The West Memphis 3
June 28th, 2003 | by aobaoill |Thanks to CultureCat I came across the case of the West Memphis 3. Not necessarily a ‘breaking news’ story, but one that deserves attention. As Henry Rollins says:
“Innocent, guilty, we don’t know, just like no one on the street knows,” Rollins said in an interview. “What will help us out is conclusive DNA evidence . . . and if the DNA evidence implicates them, then now we know for sure. As it is now, no one knows.”
The case raises questions regarding due process (including the right to competent counsel) as well as highlighting a tragic case which may have led to a panic that resulted in a miscarriage of justice.
21 Responses to “The West Memphis 3”
By laura stallings on Aug 18, 2003 | Reply
It is quite obvious who killed the three little boys. I don’t understand why they don’t investigate that one little boys stepdad. Can anyone see that he is crazy? He killed those little boys and there is no doubt about it. The bite marks found on the boys did not match any of the supposed killers, but the stepdad had all his teeth removed. And along with that he is a specialized stone cutter. Thank you
By Tara on Sep 5, 2003 | Reply
There is no way Damien, Jessie, And Jason did this heinous crime. For one the testimonials are crazy. Two girls said they heard Damien Echols say “I killed 3 little boys and before i get convisted I’m going to kill 2 more. I have alreasy picked out one” and that he said this in public at a softball game. There is no way if he did that crime he would say that in public! Then, they say they found Christophers penis in Damiens room. Why would he keep it, especially in his room!I dont think anyone would be stupid enough to do that. Plus, I heard that they’re wiccans. Wiccans respect nature and all creatures in it, including small children! And that they’re satanists. I have a satanist friend who is involved in a satanist church and onje of the churchs rules is to never harm children or animals. I think they’re being stereotyped because of they way they dress, their taste in music, etc. All of the evidence they have against them is crazy. The evidence that says their innocent makes sense, like the bite marks that didnt match. THEY DID NOT DO IT!!! FREE WEST MEMPHIS THREE!
By Megan on Sep 14, 2003 | Reply
Damien, Jessie, and Jason did NOT commit this crime… ive read the books seen the movie and all the 3 guys are innocent … John Mark Byers is the guilty party in this crime… there is no evidence agianst damien jessie and jason… it all points to byers… the wm3 need to be free’d and given a chance… sure they had jesse’s confession but the guys iq was 72… read all the storeys it all points to byers..
By Anslem on Oct 29, 2003 | Reply
While believing in the innocence of these young men and certainly having questions about John Mark Byers, I urge everyone to not rush to judgement about him. The evidence currently available regarding JMB is the same type of circumstantial evidence that has these young men in prison right now! Byers is odd, and many things seem to point to him as the killer, but there is no hard evidence that he is any more guilty than these men. I think this entire case needs to be re-examined by another group, perhaps the FBI, and the real killer(s) finally identified. The longer we wait, the less likely it is we will ever discover the truth!
By rhonedude on Nov 4, 2003 | Reply
I have done very extensive research on the wm3 case and based on all the information i have come across have come to the conclusion that serious reasonable doudt should have keep all 3 boys from being convicted of the crimes by the jurors presiding over them the judge and the police department and the jury had to have someone answer for the little boys death and jessie,jason,damien were the perfect weird kids to pin it on they should get a new trail with a fair judge and better suited for murder trail counsel
By Emilie on Jan 23, 2004 | Reply
I have been reading a researching alot about the WM3 and I am at a lost of words. It is SO clear who really killed these children, Chris Byers’ step father. From evert that I have read bout who the knife with the blood on it and all that shit. How can someone be so stupid or blind?? There is no evidence that any of these guys did and they should be FREE NOW!!! And I know alot of people have lended their support and so will I!! FREE THE WEST MEMPHIS THREE!!!!!!!
By unknown on Feb 26, 2004 | Reply
I say that Damien is guilty and the others are innocent. Look at his name: Damien. The name of the devil and he’s not guilty? I don’t think so!
By hm on Feb 28, 2004 | Reply
I know a lot of people named Charles and Jeffrey, so I guess that makes them mass murders. You obviously lack the ability to offer any value to a debate on innocence or guilt.
I’ve been a firm supporter of the WM3 for several years, although recently I read something disturbing regarding physical evidence belonging to Damien, that was withheld during trial due to fear of a mistrial.
Does anyone else know anything about his necklace that supposedly contained blood and hair of one of the victims?
By Nadia on Mar 4, 2004 | Reply
“Unknown”: Damien is the name of the Devil? In my 32 years of life, all of which have been spent as a devout Christian, I have never known that. Thank you for enlightening me!
HM, that was a rumor. There was a necklace which was found to have a little blood on it that matched one of the WM3 and one of the victims by BLOOD TYPE. Unfortunately, blood type is not at all reliable for identification purposes except for exclusion- There are 4 blood types, 2 Rh factors each, for a total of 8 different possibilities, for all humans on earth. Over 50% of people are type O, for example. That’s not specific enough to use for ANY sound conclusion.
Hopefully the DNA evidence will clarify exactly whose blood was on the necklace, the Byers knife, and any other pieces of evidence in the case.
By Dianne on Mar 7, 2004 | Reply
John Mark Byers is a murderer! He now lives in Millington, Tn . You can find his address in the internet white pages.
By Caitie on Apr 12, 2004 | Reply
Theres no way that anyone could say that they are guilty.Wheres the evidence we all know that it was that kids stepdad John mark Byers and he couldnt even keep to one story about anything.
By Heather on Apr 27, 2004 | Reply
There is no way that Damien, Jason and Jessie commited this crime.. None of the evidence is pointed towards them But evidence does point towards John Mark Byers what did they just miss that, o and all of a sudden 3 yrs later his wife ends up dead with no motive
By Tim Black on May 31, 2004 | Reply
Can someone enlighten me a bit here?…….You mean to tell me that not one outside party(excluding the wm3 support group)are interested in setting these boys free? Not one outside party is interested in freeing these boys and making a name for themselves? I find the whole thing to be a little beyond belief ! Southern ignorant hick prosecutors and/or courts aside,we live in an era where other govt officials can step in and take over where they feel justice hasn’t been -so why has there been no progress?
Why are these boys still in prison when there is no incriminating evidence against them,but a plethora of such against John Mark Byers?
By Lindsey on Jun 10, 2004 | Reply
I don’t know if John Byers is the killer, but after reading “The Devils Knot” by Mara Leveritt, I feel that he seriously has something to do with the murders and I want a fucking answer now! You guys, we need to set up a rally in West Memphis outside of the police building. Either that or all of us simultaneously send the FBI letters begging them to get involved and reopen the case. We have to take action. ANYONE IN THE CALIFORNIA AREA INTERESTED IN HAVING A RALLY OF SOME SORT, PLEASE EMAIL : five2980@aol.com.
By Pamela on Jul 7, 2004 | Reply
What I would like to know is when JMB and his buddy left to go “look for the boys” in an abandoned building where they saw an empty black van. I to this day have not found out where anyone has gone to that building or looked for that black van. JMB and his buddy said there were there in the middle of the night. Just the two of them. This was in the time frame of when the boys possibly were killed. Just wondering. If someone knows that they did investigate this area, I would appreciate the correction. It has been buggin me. Thanks 🙂
By Mitch on Jul 17, 2004 | Reply
Have any of you actually researched the case, because from these posts its obvious you havn’t to say there is no evidence to convict these three is absolutely not true, you may not agree it would prove someone guilty beyond a reasonable doubt but to say it doesn’t exist is absurd. And how on earth can you blame byers when there is absolutely NO evidence pointing towards his involvement in this crime. You claim to trumpet the innocently convicted however seem to have absolutely no problem saying someone is guilty with NO evidence at all solely based upon speculation. You seem to want to use speculation and guess when its to your advantage, but its wrong when others think they are guilty. That is not consistent with the goals of your movement. I have attached the Supreme Court Opinion that has an outline of the actual evidence presented at the trial
COUNSEL: Val P. Price and W. Scott Davidson, for appellant Damien
Wayne Echols.
Ford & Wadley, by: Paul N. Ford and George R. Wadley, Jr., for
appellant Charles Jason Baldwin.
Winston Bryant, Att’y Gen., by: David R. Raupp, Asst. Att’y Gen.,
and Vada Berger, Asst. Att’y Gen., for appellee.
JUDGES: Robert H. Dudley, Justice.
OPINIONBY: Robert H. Dudley
OPINION: [*934]
[**516] Robert H. Dudley, Justice.
