FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04CR-15-551]
HONORABLE BRAD KARREN, JUDGE.
Rosenzweig; William O. James Jr.; and George (Birc) Morledge,
Rutledge, Att'y Gen., by: Rebecca Kane, Ass't
Att'y Gen.; and Michael A. Hylden, Ass't Att'y
Gen., for appellee.
R. BAKER, Associate Justice.
November 15, 2016, a Benton County Circuit Court jury
convicted appellant, Mauricio Alejandro Torres, of capital
murder and first-degree battery in the death of his
six-year-old son Maurice "Isaiah" Torres. The jury
was presented with two alternative theories of capital
murder: (1) felony murder with the underlying felony of rape
(rape felony murder); or (2) child-abuse murder. Torres was
sentenced to death for the murder and to twenty years'
imprisonment and a $15, 000 fine for the battery. Torres
raises nine points on appeal: (1) the circuit court should
have directed a verdict on the rape felony murder formulation
because of failure of proof of the predicate felony; (2)
Torres was entitled to separate verdict forms in order for
the jury to specify which formulation or formulations of
capital murder the jury had convicted him of; (3) the circuit
court erred in refusing to correct the prosecutor's
erroneous comments about jury unanimity; (4) the formulation
"under the circumstances manifesting extreme
indifference to the value of human life" is
unconstitutionally vague because of shifting and conflicting
interpretations; (5) the circuit court erred in denying jury
instructions for the affirmative defense to felony murder
that appropriately allocate the burden of proof; (6) the
circuit court should have suppressed Torres's statements,
and if not, the circuit court should have required admission
of another Torres statement under authority of Arkansas Rule
of Evidence 106; (7) the circuit court erred in permitting
aggravating circumstances for which Torres was never
convicted and for which the statute of limitations had
expired; (8) the circuit court erred in refusing a jury
instruction correctly stating Arkansas law as to the grant of
mercy; and (9) the circuit court must reverse the death
sentence because of the improper double counting.
Points on Appeal
Standard of review
State charged Torres with capital murder under alternate
theories pursuant to Ark. Code Ann. § 5-10-101 (Supp.
2017), rape felony murder and child-abuse murder. For his
first point on appeal, Torres contends that the circuit court
should have directed a verdict on the rape-felony-murder
formulation because of failure to prove the underlying
felony. Torres contends that the rape conviction is legally
insufficient, and because a general verdict form was used, it
is unclear which theory the jury convicted upon; and
therefore, we must reverse and remand this case for a new
trial. In addressing Torres's argument, we first review
the applicable standards of review.
territorial jurisdiction over a criminal defendant is
controlled by statute. Arkansas courts have jurisdiction to
convict a person under this state's laws when a crime is
committed by a person if "[e]ither the conduct or a
result that is an element of the offense occurs within the
state." Ark. Code Ann. § 5-1-104(a)(1) (Repl.
2013); see also Kirwan v. State, 351 Ark. 603, 616,
96 S.W.3d 724, 731 (2003). "We have stated that
'when reviewing the evidence on a jurisdictional
question, [we] need only determine whether there is
substantial evidence to support the finding of
jurisdiction.' [Kirwan, 351 Ark. 603, 96 S.W.3d
731]; Dunham v. State, 315 Ark. 580, 581, 868 S.W.2d
496, 497 (1994)." Ridling v. State, 360 Ark.
424, 435, 203 S.W.3d 63, 70 (2005).
we treat a motion for a directed verdict as a challenge to
the sufficiency of the evidence. Whitt v. State, 365
Ark. 580, 232 S.W.3d 459 (2006). When reviewing a challenge
to the sufficiency of the evidence, this court assesses the
evidence in the light most favorable to the State and
considers only the evidence that supports the verdict.
Gillard v. State, 366 Ark. 217, 234 S.W.3d 310
(2006). We will affirm a judgment of conviction if
substantial evidence exists to support it. Id.
Substantial evidence is evidence 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. Ricks v. State, 316 Ark.
601, 873 S.W.2d 808 (1994).
we must review the legal sufficiency of Torres's
conviction. In Stromberg v. California, 283 U.S.
359, 367-68 (1931), the Supreme Court addressed the use of a
general verdict form when the statute at issue could be
violated under three distinct theories. In
Stromberg, one of the possible bases of conviction
was unconstitutional. In reversing the conviction,
the Court explained: "The verdict against the appellant
was a general one. It did not specify the ground upon which
it rested. As there were three purposes set forth in the
statute, and the jury was instructed that their verdict might
be given with respect to any one of them, independently
considered, it is impossible to say under which clause of the
statute the conviction was obtained. If any one of these
clauses, which the state court has held to be separable, was
invalid, it cannot be determined upon this record that the
appellant was not convicted under that clause."
in Yates v. United States, 354 U.S. 298, 312 (1957),
overruled on other grounds by Burks v. United
States, 437 U.S. 1 (1978). The Supreme Court extended
the Stromberg rule to cases in which one possible
basis for conviction was illegal due to a statutory time-bar.
