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Brigance v. State

Court of Appeals of Arkansas, Division III

March 28, 2018



          Brian G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks, for appellant.

          Leslie Rutledge, Att'y Gen., by: Ashley Argo Priest, Ass't Att'y Gen., for appellee.


         Appellant Herschel Brigance appeals from his conviction and sentence by a Faulkner County jury on a charge of residential burglary, for which he received an enhanced sentence of thirty years in the Arkansas Department of Correction (ADC) with no opportunity of parole. He argues that (1) the identification by the victim was so tainted that it should have been excluded by the circuit court; (2) the conviction is not supported by the evidence; (3) evidence undercutting the victim's identification of appellant was incorrectly excluded; (4) evidence of prior guilty pleas was incorrectly allowed under Rule 404(b) (2017) of the Arkansas Rules of Evidence; and (5) the enhancement of appellant's sentence was an ex post facto violation. We find merit in appellant's argument that the circuit court committed reversible error by incorrectly excluding evidence that undercut the victim's identification of appellant; therefore, we reverse and remand.

         I. Facts and Procedural History

         This appeal arises from an event that occurred on March 26, 2016. Laura Montano, an off-duty Little Rock police officer, took an over-the-counter sleeping aid about 8:00 p.m. and went to sleep in her Conway home. She was awakened at approximately 11:30 p.m. to the sound of someone knocking at her door. Montano initially ignored the knocking, but when she heard her front door being kicked in, she grabbed her gun from beside her bed and went to confront the intruder. Montano went from her bedroom into the hallway, where she turned on a light and saw a black man in black clothing walking toward her television. The intruder's response to seeing Montano was to exclaim, "Oh, sh**!" Montano fired her weapon at the intruder, and he ran from the house.

         Montano called 9-1-1 and described the intruder as a black man wearing black clothing. Officer Charles Waits was one of the officers who responded to the scene, and he first noticed damage to the front door. He saw four bullet holes, three in the front door and one in the wall, along with a shoe print on the door that later was found to be from a popular "Crocs" brand shoe. Officer Waits called Detective Bob Cole for assistance in processing the crime scene. Detective Cole arrived and noticed that Montano's deadbolt had a visibly damaged entry hole and looked as if one of the bullets had gone through the deadbolt. After appellant had become a suspect, Detective Cole obtained an order to take a DNA swab from appellant to send to the Arkansas State Crime Lab (ASCL) to compare with crime-scene evidence.

         While processing the scene, officers found four spent shell casings on the floor. Five unfired rounds were in Montano's gun's magazine, which holds nine rounds. Montano initially told investigating officers that she fired four rounds, although at trial she testified that she did not really know how many rounds she had fired. Montano explained that her usual habit was to load the gun with ten rounds-one in the chamber and nine in the magazine.

         Montano was questioned at the scene by Conway police about the description of the intruder, and she provided the same response that she gave to the 9-1-1 dispatcher. But she did tell Detective Cole before she went to the police station that she would be able to pick out the suspect. When Montano was questioned later at the Conway Police Department in the presence of her lawyer and union representative about the description of the intruder, she again provided the same answer. When asked, she did not recall any other specifics other than her recollection that the jacket worn by the intruder was hooded.

         Officer Cevron Hackett and Officer Lois Spencer were both at the crime scene looking for suspects and were sent to the Conway Regional Medical Center (CRMC) to assist a victim of a shooting that occurred that same night. At the hospital, Officers Hackett and Spencer discovered that appellant was the shooting victim. Detective Cole said that there were no other gunshot wounds reported to the Conway Police Department that weekend.

         Dr. Michael Fahr, an emergency-room physician at CRMC, testified that around 3:00 a.m. on March 27, 2016, he treated appellant for a superficial gunshot wound to his left shoulder. Appellant had a bullet lodged in his left shoulder, [1] but the evidence did not confirm that the bullet came from Montano's gun. Officer Hackett, while in appellant's hospital room, saw appellant's clothing and noticed that his shirt did not have a bullet hole. Officer Hackett also saw some "Crocs" brand shoes in the bag containing appellant's clothes.

         Appellant was arrested and charged with residential burglary for breaking into Montano's home. The arrest was the subject of media coverage, and appellant's photograph, in prison attire, was broadcast on television and printed in newspapers. It is undisputed that Montano saw these reports that included appellant's photograph.

         In June 2016, the Faulkner County Prosecutor's Office contacted Montano to ask if she could identify the person who broke into her home, and she said that she could. On July 9, 2016, Montano met with Detective Cole and one other detective to take part in a double-blind photo lineup of possible suspects. Montano was shown six photographs, and she identified appellant in picture number four with 100 percent certainty that he was the intruder who had been in her living room March 26, 2016. She also personally identified appellant as the intruder at trial.