Damien Echols and Jason Baldwin were convicted of the capital
murders of Michael Moore, Christopher Byers, and Steve Branch. For
each of the capital murders, appellant Echols was sentenced to
death, and appellant [*935] Baldwin was sentenced [***44] to
life imprisonment without parole. Both appellants appeal from their
convictions. Echols separately appeals the death sentences imposed
upon him. We affirm in full the judgments of conviction.
Michael, Christopher, and Steve were eight years old, in the second
grade, in the same Cub Scout troop, and often played together in
their West Memphis neighborhood. On the afternoon of May 5, 1993,
after school, Michael and Steve were riding their bicycles while
Chris was skateboarding. Deborah O’Tinger saw the three boys walking
through her yard between 5:45 and 6:00 that afternoon. Her
recollection was that they were pushing a bicycle. At about 6:00
p.m., Dana Moore, Michael’s mother, saw the three boys together. At
that time Michael was riding his bicycle. Between 6:30 and 6:45
Brian Woody saw four boys going into some woods known as the Robin
Hood woods. He noticed that two of the boys were pushing bicycles,
one had a skateboard, and a fourth one was just walking behind them.
Neither Michael, Christopher, nor Steve returned to their homes.
Their parents called the police, and a search was begun.
The next morning, members of the Crittenden County Search and Rescue
Unit discovered a tennis [***45] shoe floating in a ditch just
north of Ten Mile Bayou. The Robin Hood woods drain into Ten Mile
Bayou, and the members of the search unit knew the boys were last
seen in that area. Detective Mike Allen walked along the ditch bank
to the place where the tennis shoe had been found. He noticed that
one area of the ditch bank was cleared of leaves, while the rest of
the bank was covered with leaves and sticks. He described the
cleared area on the bank as being “slick,” but having “scuffs” in
the cleared-off area. He got into the water, reached down to get the
shoe, and felt Michael Moore’s body. The corpses of Christopher
Byers and Steve Branch were subsequently found about twenty-five
feet downstream. Policeman John Moore, who was also there, said
there was blood in the water, but none on the bank. Detective Bryn
Ridge was also present and helped recover the boys’ bodies. He
collected the victims’ clothes, three tennis shoes, and a Cub Scout
cap that was floating in the water. He found a stick stuck in the
mud that had one of the boy’s shirts wrapped around the end that was
stuck down in the mud. He dislodged another stick as he was removing
the corpse of Michael Moore.
All three [***46] corpses had their right hands tied to their
right feet, [*936] and their left hands tied to their left feet.
Black shoe laces and white shoe laces were used as ligatures.
Michael [**517] Moore’s body had wounds to the neck, chest, and
abdominal regions that appeared to have been caused by a serrated
knife. There were abrasions over his scalp that could have been
caused by a stick. Dr. Frank Peretti, a State medical examiner,
testified that there was bruising and discoloring comparable to that
frequently seen in children who are forced to perform oral sex. He
testified that there were defensive wounds to the hands and arms.
Moore’s anal orifice was dilated, and the rectal mucosa was
reddened. Dr. Peretti testified this injury could have come from an
object being placed in the anus. Finally, Dr. Peretti testified that
there was evidence that Moore was still alive when he was in the
water, as there was evidence of drowning.
Steve Branch’s corpse had head injuries, chest injuries, genital-
anal injuries, lower extremity injuries, upper extremity injuries,
and back injuries. The body had multiple, irregular, gouging wounds,
which indicated that he was moving when he was stabbed. The anus was
dilated. [***47] Penile injuries indicated that oral sex had been
performed on him. There was also evidence that he, too, had drowned.
Christopher Byers’s corpse also had injuries indicating that he had
been forced to perform oral sex. His head had scratches, abrasions,
and a punched-out area on the skin, and one eyelid had a contusion.
The back of the neck had a scrape. The inner thighs had diagonal
cuts on them. The back of the skull had been struck with a stick-
like, broomstick-size, object. The skin of the penis had been
removed, and the scrotal sac and testes were missing. There were
cuts around the anus, and the hemorrhaging from those cuts indicated
he was still alive when they were made. Many of the cuts were made
with a serrated blade knife. Byers did not drown; he bled to death.
The boys’ bicycles were found nearby.
On May 10, four days after the bodies were found, the police had not
solved the cases. When Detective Bryn Ridge questioned Echols, he
asked him how he thought the three victims died. Ridge’s description
of Echols’s answer is abstracted as follows:
He stated that the boys probably died of mutilation, some guy had
cut the bodies up, heard that they were in the water, [***48] they
may have drowned. He said at least one was cut up [*937] more than
the others. Purpose of the killing may have been to scare someone.
He believed that it was only one person for fear of squealing by
another involved.
At the time Echols made the statement, there was no public knowledge
that one of the children had been mutilated more severely than the
others.
On June 3, or almost one month after the murders, Detective Mike
Allen asked Jessie Lloyd Misskelley, Jr., about the murders.
Misskelley was not a suspect at the time, but Echols was, and it was
thought that Misskelley might give some valuable information about
Echols. Detective Allen had been told that all three engaged in cult-
like activities. Misskelley made two statements to the detective
that implicated Echols and Baldwin, as well as himself. The
statements can be found in Misskelley v. State, 323 Ark. 449, 459-
61, 915 S.W.2d 702, 707-08 (1996).
Misskelley, age seventeen, Echols, age nineteen, and Baldwin, age
sixteen, were jointly charged with the capital murders of Moore,
Byers, and Branch. Misskelley moved for a severance from Echols and
Baldwin, and the trial court granted the severance. Misskelley was
tried and [***49] convicted of first-degree murder in the death of
Michael Moore, and second-degree murder in the deaths of Steve
Branch and Christopher Byers. The judgments of conviction were
affirmed. Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996).
Appellants Echols and Baldwin were jointly tried in this case. In
the guilt-innocence phase of the trial, the jury found both Echols
and Baldwin guilty of the capital murders of all three victims. In
the penalty phase of the trial, the jury imposed death as the
punishment for Echols and fixed life imprisonment without parole as
the punishment for Baldwin. The trial court entered judgments of
conviction that imposed the sentences set by the jury. Echols’s and
Baldwin’s arguments together contain forty-four points of appeal,
and some of those points have subpoints. Some [**518] of the
points of appeal are made jointly by both appellants, but many are
individual arguments. For clarity, we group the arguments into seven
general categories.
Sufficiency of the Evidence Arguments
Echols questions the sufficiency of the evidence to convict him of
the three capital murders. In one of his arguments, he [*938]
contends that for circumstantial evidence to [***50] be
sufficient, it must exclude every reasonable hypothesis, and cites
as authority Traylor v. State, 304 Ark. 174, 801 S.W.2d 267 (1990).
Before narrating the testimony of his guilt, we again emphasize, as
we have often done, that although the jury should be instructed, as
it was here, that circumstantial evidence must be consistent with
the guilt of the defendant and inconsistent with any other
reasonable conclusion, AMI Crim. 106, this is not the standard by
which we review the evidence. Our responsibility 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. Cassell v. State, 273 Ark.
59, 616 S.W.2d 485 (1981). The jury must be convinced of the
accused’s guilt beyond a reasonable doubt, but we, not having had
the advantage of seeing and hearing the witnesses, are guided by the
substantial evidence rule. Cassell, 273 Ark. at 62, 616 S.W.2d at
486-87.
Moreover, two witnesses testified that they overheard Echols state
that he killed the three boys, and this was direct evidence. A
confession is sufficient to sustain a conviction if it is
accompanied [***51] by other proof that the offense was committed
by someone. Ark. Code Ann. 16-89-111 (1987); Leshe v. State, 304
Ark. 442, 803 S.W.2d 522 (1991).
The substantial evidence of Echols’s guilt is as follows. Anthony
and Narlene Hollingsworth were well acquainted with Echols and
testified that they saw Echols and his girlfriend, Domini Teer,
walking after 9:30 on the night of the murders near the Blue Beacon
Truck Stop, which is near Robin Hood woods where the bodies were
found. The witnesses testified that Echols had on a dark-colored
shirt and that his clothes were dirty. This evidence placed Echols
in dirty clothes near the scene at a time close to the murders.
Although not material to this point, other evidence established that
Domini Teer might be confused with Baldwin as both had long hair and
were of slight build.
