FROM THE CRAIGHEAD COUNTY CIRCUIT COURT [NO. 16CR-15-795]
HONORABLE CINDY THYER, JUDGE.
Goodwin Jones, for appellant.
Rutledge, Att'y Gen., by: Pamela Rumpz, Ass't
Att'y Gen., for appellee.
A. WOMACK, ASSOCIATE JUSTICE.
Tarver was convicted of capital murder, kidnapping,
aggravated burglary, abuse of a corpse, theft of property,
and possession of a defaced firearm, with all charges
stemming from the 2015 murder of 90-year-old Lavinda Counce.
He was sentenced to life imprisonment without the possibility
of parole in addition to several other consecutive sentences.
Tarver appeals his convictions, challenging both the
sufficiency of the evidence supporting his convictions and
the trial court's adverse rulings on miscellaneous
motions from various stages of the trial. This court
previously ordered rebriefing because the State's initial
brief did not fulfill its obligation under Arkansas Supreme
Court Rule 4-3(i) (2017) to address all of the points that
Tarver argues on appeal. Tarver v. State, 2017 Ark.
348. Now that the State has sufficiently briefed responses to
Tarver's arguments and assertions, we affirm.
claim that the circuit court erred in denying his motions for
a directed verdict is a challenge to the sufficiency of the
evidence. In reviewing a challenge to the sufficiency of the
evidence, we view the evidence in the light most favorable to
the State and consider only the evidence that supports the
verdict. See, e.g., Dortch v. State, 2018
Ark. 135, at 5, ___ S.W.3d ___, ___. We affirm the conviction
if substantial evidence supports it. 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. Tarver presents his challenge to the
sufficiency of the evidence and his challenge to the trial
court's admission of his various incriminating custodial
statements as separate points on appeal. The entirety of his
discussion on the sufficiency-of-the-evidence point, however,
rests on his claim that the State could only have proved
certain elements of the alleged crimes through the admission
of "uncorroborated, coerced statements." Resolving
the first point requires resolving the second.
separate sets of statements by Tarver are at issue. The first
statement came during the police search of Tarver's
house. Police identified Tarver as a suspect following a
canvass of the victim's neighborhood. They obtained a
search warrant for his home based on information gathered in
that sweep. When police executed the warrant, Tarver was
present with his family members at the home. Tarver expressed
concern to the police that they not harm his family. The
police responded that they had no intent to do so, and they
further stated that Tarver knew what the search was about.
Tarver replied, "I know. I know." The second group
of statements came immediately afterward. Tarver was
handcuffed and placed into the front seat of a police
vehicle. A police officer read Tarver his rights from a form,
and Tarver verbally indicated that he understood those
rights. Tarver was not asked to sign the rights form because
his hands were still restrained. First in this vehicle and
then later upon being transferred to another, Tarver
initially denied involvement in the murder, then admitted
disposing of the body, and then finally (accurately) revealed
the location of a defaced gun within his house. Third, Tarver
gave further incriminating custodial statements once he
reached the sheriff's office. Tarver was again read his
rights, and this time signed the rights form. In two recorded
statements, Tarver described his commission of the murder in
trial court did not err in refusing to suppress any of these
statements. First, the trial court determined that
Tarver's "I know" statements made during the
execution of the search warrant were spontaneously given,
analogizing to Stone v. State, 321 Ark. 46, 900
S.W.2d 515 (1995). In determining whether a custodial
statement was spontaneously given, the crucial question we
ask is whether "it was made in the context of a police
interrogation, meaning direct or indirect questioning put to
the defendant with the purpose of eliciting a statement from
the defendant." Id. at 54, 900 S.W.2d at 519.
Here, the police officer's statement that Tarver knew why
the search was occurring is certainly not a direct question.
Further, we cannot say that the trial court erred in
concluding it was not an attempt at indirect questioning
either. Tarver attempts to argue that this circumstance is
less like Stone-where we upheld the admission of a
defendant's unprompted confession to a murder during an
unrelated traffic stop-and more like Shelton v.
State, 287 Ark. 322, 699 S.W.2d 728 (1985)-where we
reversed over the admission of a defendant's confession
in response to a police officer musing about the seriousness
of the crime and stating that the defendant should do
anything he could to help solve it. We do not find
Tarver's argued similarity to Shelton
convincing. It is clear that the officer in Shelton
was attempting to elicit some affirmative reaction from the
defendant. Here, the most natural reading of the
officer's comment to Tarver is as part of an ongoing
attempt to pacify him during a search.
primary argument against admitting the second
statements-those made in the police vehicles-is merely that
they followed close on the heels of the first statement.
