Ark. Code Ann. § 5-10-101 (2026)

Research References

ALR.

Propriety of lesser included offense charge of voluntary manslaughter to jury in state murder prosecution — Twenty-first century cases. 3 A.L.R.6th 543.

Sufficiency of Evidence to Support Homicide Conviction Where No Body Was Produced. 65 A.L.R.6th 359.

Ark. L. Rev.

Article, Ethical and Effective Representation in Arkansas Capital Trials, 60 Ark. L. Rev. 1.

U. Ark. Little Rock L.J.

Survey, Criminal Law, 12 U. Ark. Little Rock L.J. 617.

Survey — Criminal Law, 14 U. Ark. Little Rock L.J. 753.

Annual Survey of Caselaw, Criminal Law, 25 U. Ark. Little Rock L. Rev. 925.

Survey of Legislation, 2003 Arkansas General Assembly, Criminal Law, Arkansas Anti-Terrorism Act of 2003, 26 U. Ark. Little Rock L. Rev. 374.

Case Notes

Constitutionality.

At the conclusion of the guilt phase of the death-row inmate's trial, the state trial court instructed the jury on the elements of capital murder, subdivision (a)(1) of this section, and first-degree murder, § 5-10-102(a)(1), which were substantively identical because the underlying felony for both offenses was kidnapping; this overlap did not violate due process by risking arbitrary decisionmaking in a capital case. Williams v. Norris, 576 F.3d 850 (8th Cir. 2009).

Circuit court erred by denying appellant juvenile's petition for writ of habeas corpus; because he was only fourteen years old when he committed capital-murder and aggravated-robbery, his mandatory sentence of life imprisonment without parole violated the Eighth Amendment, U.S. Const. amend. VIII. In considering the capital-murder statute as it pertained to juveniles, the Supreme Court of Arkansas severed portions of subsection (c) of this section which provided that capital murder was punishable by death or life imprisonment without parole. Jackson v. Norris, 2013 Ark. 175, 426 S.W.3d 906 (2013).

Juvenile's capital-murder sentence of life without parole under subsection (c) of this section was unconstitutional; the case was remanded for resentencing under the discretionary range for a Class Y felony, § 5-4-401(a)(1), after a sentencing hearing at which the juvenile could present mitigating evidence to a jury. Whiteside v. State, 2013 Ark. 176, 426 S.W.3d 917 (2013), cert. denied, Whiteside v. Arkansas, — U.S. —, 134 S. Ct. 311, 187 L. Ed. 2d 220 (2013).

—In general.

The capital felony murder statute is not unconstitutional. Swindler v. State, 264 Ark. 107, 569 S.W.2d 120 (1978); Sanders v. State, 317 Ark. 328, 878 S.W.2d 391 (1994), cert. denied, Sanders v. Arkansas, 513 U.S. 1162, 115 S. Ct. 1126 (1995); Carmichael v. State, 340 Ark. 598, 12 S.W.3d 225 (2000).

The fact that the jury must find the existence of robbery in order to convict of capital felony murder committed in the course of a robbery and then may also consider the motive of robbery as an aggravating circumstance under § 5-4-604(6) concerning “pecuniary gain” does not render the jury's discretion unfettered or unconstitutionally arbitrary; rather, the jury's attention is directed to the specific circumstances of the crime. Woodard v. Sargent, 567 F. Supp. 1548 (E.D. Ark. 1983), rev'd, 753 F.2d 694 (8th Cir. Ark. 1985).

The capital felony murder statute, and the first-degree murder statute, are not void for vagueness because they overlap. Abernathy v. State, 278 Ark. 250, 644 S.W.2d 590 (1983); Owens v. State, 283 Ark. 327, 675 S.W.2d 834 (1984).

Argument of defendant that the Arkansas death penalty was unconstitutional was rejected. Hayes v. State, 278 Ark. 211, 645 S.W.2d 662 (1983), cert. denied, Hayes v. Arkansas, 464 U.S. 865, 104 S. Ct. 198, 78 L. Ed. 2d 173 (1984); Hayes v. Arkansas, 465 U.S. 1051, 104 S. Ct. 1331, 79 L. Ed. 2d 726 (1984).

Capital murder and first-degree murder statutes are constitutional. Simpson v. State, 278 Ark. 334, 645 S.W.2d 688 (1983).

The claim that the Arkansas statutory scheme regarding capital murder is unconstitutional in that it does not require the jury to separately weigh each defendant's role in a crime involving capital murder, so as to determine individual culpability, was rejected upon the evidence presented. Clines v. State, 280 Ark. 77, 656 S.W.2d 684 (1983), cert. denied, Clines v. Arkansas, 465 U.S. 1051, 104 S. Ct. 1328, 79 L. Ed. 2d 723 (1984); Clines v. Arkansas, 465 U.S. 1051, 104 S. Ct. 1328, 79 L. Ed. 2d 723 (1984).

Even though the state may charge a murder during the course of a felony as either capital or first-degree murder, there is no violation of defendant's right to equal protection. Penn v. State, 284 Ark. 234, 681 S.W.2d 307 (1984).

The overlap of subdivision (a)(1) of this section with § 5-10-102(a)(1) does not deprive the accused of due process and equal protection of the laws. Cannon v. State, 286 Ark. 242, 690 S.W.2d 725 (1985).

The Supreme Court has held consistently that the death penalty as provided for by this section is constitutional. Pruett v. State, 287 Ark. 124, 697 S.W.2d 872 (1985).

Both this section and the murder in the first degree statute, § 5-10-102, clearly identify the conduct prohibited and unambiguously describe the applicable penalties, thus providing adequate notice; therefore, these sections are not unconstitutionally vague. Simmons v. Lockhart, 626 F. Supp. 872 (E.D. Ark. 1985), aff'd, 814 F.2d 504 (8th Cir. 1987).

The removal for cause, prior to the guilt phase of a bifurcated capital trial, of prospective jurors who state that they cannot, under any circumstances, vote for the imposition of the death penalty does not violate a defendant's right under the Sixth and Fourteenth Amendments of the United States Constitution to have his guilt or innocence determined by an impartial jury selected from a representative cross section of the community or his constitutional right to an impartial jury. Lockhart v. McCree, 476 U.S. 162, 106 S. Ct. 1758 (1986).

It is not unconstitutional to seek the death penalty when a black defendant is tried for the murder of a white victim. Burnett v. State, 295 Ark. 401, 749 S.W.2d 308 (1988).

The Arkansas capital punishment procedure under this section and § 5-4-601 et seq. appropriately narrows the class of death eligible persons and is constitutional. Perry v. Lockhart, 871 F.2d 1384 (8th Cir. Ark. 1989).

The homicide statutes' 1989 revisions, which upgraded “premeditated and deliberated” murder from first-degree murder to capital murder, did not violate the constitutional prohibition against sentencing guidelines that fail to sufficiently narrow jury discretion in death penalty cases, because under Arkansas' revised capital sentencing scheme, § 5-4-604, the constitutionally-required narrowing function is provided by the “aggravating circumstance” requirement at the penalty phase. Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993).

The elements of “premeditated and deliberated” capital murder under subdivision (a)(4) of this section, and the elements of “purposeful” first-degree murder under subdivision (a)(2) of this section do not unconstitutionally or impermissibly overlap. Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993).

While that class of offenses described in subdivision (a)(4) of this section is somewhat broad, it becomes genuinely narrowed by the aggravating circumstances listed in § 5-4-604. Cox v. State, 313 Ark. 184, 853 S.W.2d 266 (1993).

The overlapping of subdivision (a)(4) of this section and § 5-10-102(a)(2) does not constitute some sort of constitutional violation. Buchanan v. State, 315 Ark. 227, 866 S.W.2d 395 (1993).

Subdivision (a)(4) is not unconstitutional under the federal Eighth and Fourteenth Amendments to the federal constitution because it fails to adequately narrow the class of persons eligible for the death penalty and permits arbitrary prosecutions. Willett v. State, 322 Ark. 613, 911 S.W.2d 937 (1995).

This section sufficiently narrows the class of murderers eligible for the death penalty by specifying only a subgroup of murderers as capital ones. Wainwright v. Lockhart, 80 F.3d 1226 (8th Cir. Ark. 1996).

This section does not unconstitutionally overlap with § 5-10-102. Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996), cert. denied, Echols v. Arkansas, 520 U.S. 1244, 117 S. Ct. 1853, 137 L. Ed. 2d 1055 (1997).

The Arkansas Supreme Court, in Brown v. State, 325 Ark. 504, 929 S.W.2d 146 (1996), did not read out of the capital-felony-murder statute the fourth element of the offense (circumstances manifesting extreme indifference), and it is this element that performs the constitutionally required narrowing function. Ruiz v. Norris, 104 F.3d 163 (8th Cir. 1997).

This section does not have an unconstitutional overlap in the definitions of capital felony murder and first-degree felony murder. Jones v. State, 328 Ark. 307, 942 S.W.2d 851 (1997).

Subsection (b) does not improperly shift the state's burden of proof of proving every element of the offense beyond a reasonable doubt to the defendant and, therefore, the subsection is not violative of the due process clause. Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999), appeal dismissed, — Ark. —, — S.W.3d —, 2000 Ark. LEXIS 148 (Mar. 16, 2000).

—Cruel and Unusual Punishment.

Upon conviction of capital felony murder, defendant's sentence of life imprisonment without parole was not cruel or unusual punishment, where the sentence was within limits established by the legislature. Dyas v. State, 260 Ark. 303, 539 S.W.2d 251 (1976) (decision under prior law).

Sentence of life imprisonment without parole was within the statutory limits of § 5-4-602 and thus not cruel and unusual punishment under the Eighth Amendment to the United States Constitution. Wilson v. State, 271 Ark. 682, 611 S.W.2d 739 (1981).

The Arkansas death penalty statute as a matter of law, as opposed to a matter of personal conscience, does not violate the Eighth Amendment's ban on cruel and unusual punishment. Fairchild v. State, 284 Ark. 289, 681 S.W.2d 380 (1984), cert. denied, Fairchild v. Arkansas, 471 U.S. 1111, 105 S. Ct. 2346 (1985).

—Standing.

Defendant, having received a sentence of life without parole, had no standing to challenge the constitutionality of the death penalty. Van Pelt v. State, 306 Ark. 624, 816 S.W.2d 607 (1991).

Defendant lacked standing to argue that the capital felony murder statute is constitutionally invalid because no narrowing mechanism exists where the defendant did not receive the death penalty. McArthur v. State, 309 Ark. 196, 830 S.W.2d 842 (1992).

—Vagueness.

The overlapping nature of this section and § 5-10-102 does not render those statutes unconstitutional in their application. Wilson v. State, 271 Ark. 682, 611 S.W.2d 739 (1981); McClendon v. State, 295 Ark. 303, 748 S.W.2d 641 (1988); White v. State, 298 Ark. 55, 764 S.W.2d 613 (1989); Hill v. State, 303 Ark. 462, 798 S.W.2d 65 (1990); Coulter v. State, 304 Ark. 527, 804 S.W.2d 348 (1991), cert. denied, Coulter v. Arkansas, 502 U.S. 829, 112 S. Ct. 102 (1991).

Capital murder statute and the first-degree murder statute are not vague, since they clearly set out what acts are prohibited and are not constitutionally infirm, even though they overlap, because there is no impermissible uncertainty in the definition of the offenses. Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981); McArthur v. State, 309 Ark. 196, 830 S.W.2d 842 (1992).

Where the wording of the capital felony murder statute and the first-degree murder statute overlap, such overlapping is not unconstitutionally vague and the overall scheme is not unconstitutional. Ruiz v. State, 273 Ark. 94, 617 S.W.2d 6 (1981), cert. denied, Ruiz v. Arkansas, 454 U.S. 1093, 102 S. Ct. 659 (1981).

The capital murder statute and the first-degree murder statute, § 5-10-102, are not unconstitutionally vague even though they overlap in such a way that an accused may be charged with either crime for the same conduct. Simpson v. State, 274 Ark. 188, 623 S.W.2d 200 (1981); Penn v. State, 284 Ark. 234, 681 S.W.2d 307 (1984).

The overlap of subdivision (a)(1) of this section and of § 5-10-102(a)(1) does not render them unconstitutionally vague, since they clearly set out what acts are prohibited and there is no impermissible uncertainty in the definition of the offenses. Coble v. State, 274 Ark. 134, 624 S.W.2d 421 (1981).

The defendant's argument that the capital murder sentencing statutes are unconstitutionally vague in that the aggravating circumstances of § 5-4-604 are too closely related to the elements of capital felony murder as set out in this section was explicitly rejected because the aggravating circumstances are not an element of capital murder. Henderson v. State, 279 Ark. 414, 652 S.W.2d 26, cert. denied, Henderson v. Arkansas, 464 U.S. 1012, 104 S. Ct. 536 (1983).

Overlapping between “premeditation and deliberation” in the capital murder statute and “purpose” in the murder one statute does not render the two statutes void for vagueness. Weaver v. State, 305 Ark. 180, 806 S.W.2d 615 (1991); Ward v. State, 308 Ark. 415, 827 S.W.2d 110 (1992), cert. denied, Ward v. Arkansas, 506 U.S. 841, 113 S. Ct. 124 (1992).

The offense of premeditated and deliberated capital murder does not violate the constitutional prohibition of vagueness. Smith v. State, 306 Ark. 483, 815 S.W.2d 922 (1991).

While this section and § 5-10-102 may appear to overlap on the degree of required intent, this does not render them unconstitutional due to vagueness or arbitrariness. Van Pelt v. State, 306 Ark. 624, 816 S.W.2d 607 (1991); Simpson v. Lockhart, 942 F.2d 493 (8th Cir. 1991).

This section is not unconstitutionally vague nor does it deny a defendant equal protection because it overlaps with the first degree felony murder statute, § 5-10-102. Hill v. Lockhart, 824 F. Supp. 1327 (E.D. Ark. 1993), modified, 28 F.3d 832 (8th Cir. 1994).

The statute for murder in the first degree, § 5-10-102, and this section, are not unconstitutionally vague, and any overlap in the two sections does not create a constitutional infirmity in the sections. Vickers v. State, 313 Ark. 64, 852 S.W.2d 787 (1993).

This section is not void for vagueness. Williams v. State, 338 Ark. 97, 991 S.W.2d 565 (1999).

This section is not void for vagueness or because of its overlap with § 5-10-102(a)(2). Fudge v. State, 341 Ark. 759, 20 S.W.3d 315 (2000), cert. denied, Fudge v. Arkansas, 531 U.S. 1020, 121 S. Ct. 585 (2000).

Applicability.

Legislature did not intend for the penalty provisions of the Fair Sentencing of Minors Act of 2017 (FSMA), codified at § 5-4-104(b) and § 5-10-101(c), to apply retroactively where the FSMA contained no general retroactivity provision, no retroactivity provision was attached to the FSMA's penalty provisions, and the legislature had expressly stated its intent that other sections of the FSMA applied retroactively. Therefore, the revised punishment for juveniles convicted of capital murder applies only to crimes committed on or after March 20, 2017, the effective date of the FSMA. Harris v. State, 2018 Ark. 179 (2018).

Parole-eligibility provision of the Fair Sentencing of Minors Act of 2017 (FSMA), codified at § 16-93-621(a)(2), did not apply at the time of defendant's hearing because the provision, by its plain language, applies only to those juvenile offenders who are serving a sentence for either capital or first-degree murder; because defendant's life-without-parole sentence was vacated in 2016 under Jackson v. Norris, 2013 Ark. 175, and Kelly v. Gordon, 2015 Ark. 277, he was no longer serving a sentence to which parole eligibility could attach. Harris v. State, 2018 Ark. 179 (2018).

Because the relevant provisions of the Fair Sentencing of Minors Act of 2017 were inapplicable to defendant, defendant was entitled to a hearing under Jackson v. Norris, 2013 Ark. 175, to present Miller evidence for consideration and sentencing within the discretionary range for a Class Y felony. Harris v. State, 2018 Ark. 179 (2018).

In accord with Harris v. State, 2018 Ark. 179. Robinson v. State, 2018 Ark. 353, 563 S.W.3d 530 (2018); Howell v. State, 2019 Ark. 59, 567 S.W.3d 842 (2019); Elliott v. State, 2019 Ark. 162 (2019).

Accomplice.

Evidence was sufficient to support the defendant's conviction as an accomplice to capital murder. Hallman v. State, 264 Ark. 900, 575 S.W.2d 688 (1979); Henry v. State, 278 Ark. 478, 647 S.W.2d 419 (1983), cert. denied, Henry v. Arkansas, 464 U.S. 835, 104 S. Ct. 121 (1983); Allen v. State, 324 Ark. 1, 918 S.W.2d 699 (1996); Kennedy v. State, 325 Ark. 3, 923 S.W.2d 274 (1996).

A person need not take an active part in a murder to be convicted of such if the person accompanied the person or persons who actually committed the murder and assisted in such commission. Hallman v. State, 264 Ark. 900, 575 S.W.2d 688 (1979); Henry v. State, 278 Ark. 478, 647 S.W.2d 419 (1983), cert. denied, Henry v. Arkansas, 464 U.S. 835, 104 S. Ct. 121 (1983); White v. State, 298 Ark. 55, 764 S.W.2d 613 (1989); Sellers v. State, 300 Ark. 280, 778 S.W.2d 603 (1989); Walker v. State, 308 Ark. 498, 825 S.W.2d 822 (1992).

Where defendant was an accomplice and had the requisite intent, the fact that defendant's role in the crime was of a nonviolent nature, and that defendant was unaware that the victim would be killed, made no difference. Dixon v. State, 319 Ark. 347, 891 S.W.2d 59 (1995).

Evidence presented at trial was sufficient to support defendant's conviction where the jury could reasonably have found that he in some way solicited, commanded, induced, procured, counseled, or aided in the commission of the crime; further, a statute cited by defendant stating that, because he was a juvenile at the time of his offense, his parent should have been present during questioning had not yet been enacted at the time he himself was questioned. Jackson v. State, 359 Ark. 87, 194 S.W.3d 757 (2004).