Twelve-year-old Christy VanVickle testified that she heard Echols
say he “killed the three boys.” Fifteen-year-old Jackie Medford
testified that she heard Echols say, “I killed the three little boys
and before I turn myself in, I’m going to kill two more, and I
already have one of them picked out.” The testimony of these two
independent witnesses was direct evidence [***52] of the statement
by Echols. These witnesses were cross-examined by Echols’s counsel,
[*939] and it was the jury’s province to weigh their credibility.
Lisa Sakevicius, a criminalist from the State Crime Laboratory,
testified that she compared fibers found on the victim’s clothes
with clothing found in Echols’s home, and the fibers were
microscopically similar.
Dr. Frank Peretti, a State Medical Examiner, testified that there
were serrated wound patterns on the three victims. On November 17,
1993, a diver found a knife in a lake behind Baldwin’s parents’
residence. The large knife had a serrated edge and had the
words “Special Forces Survival Roman Numeral Two” on the blade. Dr.
Peretti testified that many of the wounds on the victims were
consistent with, and could have been caused by, that knife.
Deanna Holcomb testified that she had seen Echols carrying a similar
knife, except that the one she saw had a compass on the end. James
Parker, owner of Parker’s Knife Collector Service in Chattanooga,
Tennessee, testified that a company distributed this type of knife
from 1985-87. A 1987 catalog from the company was shown to the jury,
and it had a picture of a knife like the knife found behind
[***53] Baldwin’s residence. The knife in the catalogue had a
compass on the end, and it had the words “Special Forces Survival
Roman Numeral Two” on the blade. The jury could have made a
determination whether the compass had been unscrewed, and, in
assessing the probativeness of the location of the knife introduced
at trial, heard ample evidence that Echols and Baldwin spent
[**519] much time together. Therefore, it could have reasonably
concluded that Echols or Baldwin disposed of the knife in the lake.
The State’s theory of motive was that the killings were done in a
satanic ritual. On cross-examination, Echols admitted that he has
delved deeply into the occult and was familiar with its practices.
Various items were found in his room, including a funeral register
upon which he had drawn a pentagram and upside-down crosses and had
copied spells. A journal was introduced, and it contained morbid
images and references to dead children. Echols testified that he
wore a long black trench coat even when it was warm. One witness had
seen Echols, Baldwin, and Misskelley together six months before the
murders, wearing long black coats and carrying long staffs. Dr.
Peretti testified that some of the head [***54] wounds to the boys
were consistent with the size of the two sticks that were recovered
by the police.
[*940] Dr. Dale Griffis, an expert in occult killings, testified
in the State’s case-in-chief that the killings had the “trappings of
occultism.” He testified that the date of the killings, near a pagan
holiday, was significant, as well as the fact that there was a full
moon. He stated that young children are often sought for sacrifice
because “the younger, the more innocent, the better the life force.”
He testified that there were three victims, and the number three had
significance in occultism. Also, the victims were all eight years
old, and eight is a witches’ number. He testified that sacrifices
are often done near water for a baptism-type rite or just to wash
the blood away. The fact that the victims were tied ankle to wrist
was significant because this was done to display the genitalia, and
the removal of Byers’s testicles was significant because testicles
are removed for the semen. He stated that the absence of blood at
the scene could be significant because cult members store blood for
future services in which they would drink the blood or bathe in it.
He testified that the “overkill” [***55] or multiple cuts could
reflect occult overtones. Dr. Griffis testified that there was
significance in injuries to the left side of the victims as
distinguished from the right side: People who practice occultism
will use the midline theory, drawing straight down through the body.
The right side is related to those things synonymous with
Christianity while the left side is that of the practitioners of the
satanic occult. He testified that the clear place on the bank could
be consistent with a ceremony. In sum, Dr. Griffis testified that
there was significant evidence of satanic ritual killings.
Lisa Sakevicius, the criminalist who testified about the fibers,
stated that Byers’s white polka-dot shirt had blue wax on it and
that the wax was consistent with candle wax.
Detective Bryn Ridge testified that Echols said he understood the
victims had been mutilated, with one being cut up more than the
others, and that they had drowned. Ridge testified that when Echols
made the statement, the fact that Christopher Byers had been
mutilated more than the other two victims was not known by the
public. The jury could have reasonably concluded that Echols would
not have known this fact unless he were [***56] involved in some
manner.
Echols took the witness stand, and his testimony contained
additional evidence of guilt. When asked about his statement that
one victim was mutilated more than the others, he said he learned
[*941] the fact from newspaper accounts. His attorney showed him
the newspaper articles about the murders. On cross-examination,
Echols admitted that the articles did not mention one victim being
mutilated more than the others, and he admitted that he did not read
such a fact in a newspaper. The foregoing, together, constitutes
substantial evidence of the guilt of Damien Echols.
Jason Baldwin does not contend that there was insufficient evidence
of his guilt. This is, perhaps, in part, because of the testimony of
Michael Carson, who testified that he talked to Baldwin about the
murders. Carson’s testimony, in pertinent part, was abstracted as
follows:
I said, just between me and you, did you do it. I won’t say a word.
He said yes and he went into detail about it. It was just me and
Jason [Baldwin]. He told me he dismembered the kids, or I don’t
know [**520] exactly how many kids. He just said he dismembered
them. He sucked the blood from the penis and scrotum and put the
balls [***57] in his mouth.
Echols, in another argument relating to sufficiency of the evidence,
contends that the verdict in the penalty phase was erroneous because
the jury refused to find, as a mitigating circumstance, that he had
no prior history of criminal activity.
The jury was given AMI Crim. 1509, which included the mitigating
circumstance of no significant prior history of criminal activity.
It is important to note that this mitigating factor is set out
as “no significant prior history of criminal activity,” and not “no
significant prior history of prior convictions.” Ark. Code Ann. 5-
4-605(6) (Repl. 1993). The jury found that Baldwin had no
significant history of criminal activity, but refused to make the
same finding for Echols. This indicates that the jury carefully
weighed the evidence and determined that Echols should not be
credited with this mitigating factor. Even so, Echols contends the
jury committed error in refusing to find that he had no significant
prior history of criminal activity.
Echols and the State are in dispute about our law on this point, so
we set out our applicable holdings. In Bowen v. State, 322 Ark. 483,
911 S.W.2d 555 (1995), the mitigating [***58] circumstance sought
by the defendant was mental illness. Bowen adduced strong evidence
of mental illness, but the jury did not find that mental illness
[*942] was a mitigating circumstance. We held that even if the
evidence of the defendant’s mental illness was uncontradicted, the
jury was not required to believe the defendant’s evidence and was
not required to find such a mitigating circumstance. “A jury is not
required to find a mitigating circumstance just because the
defendant puts before the jury some evidence that could serve as the
basis for finding the mitigating circumstance.” Id. at 497, 911
S.W.2d at 561.
In Hill v. State, 289 Ark. 387, 713 S.W.2d 233 (1986), we held that
the jury did not have to find an eighteen year old’s youth was a
mitigating factor. We quoted Giles v. State, 261 Ark. 413, 421, 549
S.W.2d 479, 483 (1977), and held that “any hard and fast rule as to
age would tend to defeat the ends of justice, so the term youth must
be considered as relative and this factor weighed in the light of
varying conditions and circumstances.” Id. at 396, 713 S.W.2d at
237.
In Giles v. State, 261 Ark. 413, 549 S.W.2d 479 (1977), the jury
found no mitigating circumstances. [***59] We held that the jury
did not err in refusing to find that the defendant’s youth was a
mitigating factor. However, we held that the jury erred in failing
to find, as a mitigating factor, the fact that the defendant
committed the crime while his capacity to conform his conduct to the
requirements of the law was impaired as a result of mental disease
or defect. The record in Giles v. State was replete with evidence
that the defendant was an imbecile and had organic brain
syndrome “to the extent that the conclusion [was] inescapable that
the capacity of Giles to conform his conduct to the requirements of
law, when the capital felony was committed, was impaired as a result
of mental defect.” Id. at 424, 549 S.W.2d at 485. We wrote, “The
jury was not free to arbitrarily disregard reasonable testimony,
where other testimony is supportive, rather than conflicting, and no
questions of credibility are to be resolved, and it cannot be said
that it is physically impossible or that there is no reasonable
probability that it is true.” Id. In summary, our holdings provide
that a jury may generally refuse to believe a defendant’s mitigating
evidence, but when there is no question about [***60] credibility
and, when, in addition, objective proof makes a reasonable
conclusion inescapable, the jury cannot arbitrarily disregard that
proof and refuse to reach that conclusion. Here the jury was faced
with neither indisputable credibility nor objective proof that made
a reasonable conclusion inescapable. To the contrary, there was
substantial evidence of Echols’s history of [*943] prior criminal
activity.
