HENDERSON v. STATE - Law - http://maxpages.com/arklaw/Henderson_v

HENDERSON v. STATE, 322 Ark. 402 91995)
Grover HENDERSON v. STATE of Arkansas
CR 95-326
Supreme Court of Arkansas
Opinion delivered November 13, 1995

NOTE: PORTIONS OF THIS OPINION THAT ARE NOT PERTINENT TO THE DISCUSSION ON SENTENCING AND CLEMENCY INJUSTICES HAVE BEEN EXCISED FOR THE SAKE OF BREVITY. ALL OTHER TEXT IS VERBATIM.

CRIMINAL LAW - SENTENCING - APPELLANT'S SENTENCE FELL WITHIN STATUTORY LIMITS - APPELLATE COURT NOT FREE TO REDUCE SENTENCE EXCEPTIONS TO GENERAL RULE. - The supreme court held that appellant's sentence fell within the limits set by the General Assembly for the offense; if the sentence fixed by the trial court is within legislative limits, the appellate court is not free to reduce it even though it might consider the sentence to be unduly harsh; the narrow exceptions to the general statement of the law are (1) where the punishment resulted from passion or prejudice, (2) where it was clear abuse of the jury's discretion, or (3) where it was so wholly disproportionate to the nature of the offense as to shock the moral sense of the community.

CRIMINAL LAW SENTENCING EVIDENCE SHOWED SALE OF DRUGS NOT ISOLATED INCIDENT NO PROOF OFFERED TO SHOW SENTENCE IMPOSED WAS CONTRARY TO MORAL SENSE OF COMMUNITY. - Where the evidence showed that appellant's sale of drugs was not an isolated incident, the supreme court held that the jury had every right to believe that appellant was no innocent bystander when (it) came to selling or delivering controlled substances; moreover, appellant offered no proof or argument showing that the sentence imposed was contrary to the moral sense of the community.

Appeal from Lafayette Circuit Court; Jim Gunter, Judge; affirmed.
The Law Offices of Damon Young, by John M. Pickett, for appellant.
Winston Bryant, Att'y Gen., by: Kent G. Holt, Asst. Att'y Gen., for appellee.

TOM GLAZE, Justice.

Appellant Grover Henderson was convicted of delivery of a controlled substance (three rocks of crack cocaine) and sentenced to life imprisonment. He was also fined $5,000. He appeals on multiple grounds. We affirm.

Jerry Revels was a resident of Stamps and a confidential informant of then Stamps Chief of Police, Al Dyar. Chief Dyar knew Revels was a drug user, and for a period of time he paid Revels $50 per drug buy to make cases for prosecution against drug sellers. On the night of April 23, 1993, Revels was involved in a drug buy for Dyar. According to the testimony of Dyar at trial, he and Revels had discussed making a buy from a person named Lamont Reynolds. Dyar first searched Revels and then gave him a micro-cassette tape recorder to record the events and $20 to purchase the cocaine. Dyar situated himself where he could observe the purchase. Dyar saw Revels talk with Reynolds and then continue on where Revels met Henderson. Dyar, who was thirty-five or forty yards down the road, stated that he saw Henderson pull a pill bottle out of his sock and remove a packet of tinfoil. Revels took the tinfoil and gave Henderson the $20 bill. When Revels returned to Dyar's truck, Dyar opened the tinfoil and saw three rock-like substances. Dyar rewound the tape and he and Revels listened to it on the return to the police station where the cocaine and tape were turned over to Joe Thomas of the drug task force. Later that same evening, Revels gave a handwritten statement in which he described buying "three rocks" from Henderson for $20.

On August 22, 1993, Revels signed an affidavit under oath at the request of Henderson's defense counsel. In that statement, he averred that Henderson, whose nickname was "Knot," had never sold him any rock cocaine during April of 1993. He stated Page 406 that he talked to Henderson on the night of April 23, 1993, about buying crack cocaine but that a sale was not made. He stated that Chief Dyar coached him to make the statement that he bought drugs from Henderson that night, although in reality he bought the cocaine from a person coming our of Henderson's house. He stated that Dyar threatened to use a burglary charge against him, if he did not implicate Henderson.

[12] Henderson next contends that his life imprisonment sentence for first offense delivery of crack cocaine constitutes cruel and unusual punishment, under the Eighth Amendment to the U.S. Constitution. We conclude, too this argument forms no basis for reversal. First, the sentence falls within the limits set by the General Assembly for the offense. See Ark. Code Ann. 5-64-401 (Repl. 1993). Secondly, we have held that if the sentence fixed by the trial court is within legislative limits, we are not free to reduce it even though we might consider it to be unduly harsh. Williams v. State, 320 Ark. 498, 898 S.W.2d 38 (1995); Parker v. State, 302 Ark. 509, 790 S.W.2d 894 (1990). We have carved out extremely narrow exceptions to this general statement (Page 412) of the law: 91) where the punishment resulted from passion or prejudice, (2) where it was a clear abuse of the jury's discretion, or (3) where it was so wholly disproportionate to the nature of the offense as to shock the moral sense of the community. (Citations omitted.)

[13] We note that the dissenting justices conclude Henderson's life sentence runs afoul of the moral sense of the community because Henderson only sold three rocks of crack cocaine and this was his first offense. Apparently, it is true that Henderson has not been convicted of selling crack before, but as we pointed out above, Henderson has been involved in at least another drug sale transaction which was known by the jury when it returned Henderson's life sentence. The jury had every right to believe that Henderson was no innocent bystander when it comes to selling or delivering controlled substances. In any event, Henderson offered no proof or argument showing the sentence imposed here was contrary to the moral sense of the community.