Trial court did not err in denying defendant's motion for directed verdict as there was sufficient evidence to support defendant's conviction of the underlying felony, aggravated robbery, and capital-murder, after eliminating the accomplice testimony; other corroborating evidence demonstrated that defendant had the purpose of committing theft with the use of physical force, was armed with a deadly weapon, and caused the death of the victim and, further, a doctor testified that the victim died from a gunshot wound. Gardner v. State, 364 Ark. 506, 221 S.W.3d 339 (2006).

Defendant's conviction for capital murder, in violation of subdivision (a)(4) of this section, was proper because there was substantial evidence that defendant was guilty as an accomplice pursuant to §§ 5-2-401, 5-2-402(2) and 5-2-403(b)(1), (2), and his argument that there was insufficient evidence of his acting as an accomplice by encouraging, aiding, or assisting the killer in stabbing the victim, was not preserved for review. Lawshea v. State, 2009 Ark. 600, 357 S.W.3d 901 (2009).

Evidence was sufficient to support convictions for aggravated robbery and capital murder because defendant's intent was inferred from the actions of his accomplice; defendant's statement to police provided direct evidence of the accomplice's intent to commit an aggravated robbery, and his account of how the accomplice murdered the victim by shooting her in the forehead was substantial evidence of causing the death of a person under circumstances manifesting extreme indifference to the value of human life. There was ample proof of defendant's participation as he accompanied others to the victim's residence, persuaded her to open the door, helped search the residence, and collected and kept his own share of the property that was stolen. Conway v. State, 2016 Ark. 7, 479 S.W.3d 1 (2016).

There was sufficient evidence that defendant was an accomplice to the crimes of aggravated robbery and capital murder as defendant admitted that he and the codefendants sat in a car planning the theft of beer from a gas station and convenience store and surveillance videos showed that defendant and a codefendant rushed into the store together, that codefendant shot the store clerk, and that defendant attempted to open the cash register, appeared to look around for something to steal, and searched the victim's pockets before fleeing. Williams v. State, 2017 Ark. 287, 528 S.W.3d 839 (2017).

Even assuming the witness was an accomplice, there was independent evidence tending to connect defendant with attempted capital murder, unlawful discharge of a firearm from a vehicle, and fleeing, as his letters and call to the witness were consistent with testimony that defendant was the shooter, and the jury could have found that defendant's alleged actions in firing the assault rifle at the officer and telling the driver to go aided and encouraged the driver in fleeing from the officer. Farmer v. State, 2019 Ark. App. 331 (2019).

Denying defendant's motion for directed verdict on the capital felony murder and aggravated robbery charges was not error where the State presented evidence that two people were involved in the crime, the vehicle used in the crime belonged to defendant's girlfriend, and a handgun that forensically matched the bullets and shell casings found at the crime scene as well as a nearly empty bottle of numerically related whiskey were found in defendant's apartment. The jury was free to conclude that defendant was the shooter or the shooter's accomplice. Finley v. State, 2019 Ark. 336, 587 S.W.3d 223 (2019).

Affirmative Defense.

To establish the affirmative defense under subsection (b), a defendant must prove that he was not the only participant, that he did not commit the homicide act and that he did not in any way solicit, command, induce, procure, counsel, or aid in the commission of the homicide act; obviously, none of these elements are elements of the crime of capital felony murder. Moss v. State, 280 Ark. 27, 655 S.W.2d 375 (1983), cert. denied, Moss v. Arkansas, 465 U.S. 1105, 104 S. Ct. 1606, 80 L. Ed. 2d 135 (1984).

No rational basis for affirmative defense instruction held shown. O'Rourke v. State, 298 Ark. 144, 765 S.W.2d 916 (1989).

Where defendant's defense to capital felony murder charge was that he had nothing to do with the victim's death, and in fact claimed that two other men were implicated in the beating and killing of the victim, it would have made no sense to instruct on the lesser offense of first-degree-felony murder. Hall v. State, 326 Ark. 318, 933 S.W.2d 363 (1996).

The evidence established that the defendant was not entitled to the affirmative defense under subsection (b) where the co-perpetrator testified that (1) the defendant asked the victim to follow her back across town after she dropped the co-perpetrator off, (2) she specifically told the co-perpetrator to follow them and to rob the victim, (3) she told the co-perpetrator that the victim asked her if she would have sex with him if he paid her, and (4) she told the co-perpetrator that she would go into the back of the victim's van and that he should then shoot the victim and take his money. Arnett v. State, 342 Ark. 66, 27 S.W.3d 721 (2000).

Jury could reasonably conclude from defendant's actions during the robbery that defendant induced, procured, or aided in the murder of the victim and the affirmative defense under subsection (b) of this section did not apply where defendant: (1) agreed to rob a store; (2) controlled the stocker in the store while the accomplice took the money from the manager; (3) ushered the victims into the cooler at gun point; and (4) helped keep control of the victims. Miles v. State, 350 Ark. 243, 85 S.W.3d 907 (2002).

Trial court did not err by rejecting defendant's argument that the affirmative defense provisions of subsection (b) of this section unconstitutionally shifted the burden of proof to defendant because he failed to meet the high burden of showing that the court's refusal to overrule cases holding that the statute was constitutional would result in great injustice or injury. Jefferson v. State, 372 Ark. 307, 276 S.W.3d 214 (2008).

Aggravating Circumstances.

There is no distinction based upon the finding of aggravating circumstances between capital murder under this section and murder in the first degree under § 5-10-102 since neither section makes aggravating circumstances an element of the offense; thus, there is no need to make a finding of some aggravating circumstances in order to sustain a conviction for capital murder. Wilson v. State, 271 Ark. 682, 611 S.W.2d 739 (1981).

Where the jury could properly find that the victim was killed to prevent any identification of the assailant, the death penalty statute was not unconstitutionally applied to defendant who argued that aggravating circumstance of killing “to avoid arrest” would apply to every felony murder. Woodard v. Sargent, 567 F. Supp. 1548 (E.D. Ark. 1983), rev'd, 753 F.2d 694 (8th Cir. Ark. 1985).

Everyone who commits murder in the course of a robbery commits the crime for purposes of pecuniary gain; therefore, the pecuniary-gain aggravating circumstance unconstitutionally duplicates an element of the underlying offense of capital felony murder. Woodard v. Sargent, 806 F.2d 153 (8th Cir. 1986) (decision under prior law).

In a conviction upon defendant's having slain two persons, “pecuniary gain” would be a permissible aggravating circumstance. Perry v. Lockhart, 656 F. Supp. 46 (E.D. Ark. 1986), aff'd in part, reversed in part, 871 F.2d 1384 (8th Cir. Ark. 1989).

In the death-row inmate's capital murder trial, the pecuniary gain statutory aggravating factor did not unconstitutionally fail to narrow the class of death-eligible offenders on the ground that it merely duplicated an element of the underlying crime of felony murder during the course of a robbery, because the jury in the inmate's case was not instructed that the felony underlying the charge of capital murder was robbery; rather, the jury was instructed that the underlying felony was kidnapping, pursuant to subdivision (a)(1)(iii) of this section, and that, consistent with the statutory definition of kidnapping under § 5-11-102(a)(3)-(5), it had to find that the inmate had restrained the victim with the purpose of inflicting physical injury upon her or engaging in sexual intercourse or sexual contact, or of committing aggravated robbery or any flight thereafter. After convicting the inmate of capital murder, the jury found in the penalty phase that he committed the murder for pecuniary gain, consistent with § 5-4-604(6); thus, there was no duplication of constitutional dimension or otherwise. Williams v. Norris, 576 F.3d 850 (8th Cir. 2009).

After defendant's conviction of capital murder, the jury that sentenced him to death properly found the existence of aggravating factors involving cruelty and depravity, as evidence that defendant broke into the victim's apartment, waited hours for her to return, and then viciously attacked her as she walked in the door, stabbing her several times, was sufficient to prove the murder was especially cruel or depraved. Marcyniuk v. State, 2010 Ark. 257, 373 S.W.3d 243 (2010).

Agreement to Kill.

Subdivision (a)(7) does not require that an actual exchange of something for value take place in order to establish the offense; proof is only necessary that there be an agreement to kill in exchange for something of value. Orsini v. State, 281 Ark. 348, 665 S.W.2d 245 (1984), cert. denied, Orsini v. Arkansas, 469 U.S. 847, 105 S. Ct. 162, 83 L. Ed. 2d 98 (1984), US Supreme Court cert. denied, Orsini v. Arkansas, 523 U.S. 1099, 118 S. Ct. 1568, 140 L. Ed. 2d 801 (1998).

Evidence as to the existence of an agreement between murderer and defendant to cause the death held insufficient to support a conviction of capital felony murder. Ketelson v. State, 317 Ark. 324, 877 S.W.2d 910 (1994).

Another Person.

The statutory phrase “another person” means a person other than the defendant himself. Mitchell v. State, 306 Ark. 464, 816 S.W.2d 566 (1991).

Appeal.

Defendant's argument on appeal that there was insufficient evidence to support the underlying felony of aggravated robbery was not considered where defendant failed to preserve this point for review under the procedure required by ARCrP 36.21(b). Davis v. State, 320 Ark. 329, 896 S.W.2d 438 (1995).

Appellate Review.

Although the jury should be instructed that circumstantial evidence must be consistent with the guilt of the defendant and inconsistent with any other reasonable conclusion, the standard on appeal is to determine whether the verdict is supported by substantial evidence, which means whether the jury could have reached its conclusion without resorting to speculation or conjecture. Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996), cert. denied, Echols v. Arkansas, 520 U.S. 1244, 117 S. Ct. 1853, 137 L. Ed. 2d 1055 (1997).

An automatic review of the entire record in all death-penalty cases is useful when evaluating whether a defendant's waiver of his right to appeal was proper under Franz v. State, 296 Ark. 181, 754 S.W.2d 839 (1988). Such a review would also enable the court to determine (1) whether any errors raised in the trial court are prejudicial to the defendant, in accordance with Ark. Code Ann. § 16-91-113(a) (1987) and Ark. Sup. Ct. R. 4-3(h); (2) whether any plain errors covered by the exceptions outlined in Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980), have occurred; and (3) whether other fundamental safeguards were followed. State v. Smith, 340 Ark. 257, 12 S.W.3d 629 (2000).

Assistance of Counsel.

Where the defendant's attorney failed to notify him as to the trial date and as a result the defendant missed the first day of trial, and during the defendant's absence, counsel stipulated to the cause of death and to allow the State Crime Laboratory report into evidence, the defendant was denied effective assistance of counsel as counsel lost for the defendant the right to cross-examination, which probably would have proved that the shotgun blast fired by the defendant did not strike the victim directly, and if there were any intervening events which caused or contributed to the victim's death. Mason v. State, 289 Ark. 299, 712 S.W.2d 275 (1986).

Where the defendant's attorney did not notify him of the trial date and, as a result, the defendant missed the first day of trial, the defendant was denied effective assistance of counsel, even though the attorney waived the defendant's presence as a matter of trial strategy, because the defendant was not able to participate in any manner in the selection of jurors taken the first day. Mason v. State, 289 Ark. 299, 712 S.W.2d 275 (1986).

Trial court did not clearly err when it found that appellant's guilty plea was voluntarily and intelligently entered because trial counsel was not ineffective for allegedly pressuring appellant into pleading guilty to avoid the death penalty; although appellant argued that the prosecutor had not filed notice of intent to seek the death penalty, the circumstances surrounding the death of the victim and her unborn child supported trial counsel's reasonable belief that appellant faced a potential death sentence. True v. State, 2017 Ark. 323, 532 S.W.3d 70 (2017).

Burden of Proof.

Nothing in either this section or § 5-10-102 relieves the state from proving each element necessary to constitute a higher degree of culpability than the first-degree murder statute in trying a case under the capital murder statute, and nothing relieved the state of the absolute burden of proving each element of the offense beyond a reasonable doubt. Wilson v. State, 271 Ark. 682, 611 S.W.2d 739 (1981).

Subsection (b) does not impermissibly absolve the state of the duty of proving any element of capital felony murder beyond a reasonable doubt, and trial court did not err in failing to submit the affirmative defense as ordinary defense without burden of proof being placed on defendant. Moss v. State, 280 Ark. 27, 655 S.W.2d 375 (1983), cert. denied, Moss v. Arkansas, 465 U.S. 1105, 104 S. Ct. 1606, 80 L. Ed. 2d 135 (1984).

The burden on the defendant to prove an affirmative defense, such as the affirmative defense of nonparticipation does not arise until the State has met its burden of proof as to the elements of the offense. Moss v. State, 280 Ark. 27, 655 S.W.2d 375 (1983), cert. denied, Moss v. Arkansas, 465 U.S. 1105, 104 S. Ct. 1606, 80 L. Ed. 2d 135 (1984); Breault v. State, 280 Ark. 372, 659 S.W.2d 176 (1983).

In a prosecution for capital murder, the burden on the defendant to prove an affirmative defense by preponderance of the evidence does not arise until after the state has proved every element of capital felony murder beyond a reasonable doubt. Fairchild v. State, 284 Ark. 289, 681 S.W.2d 380 (1984), cert. denied, Fairchild v. Arkansas, 471 U.S. 1111, 105 S. Ct. 2346 (1985).

The state was required to prove beyond a reasonable doubt all the elements of the offense of capital murder; proof of the nonexistence of the affirmative defense of self-induced intoxication was not constitutionally required. Pruett v. State, 287 Ark. 124, 697 S.W.2d 872 (1985).

Proof of either robbery/murder or multiple killings is sufficient to convict of capital murder and make the defendant death-eligible. Perry v. Lockhart, 656 F. Supp. 46 (E.D. Ark. 1986), aff'd in part, reversed in part, 871 F.2d 1384 (8th Cir. Ark. 1989).

The state is not required to prove premeditation and deliberation for a conviction under subdivision (a)(9) of this section. Davis v. State, 325 Ark. 96, 925 S.W.2d 768 (1996).

To establish the requisite mens rea for capital murder, the State had prove that defendant had the conscious object to cause the victim's death, that such an intention was formed before he acted, and that he weighed in his mind the consequences of his course of conduct. Thornton v. State, 2014 Ark. 157, 433 S.W.3d 216 (2014).

Child Abuse.

Evidence, although circumstantial, that defendant engaged in cruel, malicious, and continuous course of child abuse culminating in a violent act that caused a child's death held sufficient to sustain a conviction under subdivision (a)(9) of this section. Davis v. State, 325 Ark. 96, 925 S.W.2d 768 (1996).

There was ample circumstantial evidence for the jury to find that defendant knowingly caused the death of the infant. Steggall v. State, 340 Ark. 184, 8 S.W.3d 538 (2000).

Death Penalty.

The defendant's death sentence, which was based in part on the pecuniary-gain aggravating circumstance, was set aside, even though his case was decided before Collins v. Lockhart, 754 F.2d 258 (8th Cir.), cert. denied — U.S. —, 106 S. Ct. 546, 88 L. Ed. 2d 475 (1985), which held that the pecuniary-gain aggravating circumstance could not be used to impose the death penalty for a murder in the course of a robbery where the defendant's counsel urged this argument when the action was first appealed. Woodard v. Sargent, 806 F.2d 153 (8th Cir. 1986) (decision under prior law).

Because the aggravating circumstance of pecuniary gain is invalid as applied in cases of capital felony murder committed during the course of robberies, the death penalties imposed against the defendants were invalid and set aside, where this argument was made when the actions were first appealed. Ruiz v. Lockhart, 806 F.2d 158 (8th Cir. 1986).

The capital felony murder statute does not amount to a mandatory death sentence because the jury cannot show mercy regardless of its findings. Burnett v. State, 295 Ark. 401, 749 S.W.2d 308 (1988).

Evidence sufficient to find that the death penalty was not freakishly or arbitrarily applied. Davis v. State, 314 Ark. 257, 863 S.W.2d 259 (1993), cert. denied, Davis v. Arkansas, 511 U.S. 1026, 114 S. Ct. 1417 (1994).

In defendant's trial for capital murder, the testimony of the victim's father, two sisters, and one of her children was not unduly prejudicial but rather was relevant to show the impact her death had on her family, which was precisely the purpose envisioned by the Arkansas General Assembly in enacting § 5-4-602(4); thus, the trial court did not abuse its discretion in admitting victim-impact evidence during defendant's sentencing because such evidence was relevant under the Arkansas capital-murder-sentencing process. Springs v. State, 368 Ark. 256, 244 S.W.3d 683 (2006), cert. denied, 550 U.S. 939, 127 S. Ct. 2257, 167 L. Ed. 2d 1100 (2007).

Where defendant was sentenced to death after his conviction of capital murder, as the jury acknowledged that he suffered from borderline-personality disorder and generalized anxiety disorder but found that those disorders did not prevent from being able to conform his behavior to the law and that he was not under extreme mental or emotional disturbance at the time of the murder, the trial court met its obligation to bring before the jury mitigating factors regarding defendant's mental disease or defect. Marcyniuk v. State, 2010 Ark. 257, 373 S.W.3d 243 (2010).

Degree of Offense.

The homicide statutes do not confer arbitrary power upon prosecutors and juries to select between capital murder and murder in the first degree. Cromwell v. State, 269 Ark. 104, 598 S.W.2d 733 (1980).

Double Jeopardy.

In proving the specified underlying felony, there must be proof of the same or less than all of the elements required to establish the commission of the capital offense and the specified felony is thus an included offense which falls within the double conviction prohibition of § 5-1-110, and the double jeopardy prohibition of the Fifth Amendment of the United States Constitution. Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981).

It was illegal to enter a judgment of conviction for both attempted capital felony murder and aggravated robbery when the aggravated robbery was the underlying specified felony to the charge of attempted capital murder, because aggravated robbery is a lesser included offense and in proving the elements of attempted capital murder, it was necessary to prove the elements of aggravated robbery; therefore, the conviction and sentence for aggravated robbery would be set aside. Rowe v. State, 275 Ark. 37, 627 S.W.2d 16 (1982), superseded by statute as stated in, Van Jenkins v. State, 2017 Ark. 288, 529 S.W.3d 236 (2017).