Echols admitted on cross-examination in the penalty phase of the
trial that he had an altercation with his father in which a knife
was involved and the police were called. He admitted he was
hospitalized that same day, and when his father came to the
hospital, “I told him I would eat him alive.” He admitted [**521]
he tried “to claw the eyes out” of a student. Perhaps the most
compelling testimony on this point came from the cross-examination
of Dr. James Moneypenny, a psychologist who testified for Echols.
Dr. Moneypenny admitted that Echols had “an all powerful God-like
image of himself” and that his parents were concerned with his
satanism or devil worship. Dr. Moneypenny admitted that Echols’s
medical records contained the following notations of statements by
Echols:
I want to [***61] go where the monsters go. Pretty much hate the
human race. Relates that he feels people are in two classes, sheep
and wolves. Wolves eat sheep.Echols explains that he obtains his
powers by drinking blood of others. He typically drinks the blood of
a sexual partner or a ruling partner. This is achieved by biting or
cutting. It makes me feel like a god.Echols describes drinking blood
as giving him more power and strength … He has also agreed to
continue to discuss his issues with power and control as related to
his practice of rituals. I just put it all inside. Describes this as
more than just anger like rage. Sometimes he does ‘blow up.’ Relates
that when this happens, the only solution is to hurt someone. Echols
reports being told in the hospital that he would be another Charles
Manson or Ted Bundy. When questioned on his feelings he states, “I
know I’m going to influence the world. People will remember me.”
The jury, having heard the foregoing, did not arbitrarily refuse to
find that Echols had no significant history of criminal activity.
Severance Arguments
The Prosecuting Attorney jointly charged Misskelley, Echols and
Baldwin with [***62] the three capital murders. The trial court
granted [*944] a severance to Misskelley, and he was tried and
convicted. That left Echols and Baldwin jointly charged. Prior to
their scheduled trial, both moved for severance, and each renewed
the motions at various times during the trial, including at the
close of the State’s case. Neither argued for a severance of the
three capital murder charges; rather, each argued that he should be
granted a separate trial from the other. The trial court denied all
of the motions. Both Echols and Baldwin assign as error the trial
court’s rulings denying them separate trials.
Joinder and severance procedure is governed by Ark. R. Crim. P.
Article VI. These rules are calculated to promote the expeditious
disposition of criminal cases without putting undue strain on
prosecutorial or judicial resources, but, at the same time, without
causing prejudice to joint defendants. Rule 21.2 provides for the
joinder of defendants when the crimes were part of a joint scheme or
plan and so the capital murder charges were properly joined. The
issue is whether the trial court erred in refusing to grant a
severance for the accuseds’ trials. Rule 22.3 provides that
[***63] a trial court shall grant a severance if it is deemed
appropriate to promote a fair determination of the guilt or
innocence of one of the defendants.
Trial courts have discretion to grant or deny a severance and on
appeal we will not disturb the ruling in the absence of an abuse of
that discretion. Hallman v. State, 264 Ark. 900, 575 S.W.2d 688
(1979). In McDaniel v. State, 278 Ark. 631, 648 S.W.2d 57 (1983), we
held that, in determining whether to grant a severance, a trial
court should weigh: (1) whether the defenses of the defendants are
antagonistic; (2) whether it is difficult to segregate the evidence;
(3) whether there is a lack of substantial evidence implicating one
defendant except for the accusation of the other defendant; (4)
whether one defendant could have deprived the other of all
peremptory challenges; (5) whether one defendant will be compelled
to testify if the other does so; (6) whether one defendant has no
prior criminal record and the other has; (7) whether circumstantial
evidence against one defendant appears stronger than against the
other. Id. at 638, 648 S.W.2d at 57. Subsequently, in Rhodes v.
State, 280 Ark. 156, 655 S.W.2d 421 (1983), we [***64] said that
McDaniel does not say that in every case, even in capital cases,
where antagonistic defenses are presented the trial [**522] court
must grant a severance, but merely that when defenses are
antagonistic the trial court must be [*945] particularly careful
that neither defendant is “unduly jeopardized” by a joint trial. Id.
at 158-59, 655 S.W.2d at 422. More recently, we have written that
the presence of any one of the factors does not necessarily require
severance, as there are multiple factors to consider. Rockett v.
State, 319 Ark. 335, 891 S.W.2d 366 (1995).
Almost all of the factors clearly weigh in favor of a joint trial.
The 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; and there was no significant disparity in criminal
records of the defendants. The trial judge made various comments
when denying the severance motions, and those comments reflect that
he thought the jurors could [***65] distinguish the evidence and
apply the law intelligently to each offense and to each defendant.
The only argument that is of any consequence is the argument about
antagonistic defenses. Echols and Baldwin argue that they had
conflicting trial strategies, and, as a result, their defenses were
antagonistic. The State’s response is that antagonistic defenses
arise only when each defendant asserts his innocence and accuses the
other of the crime. Certainly, we have held that antagonistic
defenses arise when each defendant asserts his innocence and accuses
the other of the crime, and the evidence cannot be successfully
segregated. Cooper v. State, 324 Ark. 135, 919 S.W.2d 205 (1996);
Butler v. State, 303 Ark. 380, 797 S.W.2d 435 (1990); and McDaniel
v. State, supra. But those are not the facts before us. Closer to
the facts of this case, but not wholly dispositive of the argument,
we have held that when there was no reason the jury could not have
believed both defenses, the defenses were not antagonistic. Cooper
v. State, 324 Ark. at 140, 919 S.W.2d at 209. Other courts have
similarly held that where there was an evidentiary basis for the
jury to decide each defendant’s [***66] case separately, there was
no error in denying severance just because of inconsistent
strategies. E.g., United States v. Jenkins, 496 F.2d 57, cert.
denied, 420 U.S. 925 (1974); see also Wade R. Habeeb, Annotation,
Antagonistic Defenses as Ground for Separate Trials of Codefendants
in Criminal Case, 82 A.L.R.3d 245, 264 (1978).
Correspondingly, the Fifth Circuit Court of Appeals has written:
[*946] We hold that the defense of a defendant reaches a level of
antagonism (with respect to the defense of a co-defendant) that
compels severance of the defendant, if the jury, in order to believe
the core of the testimony offered on behalf of that defendant, must
necessarily disbelieve the testimony offered on behalf of this co-
defendant.
United States v. Berkowitz, 662 F.2d 1127, 1134 (5th Cir. 1981).
The Eleventh Circuit Court of Appeals followed the Fifth Circuit’s
statement and applied it with the following four-step analysis:
(1) Do the alleged conflicts with co-defendant’s defenses go to the
essence of the appellant’s defense?
(2) Could the jury reasonably construct a sequence of events that
accommodates the essence of both defendants’ [***67] defenses?
(3) Did the conflict subject the appellant to compelling prejudice?
(4) Could the trial judge ameliorate the prejudice?
Smith v. Kelso, 863 F.2d 1564, 1568 (11th Cir. 1989).
In summary, unless conflicting strategies go to the essence of co-
defendants’ defenses, and the conflicting strategies are so great
that both defendants’ defenses cannot be accommodated by the jury, a
trial court is not required to grant a severance. Here, the alleged
conflicting strategies did not reach that level. The defense of
each, in effect, was that he did not commit the crimes. Echols
presented an alibi defense that he was visiting friends with his
parents when the murders took place. Baldwin likewise presented an
alibi defense that relied upon [**523] the fact that he was at
school the day of the murders, was at home by ten o’clock that
night, and was never placed near the scene. Echols’s arguments about
conflicting strategy because of pretrial publicity and the reason he
took the name “Damien” did not go to the essence of his defense and
did not conflict with Baldwin’s defense. Similarly, Baldwin’s
complaints that Echols was placed near the scene, but he was not
[***68] seen there, do not go to the core of his defense that he
had nothing to do with the crimes. The contention that Baldwin could
have possibly argued that Echols placed the knife behind his trailer
does not relate to the core of his general denial. Baldwin contends
he was entitled to a [*947] severance because Echols testified at
trial, but nowhere in Echols’s testimony did he implicate Baldwin.
These alleged “conflicts in strategy” did not subject either
defendant to a compelling prejudice.