         Billy Bryant, a former reserve sheriff's deputy, was dumpster diving on September 27, 2016, in the Fox Run Apartment complex in Conway and found a black jacket that he thought might be worth keeping. When he examined the jacket, Bryant noticed a bullet hole and some discoloration that he thought might be dried blood. Bryant called the police to report finding the jacket.

         Rachel Ganley, forensic serologist for the ASCL, testified that she examined the black jacket found by Bryant. Ganley tested the stains found on twelve cuttings of areas of the jacket, and seven areas tested positive for blood. Ganley submitted these areas to the DNA division of the ASCL. Mary Simonson, forensic DNA examiner for the ASCL, testified that she examined DNA from the blood cuttings taken from the jacket and compared the DNA profile to the DNA swab previously taken from appellant. Simonson said the DNA profile obtained from the jacket cuttings matched appellant's DNA profile with all scientific certainty, or a 100 percent match to appellant.

         On December 13, 2016, appellant filed a motion to quash the photo-lineup identification of himself. At trial, appellant challenged both the photo-lineup and the in-court identifications and asked to have them excluded, but the circuit court denied the motion. The State sought to prove appellant's intent to commit a felony after entering Montano's home by introducing his prior guilty pleas pursuant to Arkansas Rule of Evidence 404(b), which appellant also challenged. At the jury trial held on December 20, 2016, immediately before jury selection, the circuit court held a hearing on these issues and allowed the admission of the evidence.

         Appellant moved for directed verdict both at the close of the State's case and at the close of the evidence, arguing that the State failed to present sufficient evidence to sustain a jury verdict. The circuit court denied the motions, and the jury returned a guilty verdict.

         The State sought to enhance appellant's penalty as a habitual criminal who had previously pleaded guilty to three other residential burglaries. Residential burglary had been reclassified as a violent felony before this incident occurred but after appellant's three prior guilty pleas. Appellant argued that the enhancement violated the ex post facto clauses of the Arkansas and United States Constitutions. The circuit court rejected appellant's argument and allowed the enhancement.

         The jury returned a sentence recommendation of thirty years in the ADC with no opportunity of parole, which the circuit court accepted. Appellant moved for judgment notwithstanding the verdict following the sentencing phase but before the sentence was imposed. The circuit court denied the motion. Appellant was sentenced pursuant to a sentencing order entered on December 27, 2016, and he filed a timely notice of appeal on December 29, 2016.

         II. Discussion

         A. Sufficiency of the Evidence

         Although appellant challenges the sufficiency of the evidence in his second point on appeal, preservation of an appellant's right to be free from double jeopardy requires a review of the sufficiency of the evidence before a review of trial errors. Sampson v. State, 2018 Ark.App. 160___, S.W.3d ___. Our test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. On appeal, the evidence is viewed in the light most favorable to the State; only evidence supporting the verdict is considered. Id. Weighing the evidence, reconciling conflicts in testimony, and assessing credibility are all matters exclusively for the trier of fact. Id.

         A person commits residential burglary if he or she enters or remains unlawfully in a residential occupiable structure of another person with the purpose of committing in the residential occupiable structure any offense punishable by imprisonment. Ark. Code Ann. § 5-39-201(a)(1) (Repl. 2013). The offense of residential burglary requires proof of two elements: (1) that the person entered or remained unlawfully in a residential occupiable structure of another person and (2) that he or she did so with the purpose of committing an offense punishable by imprisonment. Wilson v. State, 2016 Ark.App. 218, 489 S.W.3d 716.

         Appellant argues that if Montano's identification had not been allowed, a verdict in his favor would have been directed. But appellant argues that even if the identification was properly allowed, his motions for directed verdict and judgment notwithstanding the verdict should have been granted.

         Appellant maintains that much of the evidence exonerates him. He notes that only four shots from Montano's weapon can be substantiated-four shell casings were found on the floor; four bullet holes were found in her door and wall; five rounds were in Montano's nine-round magazine; Montano initially reported firing four rounds. Appellant submits that none of those four rounds can remain in his shoulder because they hit either the wall or the door. He claims that the fact that a bullet remains in his shoulder supports his conclusion that all the bullets Montano fired at the intruder are accounted for by the holes they left in Montano's wall and door.

         Appellant submits that other physical evidence also fails to support him being the intruder. His jacket was found in a dumpster near Fox Run Apartments in South Conway miles from Montano's home in far West Conway. It had his blood on it and a bullet hole in it, but the evidence does not support that the wound was caused by Montano's gun.

         The two items of evidence on which the State's substantive case rests are a shoe print found on Montano's door and Montano's identification of appellant. The shoe print found on Montano's door was similar to the tread on the shoes appellant was wearing when he was treated at the hospital on the night of the intrusion. But those shoes are ...

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