Where the defendant was convicted and sentenced for both attempted capital murder and aggravated robbery, his conviction and sentence for the lesser included offense of aggravated robbery had to be set aside since aggravated robbery was the underlying specified felony to the charge of attempted capital murder. Barnum v. State, 276 Ark. 477, 637 S.W.2d 534 (1982), superseded by statute as stated in, Walker v. State, 353 Ark. 12, 110 S.W.3d 752 (2003).

Defendant was properly convicted of capital murder and arson after he told a neighbor that his trailer home exploded while his girlfriend was inside; the constitutional prohibition against double jeopardy was not violated because § 5-1-110(d)(1)(A) permitted a sentence for both crimes. Meadows v. State, 358 Ark. 396, 191 S.W.3d 527 (2004).

Defendant convicted of capital murder, attempted capital murder, and aggravated robbery failed to show that his double jeopardy rights were violated; under subdivision (d)(1)(A) of this section, separate convictions and sentences were authorized for both the capital murder and the felony underlying the capital-murder charge. Jackson v. State, 2013 Ark. 19 (2013).

Defendant convicted of capital murder, attempted capital murder, and aggravated robbery failed to show that his double jeopardy rights were violated; under subdivision (d)(1)(A) of this section, separate convictions and sentences were authorized for both the capital murder and the felony underlying the capital-murder charge. Jackson v. State, 2013 Ark. 19 (2013).

Evidence.

Photographs of victim and crime scene held admissible. Rodgers v. State, 261 Ark. 293, 547 S.W.2d 419 (1977); Hulsey v. State, 261 Ark. 449, 549 S.W.2d 73 (1977), cert. denied, 439 U.S. 882, 58 L. Ed. 2d 194 (1978) (preceding decisions under prior law); Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979), cert. denied, 449 U.S. 852, 101 S. Ct. 144, 66 L. Ed. 2d 64 (1980); Gruzen v. Arkansas, 459 U.S. 1020, 103 S. Ct. 386, 74 L. Ed. 2d 517 (1982); Couch v. State, 274 Ark. 29, 621 S.W.2d 694 (1981); Hill v. State, 275 Ark. 71, 628 S.W.2d 284 (1982), cert. denied, Hill v. Arkansas, 459 U.S. 882, 103 S. Ct. 180 (1982); Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982); Fairchild v. State, 284 Ark. 289, 681 S.W.2d 380 (1984), cert. denied, Fairchild v. Arkansas, 471 U.S. 1111, 105 S. Ct. 2346 (1985); Holland v. State, 288 Ark. 435, 706 S.W.2d 375 (1986); Hendrickson v. State, 290 Ark. 319, 719 S.W.2d 420 (Ark. 1986); Parker v. State, 300 Ark. 360, 779 S.W.2d 156 (1989), cert. denied, Parker v. Arkansas, 498 U.S. 883, 111 S. Ct. 218 (1990).

Evidence was sufficient to establish the motive for the crime. Bush v. State, 261 Ark. 577, 550 S.W.2d 175 (1977).

Evidence held insufficient to support the charge of murder. Bly v. State, 263 Ark. 138, 562 S.W.2d 605 (1978); Pickens v. State, 301 Ark. 244, 783 S.W.2d 341 (1990), cert. denied, Pickens v. Arkansas, 497 U.S. 1011, 110 S. Ct. 3257 (1990).

Evidence held sufficient to support the defendant's conviction. Swindler v. State, 267 Ark. 418, 592 S.W.2d 91 (1979), cert. denied, 449 U.S. 1057, 101 S. Ct. 630, 66 L. Ed. 2d 511 (1980); Titus v. State, 268 Ark. 9, 593 S.W.2d 164 (1980); Wallace v. Lockhart, 701 F.2d 719 (8th Cir. 1983), cert. denied, 464 U.S. 934, 104 S. Ct. 340, 78 L. Ed. 2d 308 (1983); Simmons v. State, 278 Ark. 305, 645 S.W.2d 680 (1983), cert. denied, Simmons v. Arkansas, 464 U.S. 865, 104 S. Ct. 197, 78 L. Ed. 2d 173 (1983); Surridge v. State, 279 Ark. 183, 650 S.W.2d 561 (1983); Moore v. State, 280 Ark. 222, 656 S.W.2d 698 (1983); Hayes v. State, 278 Ark. 211, 645 S.W.2d 662 (1983), cert. denied, Hayes v. Arkansas, 464 U.S. 865, 104 S. Ct. 198, 78 L. Ed. 2d 173 (1984); Thrash v. State, 291 Ark. 575, 726 S.W.2d 283 (1987); Cassell v. Lockhart, 886 F.2d 178 (8th Cir. 1989), cert. denied, 493 U.S. 1092, 110 S. Ct. 1164 (1990); Ferguson v. State, 298 Ark. 600, 769 S.W.2d 418 (1989); Owens v. State, 300 Ark. 73, 777 S.W.2d 205 (1989); Remeta v. State, 300 Ark. 92, 777 S.W.2d 833 (1989); Thomas v. State, 300 Ark. 103, 776 S.W.2d 821 (1989); Bussard v. State, 300 Ark. 174, 778 S.W.2d 213 (1989); Findley v. State, 300 Ark. 265, 778 S.W.2d 624 (1989); Sellers v. State, 300 Ark. 280, 778 S.W.2d 603 (1989); Segerstrom v. State, 301 Ark. 314, 783 S.W.2d 847 (1990); Burkhart v. State, 301 Ark. 543, 785 S.W.2d 460 (1990); Wainwright v. State, 302 Ark. 371, 790 S.W.2d 420 (1990), cert. denied, Wainwright v. Arkansas, 499 U.S. 913, 111 S. Ct. 1123 (1991); Sanders v. State, 308 Ark. 178, 824 S.W.2d 353 (1992); Moss v. Lockhart, 971 F.2d 77 (8th Cir. 1992); Jones v. State, 314 Ark. 289, 862 S.W.2d 242 (1993); Hall v. State, 315 Ark. 385, 868 S.W.2d 453 (1993); Trimble v. State, 316 Ark. 161, 871 S.W.2d 562 (1994); Pike v. State, 323 Ark. 56, 912 S.W.2d 431 (1996); Weaver v. State, 324 Ark. 290, 920 S.W.2d 491 (1996); Slocum v. State, 325 Ark. 38, 924 S.W.2d 237 (1996); Key v. State, 325 Ark. 73, 923 S.W.2d 865 (1996); Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999); King v. State, 338 Ark. 591, 999 S.W.2d 183 (1999); Carmichael v. State, 340 Ark. 598, 12 S.W.3d 225 (2000); Flowers v. State, 342 Ark. 45, 25 S.W.3d 422 (2000); Arnett v. State, 342 Ark. 66, 27 S.W.3d 721 (2000); Hutts v. State, 342 Ark. 278, 28 S.W.3d 265 (2000); Branscum v. State, 345 Ark. 21, 43 S.W.3d 148 (2001).

Evidence held sufficient to find that the trial court's ruling that there was no evidence to indicate a lesser degree of murder was error. Brewer v. State, 271 Ark. 254, 608 S.W.2d 363 (1980); Hughes v. State, 303 Ark. 340, 797 S.W.2d 419 (1990).

Evidence sufficient to find that officer was acting in the line of duty as required by subdivision (a)(2) (now subdivision (a)(3)). Renton v. State, 274 Ark. 87, 622 S.W.2d 171 (1981).

Prosecutor's attempt to introduce photograph of victim's body, which had been ruled inadmissible, did not constitute reversible error where the court sustained defense counsel's objections and the photograph was never viewed by the jury. Singleton v. State, 274 Ark. 126, 623 S.W.2d 180 (1981), cert. denied, Singleton v. Arkansas, 456 U.S. 938, 102 S. Ct. 1996, 72 L. Ed. 2d 458 (1982), cert. denied, Singleton v. Arkansas, 459 U.S. 882, 103 S. Ct. 184 (1982).

Evidence relating to motive and intent held admissible. Edgemon v. State, 275 Ark. 313, 630 S.W.2d 26 (1982), aff'd, 292 Ark. 465, 730 S.W.2d 898 (1987); Henry v. State, 278 Ark. 478, 647 S.W.2d 419 (1983), cert. denied, Henry v. Arkansas, 464 U.S. 835, 104 S. Ct. 121 (1983); Orsini v. State, 281 Ark. 348, 665 S.W.2d 245 (1984), cert. denied, Orsini v. Arkansas, 469 U.S. 847, 105 S. Ct. 162, 83 L. Ed. 2d 98 (1984), US Supreme Court cert. denied, Orsini v. Arkansas, 523 U.S. 1099, 118 S. Ct. 1568, 140 L. Ed. 2d 801 (1998); Henderson v. State, 284 Ark. 493, 684 S.W.2d 231 (1985).

Circumstantial evidence alone may be sufficient to support a conviction for capital felony murder since the law makes no distinction between circumstantial evidence and direct evidence. Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982).

Where defendant was the last person to see his ex-girlfriend alive, admitted to accidentally shooting her, and was seen near the scene of the crime, the evidence was sufficient to support his conviction for capital murder. Barrett v. State, 354 Ark. 187, 119 S.W.3d 485 (2003).

Evidence was sufficient to convict defendant of capital murder; defendant's admission to strangling the victim and the use of duct tape over the mouth and nose of the victim constituted substantial evidence supporting the jury's conclusion of guilt, and there was evidence that defendant weighed what he was about to do and that he engaged in planning prior to the murder. O'Neal v. State, 356 Ark. 674, 158 S.W.3d 175 (2004).

Defendant's conviction for the capital murder of an 87-year-old woman, who was found shot to death in her yard, was upheld where defendant confessed to police that he “shot the old lady in the back.” Anderson v. State, 357 Ark. 180, 163 S.W.3d 333 (2004).

Evidence held not exculpatory. Simmons v. Lockhart, 626 F. Supp. 872 (E.D. Ark. 1985), aff'd, 814 F.2d 504 (8th Cir. 1987).

Defendant waives any objections to use of statement made by him to police by placing it in evidence. Williams v. State, 288 Ark. 444, 705 S.W.2d 888 (1986).

Defendant held not prejudiced at trial by codefendant's refusal to answer deposition questions. Williams v. State, 288 Ark. 444, 705 S.W.2d 888 (1986).

Testimony of confessed accomplice held sufficiently corroborated. Holland v. State, 288 Ark. 435, 706 S.W.2d 375 (1986).

Evidence held sufficient to show premeditation and deliberation. Watson v. State, 289 Ark. 138, 709 S.W.2d 817 (1986); Farris v. State, 308 Ark. 561, 826 S.W.2d 241 (1992).

Evidence defendant was serving prison sentence held not error. Rhodes v. State, 290 Ark. 60, 716 S.W.2d 758 (1986).

Defendant's involuntary statement cannot be used by state in cross-examination of defense witness. Hendrickson v. State, 290 Ark. 319, 719 S.W.2d 420 (Ark. 1986).

Defendant's statement to police, although inadmissible as evidence during the state's case-in-chief, could be used by the prosecuting attorney in cross-examination and impeachment of defense witness. Hendrickson v. State, 290 Ark. 319, 719 S.W.2d 420 (Ark. 1986).

In prosecution for capital felony murder, the trial court did not abuse its discretion in admitting several color photographs of the victim, who had been strangled in an abandoned building in subfreezing weather, placed on a heap of trash, and burned, where the medical examiner testified the photographs especially supported his conclusions. Watson v. State, 290 Ark. 484, 720 S.W.2d 310 (1986).

In prosecution for capital felony murder, the jury could consider the defendant's statements, which at first were denial, then an admission of being there and then a statement that he burned the body to hide the evidence; a jury may consider and give weight to any false, improbable, and contradictory statements made by an accused explaining suspicious circumstances. Watson v. State, 290 Ark. 484, 720 S.W.2d 310 (1986).

Prejudicial error in allowing confession to be introduced into evidence required reversal. Rose v. State, 294 Ark. 279, 742 S.W.2d 901 (1988).

It was error to have permitted the jury to find defendant guilty of capital murder on the basis that it was committed in the course of burglary where the jury was not allowed to consider the robbery or any purpose for the entry of the victim's home independent of the acts which resulted in his death. Sellers v. State, 295 Ark. 489, 749 S.W.2d 669 (1988).

Where the petitioner was charged with three forms of capital murder, since the form only required a finding of guilty or not guilty and because there was ample evidence to sustain the first two theories, the petitioner failed to demonstrate prejudice. O'Rourke v. State, 298 Ark. 144, 765 S.W.2d 916 (1989).

Proof of aggravated burglary, committed by the defendant an hour after the offense he was on trial for, was clearly admissible as being relevant to prove both his intent and plan, as well as his identity, in the commission of the first incident because it was so factually intertwined with the present offense, although the circumstantial evidence was amply sufficient to connect the defendant with the first incident. Gillie v. State, 305 Ark. 296, 808 S.W.2d 320 (1991).

Circumstantial evidence, consisting of the close proximity of time and place of the killing and the taking of the decedent's property so as to make it all one transaction, was sufficient to allow the jury to conclude the killing occurred in the course of robbery. Patterson v. State, 306 Ark. 385, 815 S.W.2d 377 (1991).

The trial court's decision to allow witness' in-court identification, irrespective of his prior encounter with the defendant at the police station, was proper where there was no evidence suggesting that the police brought the defendant to the station to facilitate an identification by the witness; the witness made his initial identification spontaneously and before the defendant was brought inside the building; and he could not have known for certain that the person who was getting out of the sheriff's car was indeed the suspect in that crime. Van Pelt v. State, 306 Ark. 624, 816 S.W.2d 607 (1991).

The robbery and murder did not have to occur within a brief interval of time to support a capital murder conviction. Findley v. State, 307 Ark. 53, 818 S.W.2d 242 (1991).

Inflammatory photographs are admissible if they tend to shed light on an issue, enable a witness to better describe the objects portrayed, or enable the jury to better understand the testimony. Hickson v. State, 312 Ark. 171, 847 S.W.2d 691 (1993).

Where the trial court considered the questioned photographs, each individually, on two separate occasions at a pre-trial conference and again at trial, it did not admit the photographs with “carte blanche” approval, or with a manifest abuse of its discretion. Hickson v. State, 312 Ark. 171, 847 S.W.2d 691 (1993).

Where the trial court twice considered the admissiblity of a videotape of the crime scene showing the house and the body, and placed limitations on the portions that could be published to the jury, it did not abuse its discretion in admitting the tape into evidence. Hickson v. State, 312 Ark. 171, 847 S.W.2d 691 (1993).

The evidence of robbery and intent to rob held sufficient to support a conviction for capital murder. Owens v. State, 313 Ark. 520, 856 S.W.2d 288 (1993).

Evidence was sufficient to sustain capital murder conviction, even though it was almost all circumstantial. Davis v. State, 314 Ark. 257, 863 S.W.2d 259 (1993), cert. denied, Davis v. Arkansas, 511 U.S. 1026, 114 S. Ct. 1417 (1994).

Defendant's flight to avoid arrest could be considered as corroboration of evidence tending to establish his guilt of capital murder. Davis v. State, 314 Ark. 257, 863 S.W.2d 259 (1993), cert. denied, Davis v. Arkansas, 511 U.S. 1026, 114 S. Ct. 1417 (1994).

Where the weapon used was a .22 caliber semi-automatic rifle with a sawed off stock, the victim suffered five bullet wounds, two entered his front and three entered his back, the nature and manner of use of the weapon was sufficient to support the capital murder verdict. Buchanan v. State, 315 Ark. 227, 866 S.W.2d 395 (1993).

The mere presence of human blood found by luminol testing, without factors which relate that evidence to the crime, is not admissible. Palmer v. State, 315 Ark. 696, 870 S.W.2d 385 (1994).

Defendant's conviction for conspiracy to commit capital murder was supported by substantial evidence. Jones v. State, 45 Ark. App. 28, 871 S.W.2d 403 (1994).

A videotape which showed the crime scene and shed light on the violence done and photographs of crime scene and victim were admissible where they showed the nature and extent of the wounds, which was relevant to a showing of intent, as intent may be inferred from the type of weapon used, the manner of use, and the nature, extent, and location of the wounds, and where they also helped the state prove an element of its case against appellant — the requisite level of intent associated with capital murder. Williams v. State, 316 Ark. 694, 874 S.W.2d 369 (1994).

Evidence of defendant's identification held sufficient to sustain conviction. Jacobs v. State, 316 Ark. 698, 875 S.W.2d 52 (1994).

Defendant's admission of active participation in the rape and murder of victim, along with the evidence that defendant was seen with victim on the night she disappeared, was sufficient to sustain the conviction. Evans v. State, 317 Ark. 449, 879 S.W.2d 409 (1994).

Even if the trial court had erred in admitting items seized in a motel room, the other evidence of defendant's guilt overwhelming supported the convictions for aggravated robbery and capital murder. Rockett v. State, 318 Ark. 831, 890 S.W.2d 235 (1994), overruled, MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998).

Conviction for felony murder supported by substantial, albeit not overwhelming, evidence where circumstantial evidence rather than direct evidence placed defendant at the scene. Hill v. Norris, 96 F.3d 1085 (8th Cir. 1996).

Gang-affiliation evidence held admissible to show motive. Scott v. State, 325 Ark. 267, 924 S.W.2d 248 (1996).

Even assuming witness was an accomplice to the murder, there was sufficient corroborative evidence presented to connect defendant to the murder. Choate v. State, 325 Ark. 251, 925 S.W.2d 409 (1996).

Evidence of capital murder held sufficient where five witnesses testified that defendant had confessed to shooting the victim and where evidence found around victim's body indicated that he had been shot by a rifle owned by the defendant. Ferrell v. State, 325 Ark. 455, 929 S.W.2d 697 (1996).

Testimony of accomplice to the victim's kidnapping prior to the murder was sufficiently corroborated to support defendant's conviction for first-degree murder. Peeler v. State, 326 Ark. 423, 932 S.W.2d 312 (1996).