The only alleged conflicts in strategy that are of any significance
are Echols’s allegation that Baldwin said that he was under the
influence of Echols, and the complaints of both appellants that
their strategy conflicted on how to deal with the evidence of the
occult activities. Echols’s argument about Baldwin stating that he
acted under his influence is factually inaccurate. That statement
was made during counsel’s closing argument, and counsel actually
said that Baldwin might be vulnerable to a finding of guilt by
association, since he and Echols were friends. This statement by
counsel, apparently made in derision of the prosecution, clearly did
not cause a conflict with Echols to the extent that [***69] it
mandated severance. Thus, we are left with only the complaints about
strategy in how to deal with the evidence of occult activities.
Echols contends that his strategy would have been to openly admit
all evidence of satanic worship in order to show its absurdity,
while Baldwin contends that he wanted to exclude all of the
evidence. Again, this alleged difference in strategy did not go to
the general denial. Moreover, the jury obviously did not think the
proof of occultism was absurd, and it is doubtful that Echols would
have freely admitted satanic worship as a matter of strategy, even
if he had a real choice in the matter. Even had the trial court
granted motions for severance, the expert testimony would have been
admitted in a trial against Echols, and it also would have been
admitted against Baldwin, because of Michael Carson’s statement that
Baldwin told him he sucked blood from Christopher Byers, a satanic-
type act. In sum, this alleged difference in strategy did not go to
the essence of either defense, did not prevent the jury from
considering either defense, did not unduly jeopardize a fair trial,
and did not mandate a severance.
Baldwin separately argues that the trial court [***70] erred in
refusing to grant a severance when the deputy prosecutor questioned
Echols about his doodles on a piece of paper. The argument is
procedurally barred. Baldwin’s argument to the trial court was that
he was not notified, through discovery, of the paper. He argues to
this court, as he did to the trial court, that the questioning,
coupled with the fact that he was not provided the paper during
discovery, entitled him to a severance. At trial the deputy
prosecutor [*948] acknowledged that the State had inadvertently
violated the discovery rules. Baldwin responded that he would be
satisfied with a cautionary instruction to the jury that the
testimony on this point could only be used against Echols. The trial
court gave the requested cautionary instruction. Baldwin’s counsel
responded, “That satisfies us, Your Honor.” Baldwin’s counsel again
requested a severance, but did not mention the piece of paper with
the doodles on it. The trial court denied the motion and again
instructed the jury to consider the evidence only against Echols,
and not Baldwin. Thus, Baldwin did not ask for a severance because
of admission of a piece of paper with doodles drawn on it by Echols,
and he cannot make [***71] the argument for the first time on
appeal. Spears v. State, 321 Ark. 504, 905 S.W.2d 828 (1995).
Baldwin next argues that his conviction should be reversed because
the trial court made a “binding commitment” to grant a severance if
Echols testified, and that Echols testified but the trial court did
not grant a severance. In pretrial, the trial court stated that in
the event one of them testified, the other might then be compelled
to do so, and, “There’s case law on that, and [**524] the other
defendant would be entitled to an immediate mistrial.” In a similar
case, we held that this kind of ruling does not amount to a “binding
commitment.” In Ruiz v. State, 299 Ark. 144, 772 S.W.2d 297 (1989),
the trial judge told the defendants that if a conflict developed in
selection of jurors, a severance would be granted, because “that’s
the law.” Id. at 151, 772 S.W.2d at 301. This comment was made after
the trial judge refused to enlarge each defendant’s number of
peremptory challenges. Later, the defendants disagreed over some
jurors, and moved for a severance, which was denied. Id. We held
that the trial judge had not made a binding commitment, but had
alluded to the law as set [***72] forth in McDaniel v. State,
which states that one factor favoring severance is when one
defendant deprives the other of peremptory challenges. We held that
the trial court did not abuse its discretion by denying severance
when the facts had not developed to that point. Similarly, Echols
did not implicate Baldwin when he testified, and, as a result, the
trial court did not abuse its discretion in denying the severance.
Baldwin next insists that severance was required in these capital
cases as a matter of law. Before the Arkansas Rules of Criminal
Procedure were adopted, the trial court had discretion to grant
severance of defendants in all cases except capital cases, where
[*949] they were granted severance as a matter of right under Ark.
Stat. Ann. § 43-1802 (Repl. 1977). Baldwin contends that the
statute, an initiated act, is still in effect. To the contrary, in
McDaniel v. State, 278 Ark. 631, 648 S.W.2d 57 (1983), we held that
the cited statute had been superseded by Ark. R. Crim. P. 22, which
gives the trial court discretion to grant or deny a severance in all
cases. Id. at 636, 648 S.W.2d at 59. In Hallman v. State, 264 Ark.
900, 575 S.W.2d 688 (1979), we held that [***73] since the
adoption of Ark. R. Crim. P. 22, capital defendants no longer have a
right to separate trials. Id. at 904, 575 S.W.2d at 691. However, in
Clines v. State, 282 Ark. 541, 543, 669 S.W.2d 883, 885 (1984), in
dicta in a per curiam opinion, the court expressed doubt as to
whether the act had been superseded. We should not have expressed
any doubt about the matter in Clines because our holdings in
McDaniel and Hallman are clear that the act has been superseded by
Ark. R. Crim. P. 22. Moreover, Ark. Stat. Ann. § 43-1802 has been
repealed. The General Assembly adopted the Arkansas Code of 1987
Annotated by Act 267 of 1987. Section 4(a) of Act 267, codified as
Ark. Code Ann. § 1-2-103(a) (1987), specifically provides that “all
acts, codes and statutes, and all parts of them and all amendments
to them of a general and permanent nature in effect on December 31,
1987 are repealed,” with some exceptions not material to this case.
Section 4(a) of Act 267 repealed Ark. Stat. Ann. § 43-1802 and did
not reenact it. Ninety-seven of the one hundred members of the House
voted for Act 267, and thirty-three of the thirty-five members of
the Senate voted for it. 2 [***74] Journal of the House 1699
(1987); 3 Journal of the Senate 2134-35 (1987). Thus, Act 267 had
the two-thirds vote needed from each chamber of the General Assembly
to repeal an initiated act under Amendment 7.
Suppression of Evidence Arguments
Echols and Baldwin make a number of arguments contending that the
trial court erred in denying their motions to suppress evidence. The
facts underlying the arguments are recited as follows. On June 3,
1993, nighttime search warrants were executed for the residences of
Echols and Baldwin. The warrants each authorized a search for the
following:
black t-shirt; blue jeans with holes in knees; lace-up boots;
briefcase and contents of briefcase with photographs of young white
males; knives; any items contained in a list of items to compare
with Arkansas Crime Lab Evidence, which [*950] consisted of “blue,
green, red, black, and purple fibers, blue, yellow, red, paint or
plastic, and blue, red waxing type substance”; and cult or Satanic
materials.
A red robe, fifteen black t-shirts, and a white t-shirt were seized
from Baldwin’s house. Two notebooks that appeared to have satanic or
cult writings in them, a red t-shirt, blue jeans, and [***75]
boots were taken from Echols’s residence.
Both appellants make a number of suppression arguments. The first of
these is [**525] that Detective Bryn Ridge’s affidavit and
testimony supporting the warrant were false, and consequently the
trial court erred in refusing to suppress the evidence seized from
the searches.
In United States v. Leon, 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct.
3405 (1984), the Supreme Court held that the good-faith exception
does not apply when the issuing magistrate was misled by an affiant
who either knew the information given was false or acted in reckless
disregard of its truth or falsity. Id. at 923. Franks v. Delaware,
438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978), provides the
test for determining when a warrant falls outside the Leon good-
faith exception. Under Franks v. Delaware, a warrant should be
invalidated if a defendant shows by a preponderance of the evidence
that: (1) the affidavit contained a false statement which was made
knowingly, intentionally, or recklessly by the affiant; and (2) the
false statement was necessary to a finding of probable cause. Id. at
155-56. Further, if such a finding is made, the false material
should be excised and the remainder of the warrant examined to
determine [***76] if probable cause still exists. Id. If the
truthful portion of the warrant makes a sufficient showing of
probable cause, the warrant will not be invalidated. Id. The burden
of showing that an affiant knowingly and recklessly included a false
statement is upon the challenger of the affidavit. Id. at 171.
