|Appellate court reverses conviction in 2004 murder trial|
|Faith Huffman | News-Telegram News Editor|
Dec. 5, 2006 - The Sixth Appellate District Court of Appeal last month reversed the murder conviction of John Arlin Walters, sending the case back to Hopkins County for retrial, but the decision is being appealed.
Walters was convicted in October 2004 for fatally shooting his brother, Russell Lowell Walters Jr., in the Tabernacle Baptist Church parking lot in Pickton in January of that year. He was sentenced to serve 32 years in prison.
Matthew Paul with the Attorney General’s State Prosecutors’ Attorneys Office, which handles most federal and capital appellate litigation in the state, contacted 8th Judicial District Attorney Martin Braddy within a short time of the opinion being issued to offer to appeal the 6th Court’s decision with the state Court of Criminal Appeals. His motion for appeal was expected to be handed in Monday, the district attorney said.
That’s an uphill battle, however. First, the Criminal Court of Appeals, the highest criminal court in the state, has to agree to take the case, then review the lower appellate court’s findings. The court then has a number of options available to consider, including affirming the lower court’s opinion; requiring the lower court to review their opinion on each of the two issues cited and determine whether “the error harmed” the defendant at trial; or dismissing the lower court’s opinion, according to Braddy.
The district attorney said if the Criminal Court of Appeals either refuses to review the case or affirms the lower appeals court opinion, he will welcome the opportunity to retry the case.
�The second time around, the odds of conviction are higher, and the odds of a higher sentence are greater,� said Braddy, who added that the 32-year sentence for this type of offense was not typical of Hopkins County jurors. �I have no problem with another trial, and am confident of another conviction.�
The plea for appeal prepared by attorney Clifton L. “Scrappy” Holmes on Walters’ behalf alleged four areas in which “the trial court erred”:
1. The trial court refused to allow him to introduce evidence contradicting the state’s evidence;
2. Improper instruction to the jury at guilt/innocence phase;
3. Failure to grant a mistrial at the punishment phase when the state commented on Walters’ failure to testify; and
4. Admitted evidence of expert opinion.
Chief Justice Josh R. Morriss II and Justices Jack Carter and Donald R. Ross unanimously agreed that “Walters’ second point of error requires reversal and remand for a new trial.”
�Walters contends the trial court improperly instructed the jury during the guilt/innocence phase of the trial. Specifically, he contends the court erred by failing to properly instruct the jury concerning threats made by the deceased and the proper consideration of the jury concerning such threats. He also contends the charge erroneously limited his self-defense by including language regarding provocation when there was no evidence to support such a charge,� Justice Ross wrote in the appellate remand.
The court went on to say that the trial court “gave a somewhat confusing, cut-and-paste, instruction on self-defense.”
�In light of the fact that self-defense was the only real issued before the jury, we hold that the trial court�s failure to specifically instruct the jury concerning prior verbal threats by the decedent was �calculated to injure the rights of the defendant� and was, therefore, harmful and reversible error,� the court wrote.
The court disagreed whether an error was made regarding the use of three 911 tapes — one between the defendant and dispatchers and two calls from others reporting a shooting — but not a fourth tape, a call by the dispatcher to John Walters’ residence in which he spoke to the defendant. Justices Ross and Morriss penned an opinion that Walters 5th and 6th Amendment Rights were violated when the fourth tape was not included and the dispatcher was questioned regarding his impressions from the tapes.
The two judges said the fourth tape should have been admitted under the law of “optional completeness,” and that excluding the fourth conversation by sustaining a hearsay objection was an abuse of discretion. They ruled that the omission of the fourth tape left evidence “incomplete and misleading.”
The dispatcher’s account of John Walters’ demeanor while speaking to John Walters on the phone and the omitted tape forced the defendant to take the stand and become subject to cross-examination, a violation of his Fifth Amendment right. Ross and Morriss also found that “the defendant’s federal 6th Amendment right to confront and cross-examine adverse witnesses: to be violated.
Justice Carter, while agreeing that the court failed to instruct the jury concerning prior verbal threats, didn’t agree with the other judges’ analysis regarding the application of the rule of “optional completeness.”
He noted that while the state not mention that there was a fourth call, it was only addressed by the defense attorney during cross-examination of the dispatcher. Because the state failed to mention or enter any portion of the fourth tape, it did not meet the terms of the “optional completeness rule,” as it was a separate call and testimony from the dispatchers regarding the call did not “mislead, confuse, or leave a false impression with the jury,” Carter wrote in his opinion.
The judge said the questioning by the state was to show the peace officers trying to get Walters to surrender to authorities, but Walters wanted the tape admitted to “introduce his statements concerning threats Russell Walters made to him.”
�The call to Walters residence is not a continuation of the prior conversation that would require admission to complete the cycle of conversations. The telephone calls stand independently, and one is not needed to understand the other,� Carter wrote in his concurring opinion.
�A court abuses its discretion when its ruling is outside the zone of reasonable disagreement. ... In this instance, I do not believe that the trial court was outside the zone of reasonable disagreement in excluding the proffered testimony. I do not believe an abuse of discretion has been shown, and I would affirm this portion of the case,� Carter concluded.