Statement containing knowledge of crime not known by the general public accompanied by witness' overhearing a direct confession was sufficient to sustain conviction for capital murder. Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996), cert. denied, Echols v. Arkansas, 520 U.S. 1244, 117 S. Ct. 1853, 137 L. Ed. 2d 1055 (1997).

Where the State's theory was that the murders were cult-related, and there was additional evidence about occult practices, a book about the occult and evidence that the defendant had been seen dressed like a wizard provided a circumstantial link and was therefore relevant. Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996), cert. denied, Echols v. Arkansas, 520 U.S. 1244, 117 S. Ct. 1853, 137 L. Ed. 2d 1055 (1997).

Videotape, photographs of the crime scene, and two autopsy photographs aided the jury's perception of the crime scene and condition of the victims' bodies and was relevant in establishing premeditation and deliberation. Camargo v. State, 327 Ark. 631, 940 S.W.2d 464 (1997); Lever v. State, 333 Ark. 377, 971 S.W.2d 762 (1998).

Evidence of drug use and drug dealing was clearly intermingled and contemporaneous with the arson, culminating in the commission of the crimes charged, and as such, it was part of the res gestae and admissible as an exception to Rule 404(b). Gaines v. State, 340 Ark. 99, 8 S.W.3d 547 (2000).

The evidence established not only that defendant had every opportunity and motive to kill the victims, but also then destroyed evidence relating to their disappearance, so that the mens rea suggested by the details of the killings satisfied the requirements of premeditated and deliberate purpose. Sanders v. State, 340 Ark. 163, 8 S.W.3d 520 (2000).

Evidence of capital murder held sufficient where defendant was present at the crime scene, knew the robbery of the victim's store had been planned and where defendant's attempts to evade the police officers corroborated his guilt. Ross v. State, 346 Ark. 225, 57 S.W.3d 152 (2001).

Evidence presented at trial was sufficient to sustain defendant's capital murder conviction where: (1) defendant admitted firing three to four shots at the victim while the victim was outside a convenience store where the victim's death occurred; (2) the jury could have used those circumstances to infer that defendant acted with premeditated and deliberate intent; and (3) a witness heard defendant confess to murdering the victim. Jenkins v. State, 348 Ark. 686, 75 S.W.3d 180 (2002).

In a criminal prosecution for first-degree murder, the trial court did not abuse its discretion in allowing tattoo evidence at trial; the tatoo, which read “Death Before Dishonor,” was probative of defendant's motive in the shooting the victim following an altercation. Morris v. State, 358 Ark. 455, 193 S.W.3d 243 (2004).

Where, following an altercation in the parking lot of a nightclub, defendant's car and victim's car were side by side at an intersection, defendant believed he saw a gun pointed at him from the victim's car, and defendant shot into the other car two or three times, striking and killing the victim, the evidence was suffiicent to convict defendant of first-degree murder. Morris v. State, 358 Ark. 455, 193 S.W.3d 243 (2004).

Evidence was sufficient to sustain a conviction for attempted capital murder where there was substantial evidence that defendant was not merely engaged in the “act of driving”; the victim, a police officer, testified that the driver attempted to run him over, he observed a flash from the passenger side window, he realized that he had heard a gunshot, and an officer identified defendant as the driver of the vehicle. Clark v. State, 358 Ark. 469, 192 S.W.3d 248 (2004).

Jury could infer that defendant shot the victim in order to steal drugs and money from the victim, based on defendant's own account of what occurred; thus, there was substantial evidence that defendant shot and killed the victim during the course of, and in furtherance of, an aggravated robbery. Harper v. State, 359 Ark. 142, 194 S.W.3d 730 (2004).

Evidence was sufficient to convict defendant of criminal attempt to commit capital murder where (1) while searching for a suspect, the trooper stopped in the middle of a street and observed a vehicle 30-40 yards away; (2) the vehicle began moving towards the trooper with its headlights on; (3) the trooper then observed a flash from the passenger-side window and heard a pop, which he thought was a gunshot; (4) the trooper believed that he was shot at because he was the only person on the street at 1:30 a.m.; (5) the vehicle was later stopped and a spent shell casing that was found inside the vehicle on the passenger side matched a weapon that was found about a block and a half away from where the vehicle ultimately stopped; and (6) witnesses testified that defendant and the driver had just left the home of the suspect's aunt, whom the trooper had been previously chasing. Simmons v. State, 89 Ark. App. 34, 199 S.W.3d 711 (2004).

Where witness testified that (1) he was in victim's home the day of the murder, (2) defendant arrived with a folding knife and entered victim's bedroom, (3) the victim screamed, (4) defendant's husband stated that defendant had killed the victim, and (5) the witness saw the husband take a can of kerosene from the front porch, there was substantial evidence in support of the jury's conviction of defendant for capital murder and arson. Meadows v. State, 360 Ark. 5, 199 S.W.3d 634 (2004).

Evidence showing that appellant formed a plan to lure the victim into his vehicle with the purpose of injuring or killing him, and that the victim died under circumstances manifesting extreme indifference to the value of human life, was sufficient to support appellant's conviction of capital felony murder, with the underlying charge of kidnapping. Ridling v. State, 360 Ark. 424, 203 S.W.3d 63 (2005).

Evidence clearly supported the state's charges that defendant acted with premeditation and deliberation in the murder of the victim; the state demonstrated that defendant tried to clear the potential witnesses away from the area, pulled the victim into the house against his wishes, closed the door so the act could not be seen, helped dispose of the body and had the victim's car towed away from in front of his house. Woods v. State, 363 Ark. 272, 213 S.W.3d 627 (2005).

Defendant's conviction for capital murder under subdivision (a)(4) of this section was affirmed as the trial court did not err in denying defendant's directed verdict motion; there was ample testimony from eyewitnesses and an assistant medical examiner regarding defendant's shooting of the unarmed victim to support the jury's finding of premeditated and deliberated capital murder in spite of defendant's contention of self-defense. Stenhouse v. State, 362 Ark. 480, 209 S.W.3d 352 (2005).

Trial court did not err by denying defendant's motion for a directed verdict on his capital murder conviction because the evidence was sufficient to support defendant's conviction of the underlying felony, aggravated robbery, even after eliminating the testimony of one of defendant's accomplices. Evidence showed that: (1) defendant had the purpose of committing a theft with the use of physical force, as he and three other individuals went to a witness's house to acquire ammunition for their firearm; (2) the fourth individual testified that defendant and three men arrived at his trailer where defendant displayed a gun, and that he provided ammunition for the gun; (3) a second witness, one of the three men who accompanied defendant, testified that he heard two gunshots fired after the two other men left the victim's apartment after the struggle between defendant and the victim ensued; and (4) the chief medical examiner testified that the victim died from a gunshot wound. Gardner v. State, 362 Ark. 413, 208 S.W.3d 774 (2006).

Although the state was required to prove that defendant was in prison when he killed his cell mate to prove capital murder, that element could have been proven by stipulation and the trial court abused its discretion in allowing the state, over defendant's objections, to introduce evidence of his life sentence and convictions for rape, kidnapping, and burglary; the error was harmless, however, as defendant was not prejudiced by the evidence in that the jury did not sentence him to death but, rather, to a second life sentence. Diemer v. State, 365 Ark. 61, 225 S.W.3d 348 (2006).

In a capital murder and kidnapping case, evidence was sufficient to corroborate an accomplice’s testimony, such as testimony of other witnesses that one of the victims had stolen marijuana plants from defendant, that defendant instructed others to say he was at home at the time of the murders, and that defendant approached his nephew and told him that if he ever said anything about the victims he would get hurt; however, the case was reversed because the trial court improperly allowed evidence concerning other bad acts and reputation. Green v. State, 365 Ark. 478, 231 S.W.3d 638 (2006).

Where defendant was convicted of aggravated robbery and capital murder for killing a grocery store owner, the trial court did not err in denying defendant's motion for a directed verdict because the jury did not have to resort to speculation and conjecture as it apparently believed testimony from defendant's four friends concerning his actions and admissions on the night the crimes were committed and the next day when he fled. Whitt v. State, 365 Ark. 580, 232 S.W.3d 459 (2006).

Where evidence showed that (1) defendant walked back to the car to retrieve a gun and shot the victim in vital areas, (2) defendant made several inculpatory comments when he went back to the car, and (3) he fled from police, there was sufficient evidence to support a capital murder conviction. Davis v. State, 365 Ark. 634, 232 S.W.3d 476 (2006).

Defendant's conviction for capital murder was supported by substantial evidence where, pursuant to § 5-2-403(b)(1)-(2), he served as an accomplice to the murder by directing his brother to “come on down” from the attic because the victim moved, suggesting that his brother needed to finish killing the victim, which he did while defendant watched. Wilson v. State, 365 Ark. 664, 232 S.W.3d 455 (2006).

There was sufficient evidence to support convictions for aggravated robbery and capital murder based on defendant's admission that she held the victim's hands down while he was beaten inside an apartment during an alleged robbery and the testimony of an accomplice waiting outside; the accomplice testimony was sufficiently corroborated. Johnson v. State, 366 Ark. 8, 233 S.W.3d 123 (2006).

There was sufficient evidence to support a conviction under subdivision (a)(1) of this section where evidence showed that two murders were committed during a robbery, defendant made inculpatory statements regarding the robbery, the victims had a large amount of cash, and defendant made calls to their phone on the day of the shooting. Harris v. State, 366 Ark. 190, 234 S.W.3d 273 (2006).

Appellant's capital murder conviction was affirmed where a prosecution witness testified numerous times that he saw appellant shoot the victim; that testimony alone was enough to sustain the conviction, and it was for the jury to determine the credibility of another witness whose description of the shooter was inconsistent with that testimony. Gaye v. State, 368 Ark. 39, 243 S.W.3d 275 (2006).

Despite defendant's assertion that a shooting was accidental, a motion for a directed verdict was properly denied because there was sufficient evidence to support a conviction for capital murder under § 5-10-101(a)(4), based on the testimony of witnesses to the crime, a prior threat to kill the victim, and the fact that the victim was shot several times. The evidence showed that defendant went to the victim's apartment, hit her several times, and shot and killed her when friends tried to intervene. Boyd v. State, 369 Ark. 259, 253 S.W.3d 456 (2007).

Evidence was sufficient to sustain a capital murder conviction because defendant was with the victim the night before he was found dead in his recliner, there was blood splatter on his walls, an empty carton was found next to the victim's recliner that described a canister of pepper spray, and when defendant was arrested, a canister of pepper spray was found on defendant's person. The chief forensic DNA examiner testified that blood samples from defendant's jeans matched the genetic profile of the victim. Young v. State, 370 Ark. 147, 257 S.W.3d 870 (2007).

Directed verdict was properly denied because a jury entered a general verdict; therefore, it was impossible which part of this section defendant was convicted under. Since defendant's sufficiency challenge only went to proof of the underlying felony, there was sufficient evidence regarding the other elements of capital murder where defendant shot her husband while he slept and took his property. Terry v. State, 371 Ark. 50, 263 S.W.3d 528 (2007).

Defendant's conviction for capital murder was proper pursuant to subdivisions (a)(1) and (a)(1)(vi) of this section because defendant's own testimony indicated that he stabbed the victim and took his property as part of the same incident. The number of wounds, coupled with the testimony that there were some defensive and post-mortem wounds, was sufficient to show circumstances manifesting defendant's extreme indifference to the value of human life. Young v. State, 371 Ark. 393, 266 S.W.3d 744 (2007).

Defendant's capital-murder conviction in violation of subdivision (a)(4) of this section was appropriate because defendant stabbed the victim repeatedly, walked away, and then returned to stab him again. That testimony, along with other evidence showing the nature, location, and extent of the 45 knife wounds, permitted the jury to reasonably infer that defendant murdered the victim with both premeditation and deliberation. Winston v. State, 372 Ark. 19, 269 S.W.3d 809 (2007).

Evidence supported the notion that the victim's death was caused in the course of the aggravated robbery, and the manner of his death indicated that it was caused under circumstances manifesting extreme indifference to the value of human life; a witness's account of defendant's confession indicated that the victim was crying and pleading for his life before he was killed. Moore v. State, 372 Ark. 579, 279 S.W.3d 69 (2008).

At trial for capital murder and unlawful discharge of a firearm from a vehicle, witnesses' in-court identifications of defendant were not so unreliable that his conviction should be overturned because: (1) the jury clearly found the witnesses and their identifications of defendant credible; (2) defendant did not challenge or object to the witnesses' in-court identifications when they were made, but instead attempted to discredit their testimony on cross-examination; and (3) he merely challenged the in-court identifications in the context of his challenge to the sufficiency of the evidence. Davenport v. State, 373 Ark. 71, 281 S.W.3d 268 (2008).

Evidence was sufficient to convict defendant of capital murder and a terroristic act when a witness, a retired deputy sheriff, described the perpetrator of a shooting, and defendant matched the description; moreover, a witness testified as to a possible motive, and defendant's relative testified that defendant had asked the relative to lie for defendant. Stephenson v. State, 373 Ark. 134, 282 S.W.3d 772 (2008).

Substantial evidence supported the jury's verdict of premeditated and deliberated capital murder under subdivision (a)(4) of this section where defendant was identified by three separate witnesses as being in the house with the victim moments before the body was discovered and he was seen bending over the location of the body; a knife with the victim's blood on it was found close by the victim's body and defendant's footprints were in the blood at the scene. Sales v. State, 374 Ark. 222, 289 S.W.3d 423 (2008), cert. denied, Sales v. Arkansas, — U.S. —, 129 S. Ct. 2000, 173 L. Ed. 2d 1098 (2009).

Defendant's convictions for two counts of capital murder in violation of former § 41-1501(c) were appropriate because the evidence was sufficient since defendant's former wife testified that defendant was not home on the night in question, that a shotgun was missing, and that defendant told the wife's daughter that she would not have to return to her father's home. The child's father was one of the victims. Wertz v. State, 374 Ark. 256, 287 S.W.3d 528 (2008).

Where defendant's friend testified that defendant tried to rob the victim in his truck and shot him when he resisted, defendant's fingerprints were found on the truck and the blood on the gun matched defendant's DNA. Even if the friend was deemed an accomplice for purposes of §§ 5-2-403 and 16-89-111(e)(1)(A), the Supreme Court of Arkansas found sufficient corroborating evidence to support defendant's conviction for capital murder. Bush v. State, 374 Ark. 506, 288 S.W.3d 658 (2008).

Defendant's capital-murder conviction under subdivision (a)(4) of this section was appropriate because he admitted in his statement that he killed the victim and the fact that over a minute elapsed between the shot to the victim's thigh and the shot to the victim's head sufficiently showed premeditation and deliberation. Jackson v. State, 375 Ark. 321, 290 S.W.3d 574 (2009).

Defendant's conviction for attempted capital murder, in violation of subdivision (a)(4) of this section and § 5-3-201(a)(2), was supported by the evidence because the victim, defendant's wife, testified that he came into the garage demanding to talk to her, shot her, and commented that she should die; defendant's coworker testified that defendant stated that he was going to shoot his wife if she had any divorce papers. Johnson v. State, 375 Ark. 462, 291 S.W.3d 581 (2009), cert. denied, Johnson v. Arkansas, 558 U.S. 847, 130 S. Ct. 118, 175 L. Ed. 2d 77 (2009).

Defendant's capital-murder convictions in violation of subdivision (a)(4) of this section were appropriate because the evidence was sufficient to support an inference of premeditation and deliberation. One victim was shot multiple times and some of those shots were fired at close range; the other victim's gunshots to his neck originated from behind; and there was no evidence to indicate that defendant's self-defense argument was valid. Wallace v. State, 2009 Ark. 90, 302 S.W.3d 580 (2009).

Where three eyewitnesses testified and identified defendant as the person who fired the shot that killed the victim, his car also matched the description of the car driven by the shooter. The Supreme Court of Arkansas held that the evidence was sufficient to sustain the jury's verdict finding him guilty of murder; the trial court did not err by denying defendant's motion for a directed verdict. Page v. State, 2009 Ark. 112, 313 S.W.3d 7 (2009).

Defendant's convictions for two counts of capital murder in violation of subdivision (a)(4) of this section and two counts of kidnapping in violation of § 5-11-102(a) were appropriate, in part because evidence that defendant possessed a gun similar to that used in the murder was independently relevant proof on the issue of defendant's identity. Moreover, its probative value was not substantially outweighed by the danger of unfair prejudice. Gilcrease v. State, 2009 Ark. 298, 318 S.W.3d 70 (2009), appeal dismissed, 2011 Ark. 108 (2011).

Defendant's conviction of capital murder under subdivision (a)(9)(A) of this section was affirmed because the evidence, including testimony from a doctor that victim's injuries were not consistent with defendant's version of events and testimony of sergeant that defendant did not explain events until after he learned of injuries, was sufficient. Jackson v. State, 2009 Ark. 336, 321 S.W.3d 260 (2009).

In defendant's capital murder trial arising out of the beating death of the two-year-old child of defendant's girlfriend, the evidence, although circumstantial, was sufficient to support his conviction because it established that the child was in good physical condition when entrusted to defendant's care and that she suffered fatal injuries while in defendant's sole custody. The jury did not err in rejecting defendant's testimony that the child slipped and fell, hitting her head on the floor, because the doctors who treated the child testified that this explanation was implausible and was inconsistent with the head injuries suffered by the child; further, the child suffered extensive injuries over her entire body, and defendant offered no explanation for the origin of the many other significant injuries, which the doctors testified were the result of blunt force trauma. Smith v. State, 2009 Ark. 453, 343 S.W.3d 319 (2009).

Evidence was sufficient to show that defendant bound and robbed the victim, that he left her alone in the loft and fled, and that her death was a result of being bound, and defendant clearly intended to restrict the victim's ability to breath and abandon her in a perilous position, which culminated in her death; there was sufficient evidence to prove defendant deliberately engaged in life-threatening behavior. Sykes v. State, 2009 Ark. 522, 357 S.W.3d 882 (2009).