In Pyle v. State, 314 Ark. 165, 862 S.W.2d 823 (1993), we held that
the standard set out in Franks v. Delaware requires a knowing intent
to deceive, or a reckless disregard of truth. Id. at 175, 862 S.W.2d
at 828. “Matters omitted must be material circumstances which
contradict or dispel the incriminating factors in the affidavit and
which render what is in the affidavit effectively false because of
their nondisclosure.” Biggers v. State, 317 Ark. 414, 421, 878
S.W.2d 717, 721 (1994).
The affidavit of Detective Ridge contained the false statements that
appellants contend invalidate the warrant. In the affidavit,
[*951] Detective Ridge stated that Jessie Misskelley told him the
victims were tied with brown rope when they were actually tied with
shoestrings, and that the killings took place in the afternoon. The
latter statement is of no consequence because the [***77] record
reveals that the issuing magistrate, Judge Rainey, expressed some
concern about the time discrepancy, and, as a result, Inspector Gary
Gitchell testified under oath that he had taken an additional
statement from Misskelley, and, in it, Misskelley said the crimes
took place around 7:00 p.m.
Even if these two statements were false in material matters, and
even if Detective Ridge knew them to be false, the rest of the
warrant still made a sufficient showing for probable cause. See
Franks v. Delaware, supra. The warrant contained a sufficient
showing of the facts that Misskelley said he, Baldwin, and Echols
committed the murders; that Misskelley had knowledge of details of
the crime not known to the public; and the statement that evidence
connecting them to the crime could be found in the homes.
Baldwin separately argues that Detective Ridge knowingly and
intentionally misrepresented the truth when he swore that Echols,
Baldwin, and Misskelley were members of a cult. We summarily dismiss
this argument because Jessie Misskelley told Inspector Gitchell that
the three were in a cult, and Detective Ridge testified at the
suppression hearing that he had learned from other sources [***78]
that the three were in a cult. Thus, Baldwin did not meet his burden
of showing that Detective Ridge knowingly and intentionally stated a
falsehood. See Franks v. Delaware, supra.
Echols and Baldwin next contend that the circuit judge erred in
finding that the municipal judge who issued the warrants was neutral
and detached in determining whether to issue the warrants.
Detective Bryn Ridge testified that Judge Rainey informed the
officers “as to the elements that needed to go in the affidavit in
order for it to be a legal document.” Judge Rainey testified that he
advised the officers that, after the search warrant had been
executed, they should make sure that they wrote out everything they
did on the affidavit.
[**526] The general rule for the application of the Fourth
Amendment exclusionary rule to evidence seized under an invalid
warrant is set out in United States v. Leon, 468 U.S. 897, 82 L. Ed.
2d 677, 104 S. Ct. 3405 (1984). There, the Court carved out the good-
faith exception to the requirement [*952] of a valid warrant. Id.
at 922. One of the errors that an officer’s good faith will not cure
is that which occurs when the magistrate wholly abandons his
detached and neutral judicial role. Id. When a judicial [***79]
officer becomes so involved in the investigation as to be deemed a
participant, he has abandoned this role. Lo-Ji Sales, Inc. v. New
York, 442 U.S. 319, 60 L. Ed. 2d 920, 99 S. Ct. 2319 (1979). For
example, when a magistrate accompanies the police to the scene and
orders seizure of items, his objectivity is lost. Id. at 327.
Likewise, when a magistrate gives the prosecutor directives about
areas of inquiry or grants immunity to witnesses, he has lost his
objectivity. See State v. Guhl, 140 Ga. App. 23, 230 S.E.2d 22
(1976). Here, the proof showed that the issuing magistrate stated
the elements necessary for a valid warrant, and that included
telling the officers to record on the warrant the actions they took
when they executed the warrant. On such proof we cannot say that the
ruling of the trial court was clearly in error. Hudson v. State, 316
Ark. 360, 872 S.W.2d 68 (1994).
Both Echols and Baldwin contend that the trial court erred in ruling
that Jessie Misskelley was a reliable informant. Again, we cannot
say that the trial court’s ruling was clearly against the
preponderance of the evidence. Hudson v. State, supra. Even though
Misskelley’s initial statement was in error about the ligatures
[***80] and the time of the killings, he corrected the latter and
he clearly knew that Christopher Byers had been castrated and that
one of the victims had been cut in the face. This information was
not known by the public at the time he supplied this information.
Further, Detective Ridge corroborated these statements by his own
knowledge gained at the crime scene, and through contacts at the
state crime laboratory. Even more important, Misskelley implicated
himself in the murders because he admitted that Michael Moore
attempted to escape from the crime scene, and he chased and caught
Moore and brought him back. Thus, the finding that Misskelley was a
reliable informant was not clearly in error. See Wilson v. State,
317 Ark. 548, 878 S.W.2d 755 (1994), rev’d on other grounds, 514
U.S. 927, 131 L. Ed. 2d 976, 115 S. Ct. 1914 (1995); Watson v.
State, 291 Ark. 358, 724 S.W.2d 478 (1987).
Both Echols and Baldwin next contend that the warrant did not
describe with particularity the items to be seized. We quickly
dismiss the argument. All of the items to be seized were described
with particularity, except the fibers to be seized for the crime
laboratory, and it is difficult to think of a way the warrant
[*953] could have [***81] been more specific than to describe, as
it did, the blue, green, red, black, and purple fibers; blue,
yellow, red, paint or plastic; and blue or red waxing-type
substance.
Both appellants also contend that the warrant authorized a “dragnet”
fishing expedition for “mere evidence.” In Warden v. Hayden, 387
U.S. 294, 18 L. Ed. 2d 782, 87 S. Ct. 1642 (1967), the Supreme Court
held that the Fourth Amendment allows the seizure of not only the
implements of the crime, but also allows the seizure of mere
evidence providing that there is a probable cause to believe the
evidence sought will aid in a conviction.
Echols and Baldwin next contend that the trial court erred in
refusing to suppress the evidence seized because it was a nighttime
search.
The nighttime clause in the affidavit stated:
Your affiant prays that this SEARCH WARRANT be approved for both
night time and day time service for the following reasons:
A. The objects to be searched for are in imminent danger of removal,
could be destroyed or disposed of as suspects are close friends and
members of a close-knit cult group. It is extremely likely that
information of the detention of one of the cult members will result
in the immediate destruction of [***82] items of evidence, or
place such objects to be seized in danger of imminent removal. One
of the suspects is [**527] in custody at the time of the execution
of the affidavit.
Rule 13.2 of the Arkansas Rules of Criminal Procedure provides for
nighttime searches as follows:
Except as hereafter provided, the search warrant shall provide that
it be executed between the hours of six a.m. and eight p.m., and
within a reasonable time, not to exceed sixty (60) days. Upon a
finding by the issuing judicial officer of reasonable cause to
believe that:
. . . .
(ii) the objects to be seized are in danger of imminent
removal; . . . .
Ark. R. Crim. P. 13.2(c)(ii).
[*954] In reviewing whether the requirements of the rule were met,
we conduct an independent determination based upon the totality of
the circumstances and reverse only if the trial court’s ruling was
clearly against the preponderance of the evidence. Richardson v.
State, 314 Ark. 512, 863 S.W.2d 572 (1993). The evidence presented
to the magistrate from whom a nighttime search is requested must be
of facts justifying a warrant rather than mere conclusions. Neal v.
State, 320 Ark. 489, 898 S.W.2d 440 (1995).
Here, there were facts [***83] stated to support the conclusion
that the evidence was in danger of imminent removal. Detective Ridge
testified at the hearing that his investigation revealed that
appellants and Misskelley were close-knit members of a cult, and,
upon Echols and Baldwin discovering that Misskelley had been taken
into custody, Echols and Baldwin were likely to destroy any evidence
that might be in their possession or at their residence, such as
photographs, knives, and clothing. In light of this testimony, the
trial court’s conclusion that the nighttime search was justified was
not against the preponderance of the evidence. See Neal v. State,
supra.
Evidence Arguments
Echols and Baldwin make numerous arguments about evidentiary rulings
throughout the trial. Many of their objections concerned admission
of evidence regarding the occult. The State sought to prove that the
murders were cult-related and that someone with Echols’s interest in
the occult could have committed the murders. Baldwin argued
throughout that the State had failed to connect him with occult
activity.
Occult activity. In one of these arguments, Echols contends that the
trial court erred when it ruled that Dr. Dale [***84] Griffis was
qualified as an expert in the field of occultism. Echols contends
that Dr. Griffis was not qualified as an expert because he received
a Masters degree and Doctor of Philosophy degree from a university
that, although state certified, was not nationally accredited. Also,
he wrote his dissertation with another person, and he did not
demonstrate that he had reputable training, education, and
experience.