In that case, Yates appealed from a conviction of (1)
conspiring to organize the Communist Party of the United
States with the intent of causing the overthrow of the
government and (2) conspiring to advocate the violent
overthrow of the government. The two charges were submitted
together to the jury, but it could not be determined on which
charge the defendants had been convicted. The Supreme Court
was then presented with the issue of two different legal
theories to support Yates's conviction. The Supreme Court
held that the charge of conspiring to organize the Communist
Party of the United States with the intent of causing the
overthrow of the government was barred by the statute of
limitations. Because that charge was submitted to the jury,
along with the charge of conspiring to advocate the violent
overthrow of the government, the Supreme Court held that the
convictions could not be supported on the basis of the
conspiring-to-advocate charge as it could not be determined
on which charge the jury had convicted the defendants. The
Supreme Court explained:
In these circumstances we think the proper rule to be applied
is that which requires a verdict to be set aside in cases
where the verdict is supportable on one ground, but not on
another, and it is impossible to tell which ground the jury
selected. Stromberg v California, 283 U.S. 359,
367-368 [51 S.Ct. 532');">51 S.Ct. 532, 535, 75 L.Ed. 1117]; Williams v.
North Carolina, 317 U.S. 287, 291-292 [63 S.Ct. 207');">63 S.Ct. 207,
209-210, 87 L.Ed. 279]; Cramer v. United States, 325
U.S.1, 36, n. 45 [65 S.Ct. 918');">65 S.Ct. 918, 935, n. 45, 89 L.Ed. 1441].
In Griffin v. United States, 502 U.S. 46 (1991), the
Supreme Court limited the application of Yates to
circumstances in which one of the alternatives was legally
insufficient-not simply factually insufficient. In explaining
the distinction between factually and legally insufficient,
the Court stated:
Finally, petitioner asserts that the distinction between
legal error (Yates) and insufficiency of proof
(Turner [v. United States, 396 U.S. 398,
420, 90 S.Ct. 642, 654, 24 L.Ed.2d 610]) is illusory, since
judgments that are not supported by the requisite minimum of
proof are invalid as a matter of law-and indeed, in the
criminal law field at least, are constitutionally required to
be set aside. See Jackson v. Virginia, 443 U.S. 307,
319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).
Insufficiency of proof, in other words, is legal error. This
represents a purely semantical dispute. In one sense
"legal error" includes inadequacy of
evidence-namely, when the phrase is used as a term of art to
designate those mistakes that it is the business of judges
(in jury cases) and of appellate courts to identify and
correct. In this sense "legal error" occurs when a
jury, properly instructed as to the law, convicts on the
basis of evidence that no reasonable person could regard as
sufficient. But in another sense-a more natural and less
artful sense-the term "legal error" means a mistake
about the law, as opposed to a mistake concerning the weight
or the factual import of the evidence. The answer to
petitioner's objection is simply that we are using
"legal error" in the latter sense.
That surely establishes a clear line that will separate
Turner from Yates, and it happens to be a
line that makes good sense. Jurors are not generally equipped
to determine whether a particular theory of conviction
submitted to them is contrary to law-whether, for example,
the action in question is protected by the Constitution, is
time barred, or fails to come within the statutory definition
of the crime. When, therefore, jurors have been left the
option of relying upon a legally inadequate theory, there is
no reason to think that their own intelligence and expertise
will save them from that error. Quite the opposite is true,
however, when they have been left the option of relying upon
a factually inadequate theory, since jurors are well equipped
to analyze the evidence, see Duncan v. Louisiana,
391 U.S. 145, 157, 88 S.Ct. 1444, 1451, 20 L.Ed.2d 491
Griffin, 502 U.S. at 58-59.
the Supreme Court has identified a distinction between
legally insufficient alternatives and alternatives that may
not be supported by sufficient evidence. The former cannot be
upheld in a general verdict, but the latter can, provided at
least one charged alternative is supported by sufficient
in reviewing our standards, we note that the parties agree
that because the State charged Torres with capital murder
pursuant to capital felony murder, the State must prove the
underlying felony as it becomes an element of the murder
charge. "Under capital-felony murder, the State must
first prove the felony, so the felony becomes an element of
the murder charge. Ross v. State, 346 Ark. 225, 57
S.W.3d 152 (2001). Proof of each felony was presented
separately, and each felony may be examined separately."
Williams v. State, 347 Ark. 728, 744, 67 S.W.3d 548,
557 (2002). Accordingly, to sustain Torres's
capital-murder conviction, the State must prove either the
rape felony murder or the child-abuse-murder.
Felony murder: Ark. Code Ann. §§ 5-10-101 &
these standards in mind, we now turn to Torres's
argument. The State charged Torres with capital murder under
two alternate theories pursuant to Arkansas Code Annotated
§ 5-10-101(a)(1)(A)(ii), the rape-felony-murder
provision, and § 5-10-101(a)(9), the child-abuse-murder
provision. The statute provides in pertinent part:
(a) A person commits capital murder if:
(1) Acting alone or with one (1) or more other ...