There was sufficient evidence that defendant killed a victim in the course and furtherance of a robbery and there was a nexus between the murder and the robbery where after striking both victims, defendant grabbed the robbery victim and demanded money. Norris v. State, 2010 Ark. 174, 368 S.W.3d 52 (2010), rehearing denied, — Ark. —, — S.W.3d —, 2010 Ark. LEXIS 292 (May 20, 2010).

In a capital murder prosecution, the trial court did not abuse its discretion by allowing the state to show the jury enlarged photos of the victim's body on a projection screen, as the photos illustrated the crime scene, autopsy photographs were used by the forensic examiner to explain the nature of the injuries and cause of death, and the court examined each photo and applied the proper balancing test. Marcyniuk v. State, 2010 Ark. 257, 373 S.W.3d 243 (2010).

Evidence was sufficient to convict defendant of the capital murder of a victim and theft of the victim's vehicle, including eyewitnesses who saw defendant driving the victim's car and saw him with a .45 caliber pistol, the same caliber that was used to kill the victim, at the time of the murder. Lockhart v. State, 2010 Ark. 278, 367 S.W.3d 530 (2010).

Defendant's conviction for capital murder, in violation of subdivision (a)(4) of this section, was supported by the evidence because the state presented evidence that defendant had grown weary of the victim's behavior, that defendant was intrigued by the idea of killing someone, that defendant believed the victim would be a good choice because of the victim's personality and circumstances, that defendant purchased a knife, that defendant approached the victim with the knife while the victim was passed out, and that defendant stabbed the victim five times. Pearcy v. State, 2010 Ark. 454, 375 S.W.3d 622 (2010).

Defendant's conviction for capital murder under subdivision (a)(4) of this section was supported by substantial evidence that included witness testimony that he had been looking for a victim on the day he was killed, he was in possession of a handgun, and he made threats against the victim. Evans v. State, 2011 Ark. 33, 378 S.W.3d 82 (2011).

Defendant's conviction for capital-murder under subdivision (a)(4) of this section was appropriate because the evidence was sufficient. When confronted with the inconsistencies between the testimony of his daughter's mother and defendant's testimony, the jury believed the mother and found that defendant acted with premeditation and deliberation by taking the shotgun to the house, walking to the porch, loading the gun, and firing at the victim after she threw her hands in surrender. Williams v. State, 2011 Ark. 432, 385 S.W.3d 157 (2011).

Defendant's conviction for capital-felony murder under subdivision (a)(1) of this section and § 5-12-103(a)(3) was appropriate because the evidence was sufficient. The last number dialed on the victim's cellular phone was to a phone registered to defendant and a fellow prisoner testified that defendant confessed to selling drugs to the victim, robbing and shooting him, and then leaving him on the road. Dixon v. State, 2011 Ark. 450, 385 S.W.3d 164 (2011).

Defendant's conviction for capital murder under subdivision (a)(4) of this section was proper because the circuit court did not err in denying his motion for a directed verdict. Defendant's stabbing of the victim brought about the officers' use of deadly force that killed the victim; had defendant not been stabbing her, the officers would not have attempted to end defendant's attack on her by using deadly force. Anderson v. State, 2011 Ark. 461, 385 S.W.3d 214 (2011).

Substantial evidence supported defendant's conviction for capital murder, in violation of subdivision (a)(1)(B) of this section, because the state offered evidence to corroborate defendant's confession; the state presented evidence that the murder victim died at the hands of another. Meadows v. State, 2012 Ark. 57, 386 S.W.3d 470 (2012).

Trial court did not err by denying defendant's motion for a directed verdict because the evidence was sufficient to support his capital murder conviction, as it showed that: (1) prior to the victim's death, defendant bragged to a witness that he was going to kill someone; (2) several hours later, an eyewitness was in the cab of the truck sitting between defendant and the victim when defendant began stabbing the victim repeatedly with a knife; (3) two other witnesses who stopped to help heard defendant admit that he had stabbed the victim and saw defendant toss the knife into the back of the truck; (4) one witness heard defendant tell the eyewitness that they needed to take the truck and get rid of the body; (5) the knife was recovered from the truck and blood on it matched the victim; (6) defendant identified the knife as his own; (7) the victim died as a result of multiple stab wounds that were consistent with the knife that was recovered from the truck; and (8) although there was testimony that defendant was intoxicated on the night of the murder, voluntary intoxication was not a defense. Leach v. State, 2012 Ark. 179, 402 S.W.3d 517 (2012).

Evidence was sufficient to sustain defendant's convictions for capital murder and aggravated robbery because defendant drove his accomplice to the victim's house, defendant admitted to hitting the victim over the head, and the evidence illustrated he wanted to harm the victim because he did it again after he stated that the victim was not fazed. Additionally, the victim's wallet was taken from the house. Laswell v. State, 2012 Ark. 201, 404 S.W.3d 818 (2012).

Evidence was sufficient to sustain convictions for capital murder and aggravated robbery because a witness's testimony corroborated that defendant was an accomplice to the aggravated robbery, defendant knew there was a large amount of marijuana at the home, a gun was used during the robbery, and the victim's death occurred during the robbery under circumstances manifesting extreme indifference to the value of human life. Bradley v. State, 2013 Ark. 58, 426 S.W.3d 363 (2013).

Where defendant appealed his conviction for capital murder in furtherance of aggravated robbery, there was substantial evidence to support the finding that the murder was committed during the course and furtherance of an aggravated robbery. Whatever contradictions, conflicts, and inconsistencies there were in the passenger's testimony were for the jury to resolve, and it could credit those parts of his testimony it believed to be true and disregard those it believed to be false. Wells v. State, 2013 Ark. 389, 430 S.W.3d 65 (2013).

Court did not err in denying defendant's motions for a directed verdict on capital-murder charges, in violation of subdivision (a)(4) of this section, because evidence was offered to establish his relationship with the victims, evidence was offered that he always carried a knife and pistol, and evidence was offered of his attempt to conceal the crimes and to manufacture an alibi. Green v. State, 2013 Ark. 497, 430 S.W.3d 729 (2013).

Evidence was sufficient to sustain defendant's attempted capital murder convictions because, after shooting the officer in the shoulder, defendant fired five additional shots at the fleeing officers; the officer's pat-down of defendant showed that he was unarmed, but he had the wherewithal to run into the apartment and retrieve his gun. Inthisone v. State, 2013 Ark. App. 482 (2013).

Testimony that defendant was the last person with the victim, that defendant told four people that morning that he had killed someone, and that defendant confessed to someone he had used a rock to commit the murder, which had been committed with a piece of concrete, was sufficient to support defendant’s capital murder conviction. Watson v. State, 2014 Ark. 203, 444 S.W.3d 835 (2014).

Sufficient evidence showed defendant's capital murder of a victim, under subdivision (a)(4) of this section, because (1) testimony put defendant where the victim's body was found, (2) the victim's blood was found in the vehicle defendant drove, which reeked of gasoline for which the victim's clothing tested positive, (3) defendant's DNA was found in the victim's vagina, and (4) defendant confessed. Brooks v. State, 2016 Ark. 305, 498 S.W.3d 292 (2016).

It was not error to deny defendant's directed verdict motion on capital murder because substantial evidence supported finding defendant murdered the victim, as (1) the victim was having an affair with defendant's husband, (2) defendant confronted the victim, (3) defendant owned the type of gun used to kill the victim, (4) a shirt testing positive for gunshot residue was found on defendant's bed, (5) defendant was at the crime scene at the time of the murder, (6) defendant lied about her whereabouts, (7) defendant's demeanor changed greatly after the murder, and (8) defendant's conduct after the shooting showed a consciousness of guilt. Hyatt v. State, 2018 Ark. 85, 540 S.W.3d 673 (2018).

Trial court did not err in denying defendant's motions for a directed verdict because substantial evidence supported the jury's verdict that he was guilty of capital murder; four witnesses, two of whom were defendant's own children, testified that he shot the victim, and the eyewitness testimony was consistent with the testimony of the medical examiner. Fletcher v. State, 2018 Ark. 261, 555 S.W.3d 858 (2018).

Evidence was sufficient to convict defendant of capital murder with the premeditated and deliberated purpose of causing the victim's death because the accomplices' testimony was corroborated by defendant's statement to police, forensic evidence, and testimony from other witnesses; the medical examiner (ME) testified that the victim died from internal blood loss caused by multiple blunt force injuries; defendant instructed the accomplices to beat the victim with baseball bats; the ME found oil on the victim's inner thighs and in her vagina, which was consistent with chainsaw oil; and defendant told the accomplices to use chainsaw oil as a lubricant and to shove a baseball bat inside the victim's vagina. Chumley v. State, 2019 Ark. 383, 590 S.W.3d 154 (2019).

While the State's case against defendant for capital felony murder/aggravated robbery was premised on circumstantial evidence, testimony clearly corroborated an accomplice's testimony against defendant and the evidence was sufficient to support the jury's verdict even without the accomplice testimony; testimony from multiple witnesses demonstrated that three masked men entered a gas station convenience store, the man in red demanded money from the owner, shot him in the neck, and then turned his gun on an employee, shooting him in the face. Lawshea v. State, 2019 Ark. 68, 567 S.W.3d 853 (2019).

Circuit court properly sentenced defendant for capital murder, unlawful discharge of a firearm from a vehicle, terroristic act, and employing a firearm in the commission of a felony although a witness testified that he shot the victim rather than the defendant and the State's firearms expert was unable to link the bullet recovered from the victim's body to the alleged murder weapon. The jury was free to believe the testimony of two other witnesses and disbelieve the confessing witness and nothing in the capital-murder statute required the State to prove anything regarding the weapon alleged to have been used. Martinez v. State, 2019 Ark. 85, 569 S.W.3d 333 (2019).

Defendant convicted of capital murder and terroristic act was not prejudiced by the hearsay testimony of a detective regarding a witness's statements to the detective and the circuit court's failure to give the limiting instruction because substantially similar testimony by another witness was admitted without objection. Martinez v. State, 2019 Ark. 85, 569 S.W.3d 333 (2019).

—Attempted Capital Murder.

There was sufficient evidence to convict defendant of attempted capital murder, where the evidence showed defendant threatened to kill the victim and made the conscious decision to attack him with a semiautomatic gun, but the weapon jammed when defendant pointed it at the victim in order to shoot and kill him, and the victim escaped before defendant could attempt to fire again. Hill v. State, 2015 Ark. App. 700, 478 S.W.3d 225 (2015).

Indictment or Information.

Mistake in information in specifying subsection of this section held harmless error. Andrews v. State, 265 Ark. 390, 578 S.W.2d 585 (1979).

Where amended information did not substantially affect the degree of the alleged crime for the original information which specifically designated first-degree murder as a capital felony and the amended information charging capital felony murder were virtually identical but for the statutory designation of the offense; the nature of the crime charged was not affected by the amendment. Pickens v. Lockhart, 714 F.2d 1455 (8th Cir. 1983).

Where the count of the information relating to the criminal attempt to commit capital felony murder gave the date of the alleged offense and stated that the conduct created a substantial step in a course of conduct intended to culminate in the murder of a witness, under the circumstances of the case, the conduct charged had to arise pursuant to subdivision (a)(1); while the court should have required the state to identify the specific statute it relied upon to support the count, failure to do so did not prejudice the defendants. Moore v. State, 280 Ark. 222, 656 S.W.2d 698 (1983).

Where language in the information closely follows that in subdivision (a)(7), defendant has no valid complaint regarding the charge. David v. State, 295 Ark. 131, 748 S.W.2d 117 (1988).

Where the only effect of the amendment to the information was to split the original single count of capital murder into two counts of capital murder under the new statutory definition of that offense, this amendment was a matter of form that did not change the nature of the offense charged. Mitchell v. State, 306 Ark. 464, 816 S.W.2d 566 (1991).

The trial court did not err in allowing the state to amend the information charging “attempt to commit capital felony murder” by allowing the deletion of the word “felony,” after the state had rested its case in chief, and after the defendant's motion to dismiss, because allowing the state to strike the word “felony” from each information did not cause any real change in the nature or degree of the charges against the defendant. Ledguies v. State, 46 Ark. App. 144, 877 S.W.2d 946 (1994).

Pretrial amendment of an information that charged capital murder on the basis of felony murder to add, as an alternative, the charge of capital murder on the basis of premeditated and deliberated purpose, does not change the nature of the crime charged in violation of § 16-85-407(b), nor does the amendment of an information that adds an allegation of habitual offender change the nature or degree of the crime. Nance v. State, 323 Ark. 583, 918 S.W.2d 114 (1996), cert. denied, Nance v. Arkansas, 519 U.S. 847, 117 S. Ct. 134, 136 L. Ed. 2d 83 (1996).

Although a deputy prosecutor had signed the first amended information in the name of the prosecutor, but without the prosecutor's consent, the requirements of Ark. Const. Amend. 21 and subject-matter jurisdiction were met where a later amended information was signed by the prosecutor; the State's first amended information did not taint the subsequent amendments properly filed. Hall v. State, 326 Ark. 318, 933 S.W.2d 363 (1996).

The State's amended information, which charged defendant with one count of capital murder, but alleged both premeditated and deliberated murder “and” capital felony murder while committing robbery and burglary, did not change the nature and degree of the offense and did not prejudice the defendant. Hall v. State, 326 Ark. 318, 933 S.W.2d 363 (1996).

There was no violation of § 16-85-407 when an information in a capital murder trial was amended a few days before trial to include a premeditation and deliberation element because defendant was not surprised by such; her own admissions showed that she acted in a premeditated and deliberative manner when she shot her husband as he slept, she had wanted to leave for a long time, and she fled with some of his belongings. Therefore, there was nothing wrong with including the premeditation and deliberation elements in the jury instructions. Terry v. State, 371 Ark. 50, 263 S.W.3d 528 (2007).

Indifference to Human Life.

Evidence held sufficient for jury conclude that the death was caused under circumstances manifesting extreme indifference to the value of human life. Williams v. State, 281 Ark. 387, 663 S.W.2d 928 (1984).

Conduct manifesting extreme indifference to human life indicates that the perpetrator of capital murder must act with deliberate conduct which culminates in the death of some person. Pruett v. State, 287 Ark. 124, 697 S.W.2d 872 (1985); Burnett v. State, 295 Ark. 401, 749 S.W.2d 308 (1988).

There was substantial evidence of conduct manifesting extreme indifference to the value of human life where the victim was severely bruised, her teeth were broken, and she was strangled. McGehee v. State, 328 Ark. 404, 943 S.W.2d 585 (1997).

In a prosecution for capital felony murder on the basis that the defendant killed a child during the course of and in furtherance of raping her under circumstances manifesting extreme indifference to the value of human life, a jury finding of the aggravating circumstance that the capital murder was committed for the purpose of avoiding or preventing arrest did not improperly elevate the requisite mental state for the charged crime since that crime required proof of deliberate conduct by the defendant and the requirement of deliberate conduct was consistent with the conclusion that the decision to kill the child, after raping her, was motivated by the defendant's desire or purpose to avoid arrest. Coulter v. State, 343 Ark. 22, 31 S.W.3d 826 (2000).

The language making knowingly causing the death of a person 14 years of age or younger a capital offense if committed with extreme indifference for human life is defined as acting with deliberate conduct that culminates in the death of some person. Branstetter v. State, 346 Ark. 62, 57 S.W.3d 105 (2001).

Evidence was sufficient to sustain a capital murder conviction where defendant broke into a home, raped one victim, stole money, and killed another victim; this was done under circumstances manifesting extreme indifference to the value of human life. Isom v. State, 356 Ark. 156, 148 S.W.3d 257 (2004), cert. denied, Isom v. Arkansas, 543 U.S. 865, 125 S. Ct. 204 (2004).

In a capital murder case, the state proved defendant's extreme indifference to the value of human life under subdivision (a)(1) of this section where a witness testified that defendant demanded to hold the gun in the robbery, the witness saw defendant point an arm at the victim, defendant admitted to the shooting during a custodial interrogation but claimed the gun discharged accidentally when the delivery man grabbed it, and expert testimony showed that the fatal shot was not made at a close range. Jordan v. State, 356 Ark. 248, 147 S.W.3d 691 (2004).

Evidence was sufficient to establish that defendant caused the victim's death under circumstances manifesting extreme indifference to the value of human life where defendant (1) admitted pointing a loaded gun at one victim in the course of a robbery, (2) fired a gun at another unarmed victim from less than three feet away, (3) repeatedly threatened to shoot all three victims throughout the ordeal, (4) used a gun to shoot the victim at close range and admitted the shooting was intentional, and (5) not only cursed the victim as he died, but threatened the other victims and locked them in a room so he could get away. Porter v. State, 358 Ark. 403, 191 S.W.3d 531 (2004).

Denial of defendant's motion for directed verdict on capital murder and aggravated murder charges under this section and §§ 5-12-102 and 5-12-103 was proper as the evidence showed that defendant held a pistol, a deadly weapon, and that he committed theft while armed with the pistol; the evidence also showed that he caused the death of the victim in immediate flight from the aggravated robbery under circumstances manifesting extreme indifference to the value of human life. Flowers v. State, 373 Ark. 119, 282 S.W.3d 790 (2008).

Instructions.

If the evidence presented at trial warrants instructions on lesser included offenses, such instructions must be given. Westbrook v. State, 265 Ark. 736, 580 S.W.2d 702 (1979).

Where the trial judge clearly instructed the jury that it could find defendant guilty of capital felony murder if she killed the victim either to rob him or in furtherance of the escape, there was no unreasonable discretion in such circumstances; the jury had to find her guilty of murder committed in the course of or in furtherance of a defined felony. Sumlin v. State, 266 Ark. 709, 587 S.W.2d 571 (1979).

Where in murder prosecution trial, judge instructed the jury as to capital felony murder, murder in the first degree, murder in the second degree, and manslaughter, it could not be said that the application of this section precluded consideration of the lesser offense of murder in the first degree. Wilson v. State, 271 Ark. 682, 611 S.W.2d 739 (1981).

Where two persons are murdered, there can be no evidence to support an instruction on first-degree murder because § 5-10-102 involves the premeditated and deliberate death of one person; accordingly, it was proper for the trial judge, in a double murder prosecution, to give instructions on capital murder, murder in the second degree, and manslaughter, but to refuse to give a requested instruction on murder in the first degree. Couch v. State, 274 Ark. 29, 621 S.W.2d 694 (1981).