Qualification of expert witnesses is within the sound discretion of
the trial court and will not be reversed absent a showing of abuse.
If there is a reasonable basis to find that the witness has
knowledge of a subject beyond that of ordinary knowledge, [*955]
the witness may be qualified as an expert. Stout v. State, 320 Ark.
552, 898 S.W.2d 457 (1995). Here, proof showed that Dr. Griffis
holds an associate in arts degree and a bachelor’s degree from an
accredited institution, but his advanced degrees are from Columbia
Pacific University, which is not nationally accredited. Another
qualification was that his doctoral dissertation was on mind control
and cults and their effects on the objectives of law enforcement.
His first experience with nontraditional groups was in 1967,
[***85] almost thirty years ago, and he has twenty-six years of
experience in law enforcement. For short periods of time, he worked
for the Los Angeles and San Francisco Police Departments, where he
gained experience in nontraditional groups. He testified that he has
talked to about 500 former members of the occult and read about 300
books on the subject. He testified that he receives approximately
sixty-five to seventy calls a week regarding nontraditional groups,
and about eighty percent of those calls are related to satanism. He
has published four books on the subject. He has testified as an
expert [**528] witness in state courts in Georgia, Ohio, and
Michigan; in federal court in Ohio; and in two foreign countries. He
has lectured in twenty-eight states and two other foreign countries.
Dr. Griffis had much more than ordinary knowledge of nontraditional
groups, the occult, and satanism, and the trial court did not abuse
its discretion in allowing him to testify as an expert witness.
Echols next contends that Dr. Griffis should not have been allowed
to testify that the murders had the “trappings of occultism” because
there was no testimony that the field of satanism or occultism is
generally [***86] accepted in the scientific community. The
argument is without merit, as the trial court did not allow the
evidence to prove that satanism or occultism is generally accepted
in the scientific community. Rather, the trial court admitted the
evidence as proof of the motive for committing the murders.
In a related vein, Echols makes a two-fold argument that the trial
court erred in allowing evidence of his interest in the occult. He
argues that the ruling violated his First Amendment rights and that
the trial court abused its discretion in determining that the
evidence was relevant and more probative than prejudicial.
The First Amendment argument can be quickly dismissed. In Dawson v.
Delaware, 503 U.S. 159, 117 L. Ed. 2d 309, 112 S. Ct. 1093 (1992),
the Supreme Court held that the introduction of evidence of beliefs
and associations violates a defendant’s constitutional rights when
there is no [*956] connection between those beliefs and
associations and the crime. But the Court expressly distinguished
Barclay v. Florida, 463 U.S. 939, 77 L. Ed. 2d 1134, 103 S. Ct. 3418
(1983), in which it held that dissident beliefs and racial hatred
stemming from the defendant’s membership in the Black Liberation
Army were relevant to the murder of a white victim, and, [***87]
as such, his First Amendment rights were not violated. Dawson v.
Delaware, 503 U.S. at 164. The case at bar falls within the ambit of
Barclay v. Florida.
Echols makes several relevancy arguments regarding physical evidence
of occult activity. The trial court allowed the State to introduce
into evidence a journal that contained matters handwritten and drawn
by Echols. The entries contain numerous images of death, as well as
references to rotting flesh and dead children. The State focused
upon an entry that said “I want to be in the middle. In neither the
black nor the white. In neither the wrong nor the right.” The State
offered the statement to explain the confusion expressed by the
occult expert, Dr. Griffis, that some of the symbols in one of
Echols’s books were from the Wiccan, or “white magic” religion, and
others from satanism, or “black magic,” and the two are not
consistent. Echols first objected on the ground of the best-evidence
rule, and the State responded that it would supply the original.
Echols’s counsel responded, “We request that the entire book and all
my client’s writings be introduced into evidence. We object to part
being taken out.” The trial court ruled [***88] that the entire
journal would be received. Thus, the trial court ruled in Echols’s
favor, and a party cannot obtain relief from a favorable ruling.
Smith v. State, 316 Ark. 407, 872 S.W.2d 843 (1992).
The trial court also allowed in evidence, over Echols’s objection,
items taken from Echols’s room in a juvenile court proceeding in
1992. The items had been kept in his juvenile court file. These
items included a dog’s skull; a manual; a funeral register upon
which Echols had drawn a pentagram and upside-down crosses and had
copied various spells; a heavy-metal poster depicting graveyards; a
skateboard magazine; and pictures of various posters. On appeal,
Echols contends that the items were not admissible because they were
not relevant and because they came from his juvenile court file.
The State’s expert, Dr. Griffis, testified that the manner of the
killings, the age of the victims, the way the victims [*957] were
tied, the removal of genitals, and the evidence of bloodsucking were
indicative of occult activity, and he referred to five of the
exhibits from the juvenile court file during his testimony. The
evidence was relevant to show motive. We have said that when the
purpose of [***89] evidence is to show motive, anything [**529]
and everything that might have influenced the commission of the act
may, as a rule, be shown. Cooper v. State, 324 Ark. 135, 919 S.W.2d
205 (1996). The State is entitled to produce evidence showing
circumstances which explain the act, show a motive for killing, or
illustrate the accused’s state of mind. Smith v. State, 310 Ark.
247, 837 S.W.2d 279 (1992). Further, a trial court’s ruling on
relevancy, as well as prejudicial impact, is afforded great
deference by a reviewing court and will not be disturbed absent an
abuse of discretion. Bennett v. State, 297 Ark. 115, 759 S.W.2d 799
(1988).
It is true that the items came from Echols’s juvenile court files,
but Ark. Code Ann. § 9-27-309(a) gives the juvenile court discretion
to open files. The trial court noted that the juvenile court had, by
order, opened the files for the State.
A book, Never on a Broomstick, which is about the history of
witches, was found in Echols’s room after the murders. Again, it was
relevant to show Echols’s interest in the occult.
Echols and Baldwin make yet another relevancy argument. In its case-
in-chief, the State called Jerry Driver, a juvenile [***90]
officer, to testify that he saw Echols, Baldwin, and Misskelley
walking together six months before the murders, and that they were
wearing long black coats and carrying long sticks or staffs. Echols
and Baldwin each made an objection based on relevancy. The trial
court ruled that the murders could have been committed with staffs
and that they could have been occult murders; therefore, the
evidence was relevant.
To be relevant, it is not required that evidence prove the entire
case or even a single issue. Ford Motor Co. v. Nuckolls, 320 Ark.
15, 894 S.W.2d 897 (1995). All that is required is that it have “any
tendency” to make any fact that is of consequence to the
determination of the action more or less probable. Ark. R. Evid.
401. Here, the State’s theory was that the murders were cult-
related, and there was additional evidence about occult practices.
This evidence provided a circumstantial link and was therefore
relevant.
Baldwin argues that the occult evidence should not have been
[*958] admitted because there was “little if any” evidence to link
him to such activity, and the only reason for it to be admitted
against him was to inflame the jury. Prior to trial, Baldwin filed a
motion [***91] in limine to prevent the State from eliciting
testimony that the crimes were occult-related without first
conducting an in camera hearing to determine that there was a
sufficient basis to find that he was involved in such activities and
that the activities were a motive in the homicides. The trial court
granted the motion “until such time as the Court is convinced in an
in camera proceeding that there is competent evidence that [Baldwin]
was involved in occult and/or occultic type activities and/or that
this crime is indicative of a ritualistic occult killing.”
The trial court subsequently found that Michael Carson’s testimony
that Baldwin told him he had dismembered one of the boys, sucked the
blood from his penis and scrotum, and put the testicles in his mouth
was evidence by which a jury could conclude that he was involved in
occultic-type activities. From the in camera testimony of Dr. Dale
Griffis, an expert on ritual killings, there was evidence by which a
jury could find that the crimes were a ritual killing. Dr. Griffis
stated that one of the facts that led him to believe that the
killings were cult-related was that Christopher Byers was castrated
and had had the [***92] blood sucked from his penis. Thus, there
was sufficient evidence of Baldwin’s participation in occult
activities, and the trial court correctly allowed the evidence. See
Snell v. State, 290 Ark. 503, 721 S.W.2d 628 (1986). In United
States v. Mills, 704 F.2d 1553 (11th Cir. 1983), in affirming a
trial court’s decision to admit evidence that the defendant was
associated with the Aryan Brotherhood, a white supremacist group
that exists in prisons, the Eleventh Circuit Court of Appeals said:
Such evidence … is now considered proper if it is linked together
in time and circumstances to the crime charged, or if it forms
an “integral and natural” part of the account of the circumstances
of the crime, [**530] or is necessary “in order to complete the
story of the crime on trial.”
