxicology report, which showed that at the time
of his death, he was under the influence of amphetamines,
opiates, hydrocodone, and several other drugs. Id.
at 13, 404 S.W.3d at 172. We affirmed the circuit court's
ruling that it was not only prejudicial but also completely
irrelevant unless the appellant knew at the time of the
shooting that the victim was intoxicated. Id.
Wade sought to introduce Holmes's toxicology report to
support his claim that, given Holmes's aggressive and
erratic behavior, it was reasonable for Wade to believe
Holmes was reaching for a gun. The testimony at trial
established that Wade knew Holmes had been drinking, but he
did not have any knowledge regarding Holmes's ingestion
of drugs. Because Wade did not know at the time of the
shooting that Holmes had ingested drugs, the toxicology
report was irrelevant, and the circuit court did not abuse
its discretion in ruling that the toxicology report's
probative value was far outweighed by the danger of unfair
prejudice. Moreover, Wade was not prejudiced by the circuit
court's ruling excluding the toxicology report because he
presented ample proof of the victim's erratic and
aggressive behavior. There was testimony that Holmes was
intoxicated and was repeatedly firing his gun into the air
when he left the party. Additionally, the jury ...