Failure to instruct the jury on the elements of aggravated robbery and robbery in conjunction with its instructions on first-degree murder where the court had already instructed the jury on the elements of those crimes when it gave the charge of capital murder held not to be prejudicial error. Simpson v. State, 274 Ark. 188, 623 S.W.2d 200 (1981).

Jury instruction which equated guilt with punishment held to be erroneous. Pickens v. Lockhart, 714 F.2d 1455 (8th Cir. 1983).

Defendant held not prejudiced by the instruction on lesser included offense since the jury convicted him of the greater offense of capital felony murder. Henderson v. State, 279 Ark. 414, 652 S.W.2d 26, cert. denied, Henderson v. Arkansas, 464 U.S. 1012, 104 S. Ct. 536 (1983).

Court's failure to instruct on lesser included offenses was reversible error. Moore v. State, 280 Ark. 222, 656 S.W.2d 698 (1983).

The trial court should not attempt to explain matters concerning parole or executive clemency to a jury; thus, refusal to give the instruction to the effect that if defendant were sentenced to life without parole, he would serve the rest of his life in prison was proper. Pruett v. State, 282 Ark. 304, 669 S.W.2d 186, cert. denied, 469 U.S. 963, 105 S. Ct. 362, 83 L. Ed. 2d 298 (1984).

In a prosecution for attempted capital murder, the trial court properly instructed the jury on both the use of physical force in self defense and deadly force in self defense despite defendant's insistence that only the instruction on physical force be given since it is the trial court's responsibility to give wholly correct instructions and the jury heard evidence that the defendant could have used either physical or deadly force. Elmore v. State, 13 Ark. App. 221, 682 S.W.2d 758 (1985).

The giving of the Allen charge in a capital murder prosecution was erroneous as it would encourage unanimity and possibly encourage a penalty of death in order to avoid a retrial, even though if the jury did not unanimously agree on the death sentence their verdict would automatically stand at life without parole, and there would not be a retrial. Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986).

When capital felony murder is charged under subdivision (a)(1) of this section, first degree felony murder is “a lesser included offense” because the same evidence used to prove the former of necessity proves the latter; therefore, an instruction of first degree murder is required. Rhodes v. State, 290 Ark. 60, 716 S.W.2d 758 (1986); Sanders v. State, 305 Ark. 112, 805 S.W.2d 953 (1991).

Where the defendant was charged with homicide in the course of a burglary, the failure to instruct on first degree murder was not reversible error because the objection of counsel was that the court should have given the instruction because of evidence, which counsel could not recite, that the defendant entered the victim's residence for a purpose other than to commit a burglary. Rhodes v. State, 290 Ark. 60, 716 S.W.2d 758 (1986).

Where victim testified that defendant deliberately shot him through a car window the testimony provided a basis in the evidence for the trial court's instruction on attempted capital murder. Mitchell v. State, 306 Ark. 464, 816 S.W.2d 566 (1991).

Instructions in defendant's felony murder trial did not deny him due process by improperly shifting the burden of proof to him. Moss v. Lockhart, 971 F.2d 77 (8th Cir. 1992).

Where defendant claims that his counsel was ineffective by failing to object to defective instructions of capital murder, defendant must show that, but for his counsel's failure to object to the trial court's omission when instructing the jury on capital felony murder, the jury would have reached a different decision. Hall v. State, 326 Ark. 318, 933 S.W.2d 363 (1996).

In cases involving a trial court's giving of an erroneous instruction involving the trial mechanism to be used in deciding either a civil or criminal case, the appellant is not required to demonstrate prejudice; such a requirement is often an impossible burden, and the requirement of an impossible burden, in effect, renders the requirement of correct instructions on the law meaningless. Hall v. State, 326 Ark. 318, 933 S.W.2d 363 (1996).

According to the evidence presented at trial, there was a plan between defendant and the accomplice to kill a drug dealer during the drug transaction, defendant admitted to driving the truck to a remote location, there was also some evidence that defendant was in a scheme to murder the victim for a fee, defendant lied about the victim's whereabouts, and defendant fled from the scene; thus, there was ample evidence to rationally support the giving of an instruction on the lesser included offense of first-degree murder. Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003).

In addition to instructions on the elements of capital murder, the jury was instructed on lesser included offenses of first-degree murder, second-degree murder, and manslaughter, and defendant not assert that the model jury instructions inaccurately reflected the law; thus, despite his contention that his proffered instructions were more inclusive and a more clear statement of the law on the various issues, the trial court did not err in refusing to submit them to the jury in his capital murder case. Adams v. State, 2009 Ark. 375, 326 S.W.3d 764 (2009), cert. denied, 559 U.S. 1021, 130 S. Ct. 1922, 176 L. Ed. 2d 392 (2010).

Where defendant appealed his conviction for capital murder in furtherance of aggravated robbery, even if there were any evidence to support the giving of an accomplice witness instruction, defendant had not shown that he was prejudiced by the circuit court's failure to give the instruction because the passenger's testimony was sufficiently corroborated by other evidence. Wells v. State, 2013 Ark. 389, 430 S.W.3d 65 (2013).

Intent.

Whether defendant lacked the ability to form an intent to commit murder was a jury question. Novak v. State, 287 Ark. 271, 698 S.W.2d 499 (1985).

Intent to kill is not an element of the offense under subdivision (a)(1). Sellers v. State, 300 Ark. 280, 778 S.W.2d 603 (1989).

Under subdivision (a)(1) of this section, it is not necessary that the State show that the defendant took an active part in the killing so long as he assisted in the commission of the underlying crimes; a defendant must only have the requisite intent for the underlying felony. Dixon v. State, 319 Ark. 347, 891 S.W.2d 59 (1995).

The nature and extent of a victim's wounds is relevant to a showing of intent. Jones v. State, 329 Ark. 62, 947 S.W.2d 339 (1997), cert. denied, Jones v. Arkansas, 522 U.S. 1002, 118 S. Ct. 574 (1997).

Evidence was sufficient to establish intent where the defendant inmate twice struck an officer on the head with a table leg, the officer served on a committee that disciplined the defendant only two days before the incident, and the defendant was unhappy with the outcome. Jones v. State, 72 Ark. App. 271, 35 S.W.3d 345 (2000).

Absent a legally-recognized defense, where defendant intentionally caused the death of another, his act constituted murder; although defendant claimed he shot his live-in companion because she was ill and he felt sorry for her, it was completely irrelevant that the act was motivated by love rather than malice. Boyle v. State, 363 Ark. 356, 214 S.W.3d 250 (2005).

To be guilty of capital murder under subdivision (a)(10) of this section, defendant's conduct evidencing a purposeful mental state was his firing a gun from his vehicle toward the vehicle of three acquaintances with the knowledge that the target vehicle was occupied. It was not required that he acted purposely with regard to killing of the victim. Price v. State, 373 Ark. 435, 284 S.W.3d 462 (2008).

Judicial Review.

In determining the sufficiency of evidence to uphold a conviction the Supreme Court will affirm if there is substantial evidence to support the jury's verdict. Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982).

Trial court did not err by denying defendant's motion for a directed verdict on the capital murder charge because: (1) but for defendant's aggravated robbery, speeding, and fleeing from the police, the trooper would not have been in the roadway attempting to retrieve stop sticks and would not have been struck by another trooper's vehicle; (2) the state presented sufficient evidence that defendant acted under circumstances manifesting an extreme indifference to the value of human life, as it showed that defendant robbed the victim with a gun, fled with his accomplice and the loot in a stolen car on a busy interstate, and initiated a high-speed chase while being pursued by several law enforcement officers with their lights and sirens blaring, thereby engaging in life-threatening activity; and (3) the phrase “under circumstances manifesting extreme indifference to the value of human life” was not void for vagueness, as the cases interpreting the phrase provided fair warning that it involved a life-threatening activity. Jefferson v. State, 372 Ark. 307, 276 S.W.3d 214 (2008).

Jurisdiction.

Defendant's contention that the evidence was insufficient to prove that the murder took place in Arkansas was rejected as, although evidence showed that the victim's body was found in Oklahoma, and there was no positive evidence presented that the crime actually occurred outside of Arkansas; the record provided ample substantial evidence that, at the very least, the premeditation and deliberation element of capital murder and kidnapping by deception occurred in Arkansas. Smith v. State, 367 Ark. 274, 239 S.W.3d 494 (2006).

Where defendant was tried on alternate theories of capital murder—rape felony murder and child-abuse murder—and a general verdict form was used, and extraterritorial jurisdiction did not extend to the alleged rape that occurred in Missouri, the appellate court was unable to determine which theory the jury based the conviction on and therefore the conviction was reversed. Although death was the consequence or result of the rape, rape is not defined to include death as a consequence, and thus, under the plain language of § 5-1-104, extraterritorial jurisdiction did not extend to the alleged rape that occurred in Missouri. Torres v. State, 2019 Ark. 101, 571 S.W.3d 456 (2019).

Jurors.

Defendant's contention that a jury qualified to return a death penalty is necessarily prejudiced on the question of guilt or innocence was not supported where he was convicted of a lesser charge. Rodgers v. State, 261 Ark. 293, 547 S.W.2d 419 (1977).

The defendant's motion that prospective jurors who were opposed to the death penalty not be excused from serving on the jury was properly denied since these jurors would under no circumstances consider imposing the death penalty. Swindler v. State, 267 Ark. 418, 592 S.W.2d 91 (1979), cert. denied, 449 U.S. 1057, 101 S. Ct. 630, 66 L. Ed. 2d 511 (1980).

Exclusion of veniremen because of their uncertainty about, or scruples against, the death penalty held to be proper. Woodard v. State, 273 Ark. 235, 617 S.W.2d 861 (1981), cert. denied, Woodard v. Arkansas, 454 U.S. 1068, 102 S. Ct. 618 (1981); Hobbs v. State, 277 Ark. 271, 641 S.W.2d 9 (1982); Clines v. State, 280 Ark. 77, 656 S.W.2d 684 (1983), cert. denied, Clines v. Arkansas, 465 U.S. 1051, 104 S. Ct. 1328, 79 L. Ed. 2d 723 (1984).

Selection of a jury which agreed in advance to consider the death penalty held proper. Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982).

The law of Arkansas permits prospective jurors to be challenged if they would automatically vote for the death penalty upon conviction regardless of the evidence. Grigsby v. Mabry, 569 F. Supp. 1273 (E.D. Ark. 1983), modified, 758 F.2d 226 (8th Cir. Ark. 1985).

Argument of defendant that he was denied an impartial jury because the jury selected was “death qualified” and therefore was biased in favor of the prosecution was rejected. Hayes v. State, 278 Ark. 211, 645 S.W.2d 662 (1983), cert. denied, Hayes v. Arkansas, 464 U.S. 865, 104 S. Ct. 198, 78 L. Ed. 2d 173 (1984); Hayes v. Arkansas, 465 U.S. 1051, 104 S. Ct. 1331, 79 L. Ed. 2d 726 (1984).

Defendant was not prejudiced where venireman stated that he had not formed an opinion about capital punishment before the voir dire began, but he had decided that he believed in it under certain circumstances. Heffernan v. State, 278 Ark. 325, 645 S.W.2d 666 (1983), appeal dismissed, — Ark. —, — S.W.3d —, 2002 Ark. LEXIS 363 (June 13, 2002).

Exclusion for cause of two veniremen because of their uncertainty as to capital punishment, and failure to excuse for cause a venireman who showed a preference for capital punishment, did not constitute abuse of discretion. Clines v. State, 280 Ark. 77, 656 S.W.2d 684 (1983), cert. denied, Clines v. Arkansas, 465 U.S. 1051, 104 S. Ct. 1328, 79 L. Ed. 2d 723 (1984).

Death-qualified juries held to be constitutional. Rector v. State, 280 Ark. 385, 659 S.W.2d 168 (1983), cert. denied, Rector v. Arkansas, 466 U.S. 988, 104 S. Ct. 2370, 80 L. Ed. 2d 842 (1984); Harmon v. State, 286 Ark. 184, 690 S.W.2d 125 (1985); Sullivan v. State, 287 Ark. 6, 696 S.W.2d 709 (1985).

Jurors who are unalterably opposed to capital punishment should not be permitted to participate in the determination of guilt or innocence in capital cases and their exclusion is proper, for either of two reasons; first, because conviction-proneness is neither inherently wrong nor destructive of the juror's impartiality, and second, because a jury system that has served its purpose admirably throughout the nation's history ought not to be twisted out of shape for the benefit of those persons least entitled to special favors. It has always been the law in Arkansas, except when the punishment is mandatory, that the same jurors who have the responsibility for determining guilt or innocence must also shoulder the burden of fixing the punishment; that is as it should be, for the two questions are necessarily interwoven. Rector v. State, 280 Ark. 385, 659 S.W.2d 168 (1983), cert. denied, Rector v. Arkansas, 466 U.S. 988, 104 S. Ct. 2370, 80 L. Ed. 2d 842 (1984).

A juror who would require the prosecutor to prove more elements than the law requires because of the severity of the death penalty was properly struck for cause. Fairchild v. State, 284 Ark. 289, 681 S.W.2d 380 (1984), cert. denied, Fairchild v. Arkansas, 471 U.S. 1111, 105 S. Ct. 2346 (1985).

It is not error to empanel a death-qualified jury. Pruett v. State, 287 Ark. 124, 697 S.W.2d 872 (1985).

Defendant was not denied a fair trial because several jurors were dismissed due to their scruples against the death penalty. Snell v. State, 287 Ark. 264, 698 S.W.2d 289 (1985).

Where the trial judge's determination that three prospective jurors were impartial was fairly supported by the record, and none of the three served on the jury as the defendant exercised his peremptory challenges to excuse them, the defendant was not entitled to relief on the grounds that the trial court had refused to excuse those prospective jurors for cause. Simmons v. Lockhart, 626 F. Supp. 872 (E.D. Ark. 1985), aff'd, 814 F.2d 504 (8th Cir. 1987).

The proper standard to be used in releasing a juror is whether the juror's views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and oath. Since Arkansas recognizes the death penalty, jurors in a capital murder case must be able to consider imposing a death sentence if they are to perform their function as jurors; the trial court correctly decided that those excused jurors could not perform their duties, because they could not consider imposing a death sentence. Williams v. State, 288 Ark. 444, 705 S.W.2d 888 (1986).

Where the juror reported to the trial judge that he had received a telephone call during the preceding night to “do good,” the trial court properly refused to grant a mistrial; the judge was in a far better position than the appellate court to say whether the particular juror was affected by the telephone call. Holland v. State, 288 Ark. 435, 706 S.W.2d 375 (1986).

If the question on the juror's mind is the ultimate one of whether the accused is guilty, then that juror is expressing a reasonable doubt, and the verdict is not unanimous; therefore, where, in a capital murder trial, the jurors were polled as to their guilty verdicts and one juror responded that his verdict was with a question, the defendant's conviction was reversed. Rhodes v. State, 290 Ark. 60, 716 S.W.2d 758 (1986).

Lesser Included Offenses.

When capital felony murder is charged under this section, first-degree murder is a “lesser included offense” because the same evidence used to prove the former of necessity proves the latter. Therefore, an instruction on first-degree murder is required. Hill v. State, 303 Ark. 462, 798 S.W.2d 65 (1990).

Premeditated and deliberate capital murder includes the lesser charge of purposeful first degree murder. Allen v. State, 310 Ark. 384, 838 S.W.2d 346 (1992).

Second-degree murder is not a lesser included offense of capital felony murder. Brown v. State, 325 Ark. 504, 929 S.W.2d 146 (1996), overruled in part, McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002), but see McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002), restating the test for determining when an offense is included in another offense.

Second-degree murder is a lesser included offense of capital murder only if the accused's mental state is an element of the offense. Brown v. State, 325 Ark. 504, 929 S.W.2d 146 (1996), overruled in part, McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002), but see McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002), restating the test for determining when an offense is included in another offense.

Evidence was insuffcient to require the court to give a instruction on manslaughter as a lesser included offense of murder, notwithstanding that the defendant's divorce from the victim's daughter may have aroused unbalancing passion within the defendant, where there was no evidence of provocation. Kail v. State, 341 Ark. 89, 14 S.W.3d 878 (2000).

Felony manslaughter is not a lesser included offense of capital felony murder or first-degree felony murder. Hill v. State, 344 Ark. 216, 40 S.W.3d 751 (2001), overruled in part, McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002), but see McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002), restating the test for determining when an offense is included in another offense.

Felony manslaughter added an additional element to felony murder relating to the perpetration of the murder itself and, therefore, was not a lesser included offense of capital murder or first-degree murder. Cook v. State, 77 Ark. App. 20, 73 S.W.3d 1 (2002).

Trial court did not err in declining to give defendant's proffered first-degree murder instruction that the state was required to prove a purposeful intent to kill because the requirement that an act be done “purposely” in subdivision (a)(1) referred only to the act of discharging a firearm. Hardman v. State, 356 Ark. 7, 144 S.W.3d 744 (2004).

Trial court did not err in refusing to give a jury instruction concerning different criminal liabilities of co-defendants because the jury found defendant guilty of capital murder, even though it had been instructed on the lesser included offenses of first and second-degree murder; thus, any error in failing to give a manslaughter or negligent homicide instruction was cured.Vidos v. State, 367 Ark. 296, 239 S.W.3d 467 (2006).

Circuit court erred in instructing the jury on felony manslaughter as a lesser included offense of capital felony murder, because the “extreme indifference” element was not a culpable mental state relating to a specific homicide victim but merely described the dangerous circumstances generally set in motion by defendant, and since the “extreme indifference” standard was not a mens rea related to a specific victim, it could not support a lesser included offense based on a less culpable mental state; the sole mens rea element in capital felony murder and first degree felony murder related to the underlying felony and not to the homicide itself. Perry v. State, 371 Ark. 170, 264 S.W.3d 498 (2007).