Id. at 1559 (citations omitted).
Echols called Robert Hicks as an expert witness who has done
extensive studies and consulting about cult crimes. Hicks testified
that the murders were not cult-related. Echols’s counsel sought to
question Hicks about the opinion of Ken Lanning, an FBI expert
[*959] on cult crimes. Counsel asked Hicks if he was familiar with
Lanning’s writings and if he knew Lanning’s opinion [***93] on
cult-related crimes. The State objected on the basis of hearsay, and
the trial court sustained the objection. The court said that Hicks
could state his own opinion, but not the opinion of someone else.
Echols assigns the ruling as error.
The scholarly treatise exception, Ark. R. Evid. 803(18), provides:
Learned treatises. To the extent called to the attention of an
expert witness upon cross-examination or relied upon by him in
direct examination, statements contained in published treatises,
periodicals, or pamphlets on the subject of history, medicine, or
other science or art, established as a reliable authority by
testimony or admission of the witness or by other expert testimony
or by judicial notice. If admitted, the statements may be read into
evidence but may not be received as exhibits.
Id. (emphasis added). The rule applies to a particular statement
from a particular treatise, not to a general opinion of another
expert based upon a generalized familiarity with the expert. Here,
no foundation was laid about a particular treatise to which the
witness could refer, and no foundation was laid about the
reliability of the expert on the subject. Before a treatise
[***94] may be used, its reliability must be established. Davies v.
State, 286 Ark. 9, 688 S.W.2d 738 (1985). Since the trial court was
not apprised of a particular treatise, or its reliability, the
hearsay objection was correctly sustained. Moreover, Echols could
not have suffered any prejudice from the ruling because the
information was later given to the jury. On redirect, Echols’s
counsel asked Hicks if his book gave the following Lanning
statement, “Bizarre crime and evil can occur without organized
satanic activity. The law enforcement perspective requires that we
distinguish between what we know and what we are not sure of.” Hicks
said the statement was in his book, and he agreed with it.
On cross-examination, the State asked Hicks about the philosophies
of Aleister Crowley, a turn-of-the-century British writer who
supposedly condoned human sacrifice. Echols objected on the ground
that he had not been allowed to ask about quotations from Lanning.
Echols’s counsel stated that both sides should be [*960] treated
equally. The court responded that the witness could give his own
opinion, or testify about his familiarity with the works of another
person in the field, but he could not adopt [***95] the other
expert’s opinion as his own. After Hicks testified that he
had “mixed feelings” about whether Crowley espoused human sacrifice,
the State asked if Hicks was familiar with Crowley’s book, Magic in
Theory and Practice, and he said that he was. There was no attempt
to prove reliability, but Echols did not object to this lack of
foundation and does not complain of it on appeal. Rather, in this
point, he argues that the law-of-the-case doctrine prohibited the
court from making a different ruling on the same argument. The
argument is without merit. The rulings were not inconsistent, but,
even had they been inconsistent, the law-of-the-case doctrine was
not applicable. While the doctrine is not limited to appeals and may
be applied to issues raised in a continuing lawsuit, Fairchild v.
Norris, 317 Ark. 166, 876 S.W.2d 588 (1994), when applied in a
continuing suit, the doctrine is different from when applied to
subsequent appeals. As Justice Holmes wrote in Messenger v.
Anderson, 225 U.S. 436, 56 L. Ed. 1152, 32 S. Ct. 739 (1912), this
doctrine, when applied to the effect of previous orders on the later
action of the court rendering them in the same case, “merely
expres
By Jill on Jul 21, 2004 | Reply
Damien,Jason and Jessie did not kill these boys, the witness who testified against Jason was in a drug group in jail and the leader of that group informed him of what was happening then told the leader he was going to say he had talked to Jason and Jason admitted it, The leader called Jason’s attorneys and informed them yet they were unable to use that information in court. The black man that went into the bojangels restaurant which is right by the Robin Hood woods was covered in mud and blood mumbeling things and went into the girls restroom. The polie were called and the officer who got the call went through the drive-thru and did not enter. Police later went to the restaurant to examine it the next day. The evidence was contaminated because the officers who delt with the bodys in the woods did not change clothes before entering the restaurant so it was contaminated with whatever evidence was on the shoes and clothing of the officers. Teeth marks were later found on one of the 8 year olds and examined and did not match Jason, Jessie or Damien’s teeth. Courts ruled it was a belt buckle when earlier in the day Mr. Byers hit his step son with a belt for being late from comming home from riding his bike and told to clean the Car port. Why was Mr. Byers not arrested for Child Abuse?? After Mr. byers and his wife moved the neighboors had to put a restraining order against Mr. Byers for hitting their child. Another incodent Mr. byers gave a child a knife and watched with a shot gun as this child beat up another child, the shot gun was so that any passerbyers wouldnt be able to stop the fight. The Knife found in the lake behind Jason’s house had blood from Mr. Byers and his step son on it. Watch the movies Paradise Lost and Paradise Lost 2 Revelations read more into it Jason Jessie and Damien are INNOCENT!!!!!!!!!!
By Autumn on Aug 11, 2004 | Reply
I have read the court case posted by a former visitor. I must say I WANT TO BELIEVE that the three boys were murdered by mr. byers, but the court case was so overwhelming that I have to say that I lean more toward to Damien Echols then Mr. Byers. I am reminded by the vampire killings involving teenagers. Teenagers are very capable of doing these kind of horrific crimes. I was in a hospital for treatment of sexual abuse and there was a teenager who was there because he didnt want to go to jail,so we was hiding there. him and 4 of his friends hacked up and beat up another teenage boy with a knife and beat him so badly that they kicked his lower jaw OFF his body and buried him in a satanic cemetary, this was told to me BY THE BOY. I dont think this has anything to do with fashion, or beliefs, some kids are leaders while some are followers, children you would never think could hurt someone do under the power of someone else (case in point the Deltona murders of 6 over an xbox, the teenagers were recruited to get items back and the ringleader started killing everyone and the others joined in.) The case is entirely plausible. I think at the very least, the death penalty should be overturned for life in prison, until some hard evidence can surface that mr. byers was the culprit. In the event that popular opinion shall overturn the judicial system, and the boys are freed, what would popular opinion be if another crime was commited by one or all of the boys. Who then will be to blame? who will be made the scape goat then? We as humans are fallible. Sometimes we are wrong, sometimes we are right. Evil will try to convince us that there is innocence when there is not. We can only make the best decisions with the information we have so that we may protect ourselves and others. Dont make a rush to presume innocence if you cant establish a very strong guilty against another…having teeth pulled is not a murder make.
By Ernie on Aug 25, 2004 | Reply
I have alwyas been a strong believer in Damien, Jason and Jessie’s innocence ..but this was baised from reading Devils Knot and see the 2 documentaries ..upon reading the court papers etc. I have to admit I do not have the same belief that they are innocent. I feel like a fool all these years for buying into Biased media.
By JoJo on Sep 9, 2004 | Reply
I can certainly see both sides of the investigation. The only thing I’m not seeing anywhere is an answer to where Damien, Jason and Jessie were during the disappearance of the boys? Did they have an alibi? And why was John Mark Byers in such a rush to get a search party going? From what it sounds like the young boys were out often together for long periods of time. If the 3 were involved then they are where they should be – if they were not….God help us all.
By mel on Sep 12, 2004 | Reply
The first time I read into this case was about 5 years ago when I saw paradise lost for the first time. Ever since I have been following the case very closely. At first I thought the boys did it, then I tought it was Mr. byers, and now Im inbetween, but leaning towards the boys’ innocence. Regardless of the verdict, these boys deserve a fair trial. Does anyone know the awnsers to these questions?: 1) Have Mr. Byers’ dental records been examined? I used to work in a dental office and know that a dentist would not do a full mouth of extractions without a panoramic x-ray. Where is this x-ray and what can we determine from it? 2) The doodles on Damien’s notebook; are upside down crosses a wiccan thing? I did’nt think so, but I’m not sure what it exactly entails. 3) Jessie’s confession; is it the law to have to record the whole session during the confession? Is it the law to have parental consent or presence? If so, why was’nt this dismissed?
Thanks for reading my comments. Any feedback is appreciated.