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Torres v. State

Supreme Court of Arkansas

April 18, 2019



          Jeff Rosenzweig; William O. James Jr.; and George (Birc) Morledge, for appellant.

          Leslie Rutledge, Att'y Gen., by: Rebecca Kane, Ass't Att'y Gen.; and Michael A. Hylden, Ass't Att'y Gen., for appellee.

          KAREN R. BAKER, Associate Justice.

         On 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.

         I. Points on Appeal

         A. Rape Felony Murder

         1. Standard of review

         The 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.

         a. Jurisdictional sufficiency

         First, 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).

         b. Factual sufficiency

         Second, 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).

         c. Legal sufficiency

         Third, 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."

         Next, 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 (1968).

Griffin, 502 U.S. at 58-59.

         Accordingly, 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 evidence.

         d. Capital-felony-murder standard

         Fourth, 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.

         B. Law and Analysis

         1. Felony murder: Ark. Code Ann. §§ 5-10-101 & 5-14-103

         With 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 ...

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