Prohibition against double jeopardy was not violated when defendant was convicted of aggravated robbery and attempted capital murder because the robbery was the underlying felony, and aggravated robbery was not the lesser included offense of attempted capital murder. Clark v. State, 373 Ark. 161, 282 S.W.3d 801 (2008).

Aggravated robbery is not a lesser included offense of attempted capital murder because, while an aggravated-robbery charge shares the intent to rob with attempted capital murder, aggravated robbery also requires one of three other elements. Two of those elements, being armed with a deadly weapon, or representing as such, are unique to aggravated robbery, and the third possible element of aggravated robbery is having inflicted or attempted to inflict death or serious physical injury upon another, which is not equivalent to the element in attempted capital murder that a defendant, in the course of or in flight from such robbery, caused the death of a person under circumstances manifesting extreme indifference to the value of human life. Clark v. State, 373 Ark. 161, 282 S.W.3d 801 (2008).

Miranda Warnings.

The court looked at the totality of the circumstances surrounding the interrogation and determined that the State proved that the defendant had the requisite level of comprehension to knowingly waive his rights. Steggall v. State, 340 Ark. 184, 8 S.W.3d 538 (2000).

Where there was no testimony presented to indicate that incarcerated defendant made incriminating statements as a result of violence, threats, coercion or offers of reward, and the testimony presented established that defendant's custodial statements that he intended to kill the assaulted corrections officer were spontaneous, the statements were admissible in defendant's trial for attempted capital murder. Fairchild v. State, 349 Ark. 147, 76 S.W.3d 884 (2002).

With respect to a defendant convicted of capital murder, the trial court did not err in finding that defendant knowingly, voluntarily, and intelligently waived his Miranda rights because: (1) two police officers contradicted defendant's assertion that he was in no condition to make any kind of statement and that he did not understand his Miranda rights, and (2) the trial judge himself had listened to the tape of the interview and so was able to hear for himself whether or not defendant sounded as if he were impaired. Reese v. State, 371 Ark. 1, 262 S.W.3d 604 (2007).

Premeditation and Deliberation.

Evidence held sufficient to show premeditation and deliberation supporting a conviction. Hamilton v. State, 262 Ark. 366, 556 S.W.2d 884 (1977); Stout v. State, 263 Ark. 355, 565 S.W.2d 23 (1978); Swindler v. State, 267 Ark. 418, 592 S.W.2d 91 (1979), cert. denied, 449 U.S. 1057, 101 S. Ct. 630, 66 L. Ed. 2d 511 (1980); Shaw v. State, 299 Ark. 474, 773 S.W.2d 827 (1989), cert. denied, — Ark. —, — S.W.3d —, 2005 Ark. LEXIS 256 (Apr. 28, 2005); Salley v. State, 303 Ark. 278, 796 S.W.2d 335 (1990); Catlett v. State, 331 Ark. 270, 962 S.W.2d 313 (1998).

Premeditation and deliberation can be instantaneous and the intent to kill need not have existed for any appreciable length of time and may also be conceived in a moment. Stout v. State, 263 Ark. 355, 565 S.W.2d 23 (1978).

Premeditation and deliberation and intent may all be inferred from the circumstances, such as the character of the weapon used, the manner in which it is used, the nature, extent and location of the wounds inflicted, the conduct of the accused and the like. Stout v. State, 263 Ark. 355, 565 S.W.2d 23 (1978); Farris v. State, 308 Ark. 561, 826 S.W.2d 241 (1992).

Deliberation and premeditation may be inferred from the circumstances of the case as presented at trial. Westbrook v. State, 265 Ark. 736, 580 S.W.2d 702 (1979).

Defendant was guilty of capital murder if premeditation and deliberation were found, but if a lesser culpable state were found, then a finding of second-degree murder or manslaughter was appropriate. Couch v. State, 274 Ark. 29, 621 S.W.2d 694 (1981).

Premeditation and deliberation are not required to exist for any particular length of time and may be formed almost on the spur of a moment. Ford v. State, 276 Ark. 98, 633 S.W.2d 3 (1982), cert. denied, Ford v. Arkansas, 459 U.S. 1022, 103 S. Ct. 389 (1982).

The matter of premeditation and deliberation, absent a confession, can only be proven by circumstantial evidence. Ford v. State, 276 Ark. 98, 633 S.W.2d 3 (1982), cert. denied, Ford v. Arkansas, 459 U.S. 1022, 103 S. Ct. 389 (1982).

The rule that the requisite state of mind of premeditation and deliberation need not exist for any particular length of time is still law. Fields v. State, 280 Ark. 153, 655 S.W.2d 419 (1983).

Breaking into the victims' house, ransacking the house, raping one of the victims, and then inflicting numerous, deep, and fatal stabs wounds with a large knife upon three different victims is substantial circumstantial evidence of a premeditated and deliberated culpable mental state. Ward v. State, 298 Ark. 448, 770 S.W.2d 109 (1989).

Under § 5-3-201 and this section, premeditation and deliberation constitute the necessary mental state for the commission of attempted capital murder. Salley v. State, 303 Ark. 278, 796 S.W.2d 335 (1990).

Where evidence established that defendant armed himself with a sawed-off shotgun, drove to the housing projects, walked to within six feet of the victim at an angle from which the victim couldn't see, spoke the victim's name, and shot the victim in the side of the head, these circumstances provided more than substantial evidence for the jury to infer defendant's premeditation and deliberation. Smith v. State, 306 Ark. 483, 815 S.W.2d 922 (1991).

Capital murder conviction affirmed where defendant shot, raped, and killed an 85-year-old woman before taking $25 from her purse. Sanford v. State, 331 Ark. 334, 962 S.W.2d 335 (1998).

Evidence of premeditation and deliberation held sufficient where defendant had talked about killing the victim for some months before the murder, and where victim had been shot with a pump shotgun and two different types of shells had been fired. Lloyd v. State, 332 Ark. 1, 962 S.W.2d 365 (1998).

Premeditation and deliberation were sufficiently shown where the defendant shot the victims in the head with a firearm, causing their deaths. Hodge v. State, 332 Ark. 377, 965 S.W.2d 766 (1998).

The evidence was sufficient to show premeditation and deliberation in the defendant's killing of his brother, notwithstanding the contention that there was no eyewitness to the incident and that the only testimony on the point at trial was given by the defendant and showed that his brother initiated the fight and that the defendant only defended himself against his brother's attack, where evidence showed that the brother sustained 21 sharp object wounds and 58 blunt object blows and that he also suffered defense wounds consistent with a person holding up his arms to ward off an attacker. Chase v. State, 334 Ark. 274, 973 S.W.2d 791 (1998).

Because intent can rarely be proved by direct evidence, a jury may infer premeditation and deliberation from circumstantial evidence such as the type and character of the weapon used, the manner in which the weapon was used, the nature, extent, and location of the wounds inflicted, and the conduct of the accused. McFarland v. State, 337 Ark. 386, 989 S.W.2d 899 (1999), cert. denied, McFarland v. Arkansas, 528 U.S. 933, 120 S. Ct. 334 (1999).

The necessary premeditation and deliberation is not required to exist for a particular length of time and may be formed in an instant. McFarland v. State, 337 Ark. 386, 989 S.W.2d 899 (1999), cert. denied, McFarland v. Arkansas, 528 U.S. 933, 120 S. Ct. 334 (1999).

Evidence was sufficient to show premeditation and deliberation where (1) while in a car shortly before his death, the victim was asked either by the defendant or by a coperpetrator in the defendant's presence how it felt to know that he was going to die, and (2) the victim's death was the culmination of two prolonged beatings and torture. McFarland v. State, 337 Ark. 386, 989 S.W.2d 899 (1999), cert. denied, McFarland v. Arkansas, 528 U.S. 933, 120 S. Ct. 334 (1999).

Premeditation is not required to exist for a particular length of time; it may be formed in an instant and is rarely capable of proof by direct evidence but must usually be inferred from the circumstances of the crime. Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999).

Premeditation and deliberation may be inferred from the type and character of the weapon, the manner in which the weapon was used, the nature, extent, and location of the wounds, and the accused's conduct. Cobb v. State, 340 Ark. 240, 12 S.W.3d 195 (2000).

The evidence was sufficient to show that defendant acted with premeditation and deliberation when he went to the victim's home with a recently purchased gun, shot the unarmed victim in the back, causing him to suffer paralysis, and then shot him a second time at point-blank-range in the chest and left him to die. Cobb v. State, 340 Ark. 240, 12 S.W.3d 195 (2000).

Where incarcerated defendant grabbed correction officer's flashlight and inflicted repeated blows to the officer's head causing permanent brain injury, the vicious nature of the attack alone could allow the jury to infer premeditation and deliberation to support defendant's attempted capital murder conviction. Fairchild v. State, 349 Ark. 147, 76 S.W.3d 884 (2002).

Where the medical examiner testified that the victim was lying on a couch and didn't have time to move or react, and evidence showed that there was more than an instant for defendant to decide to kill the victim, leave the room to get a gun, return to the room, aim at the victim, and shoot several times, this was sufficient to show premeditation and deliberation under subdivision (a)(4) of this section. Robinson v. State, 363 Ark. 432, 214 S.W.3d 840 (2005).

There was substantial evidence for the jury to conclude that defendant made a premeditated and deliberate choice to shoot and kill the victim, thus, the trial court did not err by denying defendant's motion for a directed verdict; there was testimony that defendant had possession of the weapon that was used to kill the victim, that defendant had a motive to kill him, and that the shots at the victim were intentional and not random shots into the building. Weston v. State, 366 Ark. 265, 234 S.W.3d 848 (2006).

With respect to a defendant convicted of capital murder, there was sufficient evidence of premeditation and deliberation because: (1) evidence showed that the defendant shot the victim four times, including three shots to the head; (2) the nature and location of gunshot wounds were evidence that the jury could have relied on to infer that the defendant acted with premeditation and deliberation; and (3) there was direct evidence that the defendant stated repeatedly that he intended to kill the victim. Reese v. State, 371 Ark. 1, 262 S.W.3d 604 (2007).

Defendant who stabbed a victim multiple times with a long knife could not be found guilty of aggravated robbery absent evidence that he was trying to get money in addition to money that he had lost to the victim by gambling. His felony-capital murder charge based on the robbery was likewise reversed; however, his premeditated and deliberate purpose capital murder conviction was upheld. Daniels v. State, 373 Ark. 536, 285 S.W.3d 205 (2008), superseded by statute as stated in, Heard v. State, 2009 Ark. 546, 354 S.W.3d 49 (2009).

Substantial evidence was presented to the jury to support a capital murder verdict under subdivision (a)(4) of this section and a finding that defendant murdered the victim with premeditation and deliberation, given that (1) a witness testified to seeing defendant and the victim fighting, then they split up, then defendant went back inside his house a second time before emerging with a shotgun, (2) as the victim began to drive away, defendant fired, and (3) the victim's death was caused by the shotgun pellet; the court rejected defendant's claim that the trial court erred in denying his motions for a directed verdict. Adams v. State, 2009 Ark. 375, 326 S.W.3d 764 (2009), cert. denied, 559 U.S. 1021, 130 S. Ct. 1922, 176 L. Ed. 2d 392 (2010).

Defendant's conviction of capital murder was upheld, as evidence that he stalked the victim; broke into her apartment and waited for her for hours; stabbed her when she opened the door; violently struggled with her while she begged for her life; hid her body and fled, was sufficient to establish premeditation and deliberation under subdivision (a)(4) of this section. Marcyniuk v. State, 2010 Ark. 257, 373 S.W.3d 243 (2010).

Armed defendant's statements to a bank courier, “Come on with the bags, don't make me kill you,” along with his firing the gun three times, provided evidence of deliberation by showing that he considered killing the courier, supporting his conviction for attempted premeditated capital murder. Ali v. State, 2011 Ark. App. 758 (2011).

Because the circuit court engaged in speculation in determining that defendant acted with premeditation and deliberation and improperly shifted the burden of proof to him when weighing the evidence, the court reversed defendant's conviction for capital murder; there was no evidence of close-range fire, there could have been multiple scenarios explaining the trajectory of the bullet, and there was no evidence that defendant picked up a gun, walked up behind the victim, and shot him in the head. Thornton v. State, 2014 Ark. 157, 433 S.W.3d 216 (2014).

Petitioner was not entitled to a writ of error coram nobis because there was no reasonable probability that evidence allegedly suppressed would have resulted in a conviction of a lesser-included offense of capital murder; a witness's statement recanting her testimony that the victim was unarmed did not establish that his murder was justified or refute evidence that petitioner acted with premeditation and deliberation when he shot the victim multiple times in the back and at close range. Stenhouse v. State, 2016 Ark. 295, 497 S.W.3d 679 (2016), cert. denied, — U.S. —, 137 S. Ct. 837, 197 L. Ed. 2d 75 (2017).

Substantial evidence supported a jury's finding that defendant acted with premeditation and deliberation in killing a victim because (1) the victim sustained numerous injuries to the victim's face and head caused by separate blows, (2) the number and nature of wounds showed a prolonged and violent struggle, and (3) the victim was strangled, all showing defendant's conscious object to cause the victim's death. Brooks v. State, 2016 Ark. 305, 498 S.W.3d 292 (2016).

Substantial evidence supported a jury's finding that defendant acted with premeditation and deliberation when committing capital murder because it was possible for the jury to have found that, after having time to cool off after her husband left her, defendant drove to the victim's house with a gun and shot the victim five times. Hyatt v. State, 2018 Ark. 85, 540 S.W.3d 673 (2018).

Preservation for Review.

Difference between the elements of capital murder and first-degree murder under the particular subsections of the statutes at issue is in terms of specificity; the capital-murder statute contains a list of specific felonies the defendant must have committed—here, aggravated robbery, whereas the first-degree murder statute simply requires a death to have occurred during the commission of “a felony”. Jackson v. State, 2018 Ark. App. 330, 552 S.W.3d 55 (2018).

Defendant's challenge to the sufficiency of the evidence supporting his conviction as an accomplice to first-degree murder was preserved; although defense counsel did not mention “first-degree murder” in his directed-verdict motion, considering the subsections of the statutes on which the jury was instructed, the elements of capital murder and first-degree murder were the same. Jackson v. State, 2018 Ark. App. 330, 552 S.W.3d 55 (2018).

Sentence.

Punishment of life imprisonment held not to have resulted from passion or prejudice or jury's abuse of its discretion and the sentence was not so wholly disproportionate to the crime as to shock the moral sense of the community. Stout v. State, 263 Ark. 355, 565 S.W.2d 23 (1978).

Where the defendant was convicted of two felony murders and received the death sentence in each, as authorized by statute for each offense, it was not so disproportionate to the nature of the offense as to shock the moral sense of the community. Clark v. State, 264 Ark. 630, 573 S.W.2d 622 (1978).

Evidence held sufficient to find that defendant's sentence should be reduced from death to life without parole. Henry v. State, 278 Ark. 478, 647 S.W.2d 419 (1983), cert. denied, Henry v. Arkansas, 464 U.S. 835, 104 S. Ct. 121 (1983).

The death sentences were carefully and deliberately compared to sentences in other capital cases, and it was found that the death penalty was fully justified. Ruiz v. State, 280 Ark. 190, 655 S.W.2d 441 (1983).

Juries are not bound under the Arkansas statutory scheme to return a verdict of death if they find aggravating circumstances outweigh mitigating circumstances; whatever the jury may find with respect to aggravation versus mitigation, it is still free to return a verdict of life without parole, simply by finding that the aggravating circumstances do not justify a sentence of death; additionally, because the capital murder statute and the first degree murder statute overlap in appropriate cases, the jury may refuse consideration of both the death penalty and life without parole, by returning a guilty verdict as to the charge of murder in the first degree. Clines v. State, 280 Ark. 77, 656 S.W.2d 684 (1983), cert. denied, Clines v. Arkansas, 465 U.S. 1051, 104 S. Ct. 1328, 79 L. Ed. 2d 723 (1984).

Death penalty held not wantonly, arbitrarily or freakishly imposed, and held not excessive in relation to the crime and the jury's verdict held relatively free of passion or prejudice. Clines v. State, 280 Ark. 77, 656 S.W.2d 684 (1983), cert. denied, Clines v. Arkansas, 465 U.S. 1051, 104 S. Ct. 1328, 79 L. Ed. 2d 723 (1984).

Imposition of death sentence as compared to other capital cases held not to be arbitrary. Rector v. State, 280 Ark. 385, 659 S.W.2d 168 (1983), cert. denied, Rector v. Arkansas, 466 U.S. 988, 104 S. Ct. 2370, 80 L. Ed. 2d 842 (1984).

Evidence held sufficient to find that the trial court should reject the defendant's argument that the death sentence is disproportionate. Hendrickson v. State, 285 Ark. 462, 688 S.W.2d 295 (1985).

Where, when the jury asked the court whether a sentence of life without parole “really means no parole,” and the court answered, by agreement of counsel for the defense and for the state, that under a sentence of life without parole the defendant would be incarcerated for life in the Department of Correction unless the governor commuted the sentence to a term of years, the defendant could not argue on appeal that it was error to give this information to the jury. Snell v. State, 290 Ark. 503, 721 S.W.2d 628 (1986), cert. denied, 484 U.S. 872, 108 S. Ct. 202 (1987).

Where the mandated narrowing function was performed at the guilt phase, the fact that the aggravating circumstance duplicated one of the elements of the crime did not make the sentence constitutionally infirm. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988).

Habeas relief was not warranted because an applicant was charged under a former first-degree murder statute where a murder was committed in the course of a robbery, and he was properly sentenced to life imprisonment without parole on his plea of guilty to capital-felony murder. An argument that murder in the first degree and capital murder were separate offenses with a separate penalty was rejected. [Decided under former section] Gooch v. Hobbs, 2014 Ark. 73 (2014).

Because the evidence was sufficient to establish the premeditation and deliberation required to convict defendant of capital murder, and because the sentence he received was provided for by statute, the trial court did not exceed its authority in sentencing defendant to life imprisonment without parole. Fletcher v. State, 2018 Ark. 261, 555 S.W.3d 858 (2018).