Citing Brown v. Illinois, 422 U.S. 590 (1975), he
argues that the latter statements are "fruit of the
poisonous tree" because the initial statements were
themselves coerced and improperly admitted. Because we have
just held that the tree in this metaphor was not poisonous,
this argument fails. Tarver's freestanding objections to
the statements made in the police vehicles are also quickly
dispensed with. While Tarver is correct that these statements
were not recorded and that he did not sign the form from
which the police officer read him his rights as this
juncture, these defects are not sufficient by themselves to
render a custodial statement inadmissible. See,
e.g., Moore v. State, 303 Ark. 514, 798 S.W.2d
87 (1990) (holding that the lack of a signed
rights-disclosure form did not alone defeat other evidence of
voluntary waiver); Ark. R. Crim. P. 4.7 (2017) (permitting
courts to consider why a recording of a custodial statement
was not made in any particular case, but not requiring
recorded statements Tarver made in the sheriff's office,
Tarver's sole argument is the "fruit of the
poisonous tree" line of reasoning outlined above.
Because, he argues, the statements at the sheriff's
office came soon after the vehicle statements that in turn
came soon after the search statement, this final link should
be excluded. As above, however, we have found no fault with
any of the prior links. Without a source of poison, the
argument collapses. With no independent reason to question
the admissibility of these interviews, we cannot say that the
trial court erred in denying Tarver's motion to suppress.
Because the trial court did not err in admitting any of
Tarver's incriminating statements, because other
substantial evidence corroborated those statements,
because this evidence is more than enough to satisfy the
elements of the charges Tarver challenges,  we affirm the
trial court's denial of Tarver's motions for a
directed verdict based on insufficiency of the evidence.
to Tarver's survey of twenty-six other adverse rulings
made by the trial court. As an initial matter, several of the
points involve Tarver's objections to how the trial court
handled various aspects of the potential application of the
death penalty to his case.All arguments of this nature are moot,
however, as Tarver did not receive a sentence of death.
See, e.g., McFarland v. State, 337 Ark.
386, 400, 989 S.W.2d 899, 906 (1999). Additionally, some of
the adverse rulings that Tarver chooses to highlight are
merely described without any further legal argument offered
in support of reversal. To the extent these were intended to
be points on appeal, they are abandoned. See Hale v.
State, 343 Ark. 62, 31 S.W.3d 850 (2000).
remaining arguments, several challenge the trial court's
evidentiary decisions. Tarver's first challenge is to the
trial court's relevancy determinations of (1) the
unsigned rights-disclosure form from his statements in the
police vehicles and (2) a police officer's testimony
about his encounter with Tarver's wife on the day of the
arrest. Tarver did not specifically dispute the
relevancy of this evidence below, and therefore that argument
is not preserved for our review on appeal. See,
e.g., Dodson v. State, 341 Ark. 41, 48, 14
S.W.3d 489, 494 (2000). Next, Tarver argues that the trial
court should not have allowed "duplicative and
inflammatory" photos into evidence. This evidentiary
decision is reviewed for an abuse of discretion. See,
e.g., Duncan v. State, 2018 Ark. 71, at 3, 539
S.W.3d 581, 583. We cannot say that the trial court's
actions here-carefully admitting 13 photos it determined
illustrated distinct aspects of the crime while excluding 154
other photos-constituted an abuse of discretion.
further challenges the trial court's admission of the
testimony of a criminal investigator about fingerprint
evidence. The motion Tarver made was that the
testimony was "beyond the [witness's]
expertise." The trial court denied the motion based on
the State's response that the investigator was not
offering testimony as an expert witness but rather as a
trained layperson. Having not countered this argument below,
Tarver may not shift his argument and change the nature of
the objection on appeal. See, e.g., Foreman v.
State, 328 Ark. 583, 594, 945 S.W.2d 926, 932 (1997).
Tarver argues that the trial court erred in overruling his
objection that a police officer's testimony was based on
speculation.The claimed piece of speculation was the
officer's statement that Tarver had used paper money
stolen from the victim for shopping later in the afternoon.
Tarver claims the officer could not have truly known where
the money originated. As the State notes, the officer's
testimony was not speculation; it was relaying the details of
one of Tarver's multiple confessions.
Tarver argues that, despite no specific objection having been
made, the trial court erred by allowing the State to
"read[ ] from the Jonesboro Sun" newspaper
extensively in the guise of questioning Tarver during
cross-examination. Tarver asserts that this permitted the
State to introduce improper testimony. The State's
references to the article, however, were limited. Tarver
claimed that his knowledge of the crime came from the
newspaper's coverage, and the State's use of the
article was to clarify which details did or did not appear in
that coverage. The trial court did not abuse its discretion
in allowing such references. Tarver's final evidentiary
point on appeal is that the trial court erred in permitting
the State to cross-examine Tarver about his statement in one
recorded confession that he had no remorse over committing
the murder. Tarver argues that the line of
questioning served only to inflame the jury and did not
belong in the guilt phase of the trial. The trial court did
not abuse its discretion when it permitted this ...