In accord with Harris v. State, 2018 Ark. 179. Circuit court erred in applying the Fair Sentencing of Minors Act of 2017 (FSMA) to defendant juvenile's case because defendant committed his crime before the effective date of the FSMA, and thus, the penalty provisions did not apply; because defendant's sentence was vacated, he was no longer serving a sentence to which parole eligibility could attach, and thus, the parole-eligibility provision of the FSMA did not apply at the time of his hearing on the State's motion for resentencing. Ray v. State, 2019 Ark. 46, 567 S.W.3d 63 (2019).

Single Continuous Transaction.

Where a murder and robbery occur in close proximity to one another in time and place, the jury is justified in finding the murder and robbery to be one continuous transaction. Mitchell v. State, 314 Ark. 343, 862 S.W.2d 254 (1993).

The state need only prove that a robbery and murder were parts of the same transaction, or occurred within the same brief interval, to support a conviction of capital felony murder and need not show a strict causal relationship between the felony and the homicide. Clay v. State, 324 Ark. 9, 919 S.W.2d 190 (1996).

Evidence sufficient to find that murder and robbery occurred together. Clay v. State, 324 Ark. 9, 919 S.W.2d 190 (1996).

Trial Proceedings.

The late disclosure of the identity of the individual whose phone call led to the discovery of the body of one of the murder victims did not preclude the defense counsel from preparing properly for trial where the counsel failed to disclose how the identity of the caller would have been used if it had been known before the trial. Simmons v. Lockhart, 626 F. Supp. 872 (E.D. Ark. 1985), aff'd, 814 F.2d 504 (8th Cir. 1987).

Where, before the voir dire had begun in a capital murder trial, a roll call of the expected witnesses showed that one witness for the state had not yet arrived and a deputy prosecutor remarked: “I don't know what's happened to him unless he's gotten killed,” a mistrial was properly denied because the remark was just a comment that had nothing to do with the trial and did not impute anything to anyone. Holland v. State, 288 Ark. 435, 706 S.W.2d 375 (1986).

Where, in a capital murder prosecution, evidence indirectly showing that the defendant was in the penitentiary was admissible, it was not error for the prosecutor to have mentioned it in his opening statement. Rhodes v. State, 290 Ark. 60, 716 S.W.2d 758 (1986).

Due to the jury's verdict of guilt only as to second degree murder, defendant was not prejudiced by an asserted error in the trial court's denial of motions for directed verdict on capital murder charges. Hickson v. State, 312 Ark. 171, 847 S.W.2d 691 (1993).

Both the capital murder conviction and the death penalty sentence held invalid and set aside. Miller v. Lockhart, 861 F. Supp. 1425 (E.D. Ark. 1994), aff'd, 65 F.3d 676 (8th Cir. 1995).

Where the evidence of a premeditated and deliberated murder was overwhelming, the trial court's error was harmless. Greene v. State, 317 Ark. 350, 878 S.W.2d 384 (1994).

Joint trial of capital murder defendants upheld where joint trial was lengthy, lasting seventeen days, and perhaps separate trials would have taken twice as long and required twice as many jurors; the evidence was not difficult for the jury to segregate; the evidence was not significantly stronger against one defendant than the other; the testimony of one did not compel the other to testify; there was no significant disparity in criminal records of the defendants; and the trial judge thought the jurors could distinguish the evidence and apply the law intelligently to each offense and to each defendant. Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996), cert. denied, Echols v. Arkansas, 520 U.S. 1244, 117 S. Ct. 1853, 137 L. Ed. 2d 1055 (1997).

In defendant's trial for capital murder, the trial court erred in refusing to allow defendant to exercise all his peremptory challenges against certain Caucasian jurors where the State did not prove purposeful discriminatory intent; thus, reversal in regard to the Batson error was required. Holder v. State, 354 Ark. 364, 124 S.W.3d 439 (2003).

Denial of defendant's motion for a brain injury examination did not deprive defendant of a basic tool for his defense as defendant was examined by a psychologist and he failed to object to the admission of the psychologist's report into evidence; defendant could not assert that failure to appoint a head-injury expert rose to the level of protection afforded by the third Wicks exception as (1) defendant was given an opportunity by the trial court to renew the motion for an appointment of the expert but he failed to do so, (2) it was not the trial court's duty to adequately prepare and present defendant's defense, and (3) defendant's argument could not be reviewed as an issue that fell within the purview of Ark. R. App. P. Crim. 10(b)(iv) because it was not a serious error requiring the trial court to intervene and issue an admonition or declare a mistrial. Springs v. State, 368 Ark. 256, 244 S.W.3d 683 (2006), cert. denied, 550 U.S. 939, 127 S. Ct. 2257, 167 L. Ed. 2d 1100 (2007).

Mistrial should have been granted at a trial for capital murder pursuant to this section because a witness testified that defendant had previously been convicted of terroristic threatening for an incident involving the murder victim. Though there was no proof that defendant had been convicted of terroristic threatening, the state received the benefit of prejudicial testimony, and the statement was so prejudicial that it could not be cured by an admonition to the jury. Williams v. State, 2010 Ark. 89, 377 S.W.3d 168 (2010).

Underlying Felony.

It was not improper to charge a defendant with capital felony murder with aggravated robbery as the underlying felony although subsection (a) only lists “robbery” as one of felonies that can support such a charge, since the General Assembly could not conceivably have intended that robbery, which may involve no force, would support a charge of capital murder, while aggravated robbery, an inherently dangerous crime, would not. Simpson v. State, 274 Ark. 188, 623 S.W.2d 200 (1981); McClendon v. State, 295 Ark. 303, 748 S.W.2d 641 (1988).

Testimony held sufficient evidence to support the robbery allegation as the underlying felony to capital murders. Simpson v. State, 278 Ark. 334, 645 S.W.2d 688 (1983).

The evidence of underlying felony held sufficient to support a conviction for capital felony murder. Novak v. State, 287 Ark. 271, 698 S.W.2d 499 (1985); Findley v. State, 300 Ark. 265, 778 S.W.2d 624 (1989).

To prove capital murder the state must first prove the felony, so the felony becomes an element of the murder charge; because it is an essential element, a defendant cannot be tried separately for these crimes or punished for both. Cozzaglio v. State, 289 Ark. 33, 709 S.W.2d 70 (1986); Bussard v. State, 300 Ark. 174, 778 S.W.2d 213 (1989).

For the phrase “in the course of and in furtherance of the felony” to have any meaning, the underlying felony must have an independent objective which the murder facilitates. Burglary committed when defendant chased the victim into the victim's home before killing him could not serve as the underlying felony under subdivision (a)(1), since the intent to kill is what made the entry into the victim's home a burglary, and the burglary was no more than one step toward the commission of the murder and was not to facilitate the murder. Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987).

Subdivision (a)(2) (now subdivision (a)(3)) requires no underlying felony and aggravated robbery is not a lesser included offense of attempted capital murder under subdivision (a)(2) (now subdivision (a)(3)). Where aggravated robbery was not the underlying felony of the defendant's attempted capital murder charge, conviction should not be set aside since the attempted capital murder charge was pursuant to subdivision (a)(2) (now subdivision (a)(3)) and not (a)(1). Rhodes v. State, 293 Ark. 211, 736 S.W.2d 284 (1987).

The trial court should not have entered a judgment on conviction for aggravated robbery where aggravated robbery was the underlying felony relied upon by the state to establish the crime of capital murder. The robbery was an essential element of the crime of capital murder, and therefore the defendant could not have been sentenced for aggravated robbery. McClendon v. State, 295 Ark. 303, 748 S.W.2d 641 (1988).

Subdivision (a)(1) requires only one underlying felony to be merged into the capital murder conviction; it does not require that all other felonies charged at the same time be merged into the capital murder conviction. Richie v. State, 298 Ark. 358, 767 S.W.2d 522 (1989).

The crime of theft is not listed in the capital murder statute as an underlying offense which would support a capital murder charge. Clements v. State, 303 Ark. 319, 796 S.W.2d 839 (1990).

When capital felony murder is charged under this section, first-degree murder is a “lesser included offense” because the same evidence used to prove the former of necessity proves the latter. Therefore, an instruction on first-degree murder is required. Hill v. State, 303 Ark. 462, 798 S.W.2d 65 (1990).

A defendant cannot be convicted of capital felony murder under subdivision (a)(1) of this section where the underlying predicate felony is burglary if the object of the burglary is murder. Parker v. Lockhart, 797 F. Supp. 718 (E.D. Ark. 1992).

Although the penetration of the vagina and anus of the victim caused injuries which contributed to the death of the victim, the rape could be used as the underlying felony to support a capital murder charge; penetration of the vagina or anus of a person was not an act which was subsumed by the murder as the penetration was not necessary to cause the death. Warren v. State, 314 Ark. 192, 862 S.W.2d 222 (1993).

Though subdivision (a)(1) has been amended since 1988, aggravated robbery is a predicate felony for capital murder. Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995), cert. denied, Nooner v. Arkansas, 517 U.S. 1143, 116 S. Ct. 1436, 134 L. Ed. 2d 558 (1996).

Where trial court in capital felony murder case improperly submitted to the jury the issue of the underlying felony of first-degree escape, and the jury found defendant guilty of first-degree escape, defendant's conviction for capital felony murder was proper because it was supported by the jury's additional finding that defendant was guilty of the underlying felony of aggravated robbery, which issue was also submitted to the jury. Williams v. State, 347 Ark. 728, 67 S.W.3d 548 (2002).

Evidence was sufficient to prove defendant committed an aggravated robbery as the underlying felony on a capital murder charge under where the corpus delicti of the homicide was established by independent evidence and, therefore, the underlying felony could be shown by defendant's confession alone; further, the fact that defendant's friend wore a recording device for police did not render their conversation a custodial interrogation. Hall v. State, 361 Ark. 379, 206 S.W.3d 830 (2005).

There was substantial evidence that defendant committed felony capital murder, subdivision (a)(1) of this section, where the victim was a frail, disabled man who could not defend himself and this constituted substantial evidence that defendant killed the victim under circumstances manifesting extreme indifference to the value of human life and that he robbed the victim while armed with a deadly weapon and that he inflicted death in the course of that robbery. Sales v. State, 374 Ark. 222, 289 S.W.3d 423 (2008), cert. denied, Sales v. Arkansas, — U.S. —, 129 S. Ct. 2000, 173 L. Ed. 2d 1098 (2009).

Substantial evidence supported defendant's capital murder conviction under this section, as there was sufficient evidence that defendant committed the underlying felony of attempted robbery under §§ 5-3-201(a)(2), 5-12-102; defendant approached the victim with a weapon, demanded his phone, and pointed the weapon at the victim at point-blank range. Hicks v. State, 2017 Ark. 262, 526 S.W.3d 831 (2017).

Venue.

In a prosecution for capital murder where the victim was kidnapped in one county and murdered in another, venue was proper where the murder occurred. Fairchild v. State, 284 Ark. 289, 681 S.W.2d 380 (1984), cert. denied, Fairchild v. Arkansas, 471 U.S. 1111, 105 S. Ct. 2346 (1985).

Where the pre-trial publicity in a capital murder prosecution consisted of primarily brief factual accounts of the events and many did not refer to the defendant in any manner, the relatively few items which appeared after the defendant was charged concerned the defendant's return from a psychiatric examination, pre-trial motions, and hearing on those motions, and where during the voir dire of prospective jurors, each juror stated that he had no opinion as to the guilt or innocence of defendant and that he would follow the judge's instructions, the pre-trial publicity evidenced in the record was not so inflammatory that a wave of public passion against the defendant existed so as to prejudice his right to a fair trial; therefore, the motion for change of venue was correctly denied. Simmons v. Lockhart, 626 F. Supp. 872 (E.D. Ark. 1985), aff'd, 814 F.2d 504 (8th Cir. 1987).

Cited: Rodgers v. State, 261 Ark. 293, 547 S.W.2d 419 (1977); Pickens v. State, 261 Ark. 756, 551 S.W.2d 212 (1977); Baysinger v. State, 261 Ark. 605, 550 S.W.2d 445 (1977); Scott v. State, 263 Ark. 669, 566 S.W.2d 737 (1978); Swindler v. State, 267 Ark. 418, 592 S.W.2d 91 (1979); Davis v. State, 267 Ark. 507, 592 S.W.2d 118 (1980); Titus v. State, 268 Ark. 9, 593 S.W.2d 164 (1980); Cromwell v. State, 269 Ark. 104, 598 S.W.2d 733 (1980); Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980); Brewer v. State, 271 Ark. 254, 608 S.W.2d 363 (1980); Brewer v. State, 271 Ark. 810, 611 S.W.2d 179 (1981); Swindler v. State, 272 Ark. 340, 617 S.W.2d 1 (1981); Woodard v. State, 273 Ark. 235, 617 S.W.2d 861 (1981); Derring v. State, 273 Ark. 347, 619 S.W.2d 644 (1981); Renton v. State, 274 Ark. 87, 622 S.W.2d 171 (1981); Singleton v. State, 274 Ark. 126, 623 S.W.2d 180 (1981); Hayes v. State, 274 Ark. 440, 625 S.W.2d 498 (1981); Alexander v. Housewright, 667 F.2d 556 (8th Cir. 1981); Collins v. Lockhart, 545 F. Supp. 83 (E.D. Ark. 1982); Hill v. State, 275 Ark. 71, 628 S.W.2d 284 (1982); Gruzen v. State, 276 Ark. 149, 634 S.W.2d 92 (1982); Rhodes v. State, 276 Ark. 203, 634 S.W.2d 107 (Ark. 1982); Hall v. State, 276 Ark. 245, 634 S.W.2d 115 (1982); Rasmussen v. State, 277 Ark. 238, 641 S.W.2d 699 (1982); Hobbs v. State, 277 Ark. 271, 641 S.W.2d 9 (1982); Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982); Pickens v. Lockhart, 714 F.2d 1455 (8th Cir. 1983); Smith v. State, 279 Ark. 68, 648 S.W.2d 490 (1983); Mackey v. State, 279 Ark. 307, 651 S.W.2d 82 (1983); Rowe v. Lockhart, 736 F.2d 457 (8th Cir. 1984); Blue v. Housewright, 739 F.2d 320 (8th Cir. 1984); Bell v. Lockhart, 741 F.2d 1105 (8th Cir. 1984); Hogan v. State, 281 Ark. 250, 663 S.W.2d 726 (1984); Fairchild v. State, 284 Ark. 289, 681 S.W.2d 380 (1984); Elmore v. State, 13 Ark. App. 221, 682 S.W.2d 758 (1985); Pickens v. State, 284 Ark. 506, 683 S.W.2d 614 (1985); Chandler v. State, 284 Ark. 560, 683 S.W.2d 928 (1985); Burnett v. State, 287 Ark. 158, 697 S.W.2d 95 (1985); Pruett v. State, 287 Ark. 124, 697 S.W.2d 872 (1985); Novak v. State, 287 Ark. 271, 698 S.W.2d 499 (1985); Ginter v. Stallcup, 641 F. Supp. 939 (E.D. Ark. 1986); Roderick v. State, 288 Ark. 360, 705 S.W.2d 433 (1986); Craft v. State, 289 Ark. 466, 712 S.W.2d 303 (1986); Singleton v. Lockhart, 653 F. Supp. 1114 (E.D. Ark. 1986); Simmons v. Lockhart, 814 F.2d 504 (8th Cir. 1987); Simmons v. Lockhart, 709 F. Supp. 1457 (E.D. Ark. 1989); Singleton v. Lockhart, 871 F.2d 1395 (8th Cir. Ark. 1989); Ruiz v. State, 299 Ark. 144, 772 S.W.2d 297 (1989); Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990); Williams v. State, 303 Ark. 193, 794 S.W.2d 618 (1990); Porter v. Lockhart, 925 F.2d 1107 (8th Cir. 1991); Fretwell v. Lockhart, 946 F.2d 571 (8th Cir. 1991); Johnson v. State, 308 Ark. 7, 823 S.W.2d 800 (Ark. 1992); Smith v. State, 308 Ark. 390, 824 S.W.2d 838 (1992); Butler v. State, 311 Ark. 334, 842 S.W.2d 435 (1992); Tisdale v. State, 311 Ark. 220, 843 S.W.2d 803 (1992); Orndorff v. Lockhart, 998 F.2d 1426 (8th Cir. 1993); Dansby v. State, 319 Ark. 506, 893 S.W.2d 331 (1995); Nicholson v. State, 319 Ark. 566, 892 S.W.2d 507 (1995); Rucker v. State, 320 Ark. 643, 899 S.W.2d 447 (1995); Catlett v. State, 321 Ark. 1, 900 S.W.2d 523 (1995); O'Neal v. State, 321 Ark. 626, 907 S.W.2d 116 (1995); Jordan v. State, 323 Ark. 628, 917 S.W.2d 164 (1996); Wilkins v. State, 324 Ark. 60, 918 S.W.2d 702 (1996); Isbell v. State, 326 Ark. 17, 931 S.W.2d 74 (1996); Cox v. Norris, 958 F. Supp. 411 (E.D. Ark. 1996); Singleton v. Norris, 108 F.3d 872 (8th Cir. 1997); Isbell v. State, 326 Ark. 17, 931 S.W.2d 74 (1996); Bowden v. State, 328 Ark. 15, 940 S.W.2d 494 (1997); Rankin v. State, 329 Ark. 379, 948 S.W.2d 397 (1997); Henderson v. State, 329 Ark. 526, 953 S.W.2d 26 (1997); Roseby v. State, 329 Ark. 554, 953 S.W.2d 32 (1997); Cox v. Norris, 133 F.3d 565 (8th Cir. 1997); Landreth v. State, 331 Ark. 12, 960 S.W.2d 434 (1998); Noel v. Norris, 194 F. Supp. 2d 893 (E.D. Ark. 2002); Jimenez v. State, 83 Ark. App. 377, 128 S.W.3d 483 (2003); Coggin v. State, 356 Ark. 424, 156 S.W.3d 712 (2004); Rhodes v. State, 2009 Ark. App. 665 (2009).