The record has been reviewed for other reversible error pursuant to Supreme Court Rule 4-3(h), and none has been found.

NEWBERN, BROWN AND ROAF, JJ., dissent.

Associate Justice ROBERT L. BROWN, dissenting.

The majority affirms a life sentence for a first offense involving a $20 sale of .238 grams of crack cocaine (3 rocks). This amounts to one strike and you're out. I would affirm the conviction and remand for re-sentencing on grounds that the sentence was so wholly disproportionate to the nature of the offense as to shock the moral sense of the community. As the majority opinion makes clear, that is one standard by which we gauge the propriety of sentences. Se, e.g., Williams v. State, 320 Ark. 498, 898 S.W.2d 38 (1995).

The sentence prescribed by the General Assembly for the delivery of less than 28 grams of cocaine is "not less than ten (10) years nor more than forty (40) years, or life" plus a fine not exceeding $25,000. Ark. Cod Ann. 5-64- 401(a) (1) (I) (Repl. 1993). The range for the jury to consider is very broad: 10 years to life imprisonment for a quantity of drugs up to 28 grams.

Henderson contends that a life sentence for first-offense delivery of three rocks of crack cocaine constitutes cruel and unusual punishment under the Eighth Amendment to the U.S. Constitution. I agree. This is the first time that a life sentence has been affirmed in this State where the defendant's crime was one offense and a first offense where the quantity of drugs sold was such a minor amount. While I am extremely reluctant to reverse the jury in this case on grounds that it did not represent the moral sense of the community, I must conclude that it dot not. The United States Supreme Court has held that under similar circumstances a reversal of the sentence is warranted. See Solem v. Helm, 463 U.S. 277 (1983). In Solem, the Court affirmed reversal of a sentence of life without parole for writing a $100 "no account" check. The defendant had 6 prior felonies. The majority did so for proportionality reasons, finding that Solem was treated more harshly in the state than were other criminals who committed more serious crimes. The Court affirmed reversal under the Eighth Amendment to the U.S. Constitution.

In the case before us, I conclude that an inference of gross disproportionality is evident when a first offense for a $20 sale of a minimal amount of crack cocaine garners a life sentence. A comparative analysis of convictions for drug sales which we have affirmed in recent years confirms that the sentencing was disproportionate to the crime:

Affirmed a ten-year sentence for sale of cocaine. Elders v. State, 321 Ark. 60, 900 S.W.2d 170 (1995).

Affirmed a 75-year sentence for selling 1 rock of crack cocaine where the defendant had 7 prior felony convictions. Williams v. State, 320 Ark. 498, 898 S.W.2d 38 (1995).

Affirmed a 15-year sentence for first count of a sale of a controlled sentence and life imprisonment for a second count for a drug sale occurring at a later date. Robinson v. State, 317 Ark. 407, 878 S.W.2d 405 (1994) (trial counsel failed to object to the jury's sentence of life when the verdict form had provided 80 years as the maximum).

Affirmed a life sentence for possession with intent to deliver of 40 pounds of marijuana, in excess of 112 grams of cocaine, LSD, drug paraphernalia, and for possession by a felon of a firearm. Hendrickson v. State, 316 Ark. 182, 871 S.W.2d 362 (1994).

Affirmed a sentence of 32 years for possession of 4 bags of marijuana with intent to deliver and drug paraphernalia where the defendant was a habitual offender with 7 prior convictions. Hudson v. State, 316 Ark. 360, 872 S.W.2d 68 (1994) (Page 415).

Affirmed a sentence of 19 years for 4 offenses which included continuing criminal enterprise, public servant bribery, delivery of cocaine, and use of a communication facility to further a drug felony. Leavy v. State, 314 Ark. 231, 862 S.W.2d 832 (1993).

Affirmed 10 years in prison and fines for 4 counts of delivery of marijuana, mushrooms with a controlled substance, and 1/8 ounce of an ounce of cocaine. Baker v. State, 310 Ark. 485, 837 S.W.2d 471 (1992).

Affirmed a life sentence for sale of 35 capsules of cocaine and possession of a firearm where the defendant was a habitual offender. Gomez v. State, 305 Ark. 496, 809 S.W.2d 809 (1991).

Affirmed a sentence of 35 years for sale of 1 rock of crack cocaine where defendant had one prior conviction and was charged as a habitual offender. Parker v. State, 302 Ark. 509, 790 S.W.2d 894 (1990).

Affirmed a conviction of 60 years for each of 2 counts of delivery of a controlled substance where defendant was a habitual offender. Williams v. State, 292 Ark. 616, 732 S.W.2d 135 (1987).

Affirmed a life sentence for delivery of a "sack" of cocaine sold for $10,000. Hoback v. State, 286 Ark. 153, S.W.2d 569 (1985).

These cases highlight the uniqueness and the disproportionality of the sentence meted out in this case. There are two final points that need to be made. A case calling for a consideration of proportionality would be extremely rare. But our case law has contemplated such a review, to the extent of determining whether the sentence is wholly disproportionate to the crime charged, at least since 1941, and has reiterated the principle multiple times since then. (Citations omitted.)

In addition, the General Assembly in its sentencing guidelines for guilty pleas and bench trials has recognized the need for proportionality in sentencing. Act 532 of 1993 seeks to ensure that the "sanctions imposed following conviction are PROPORTIONAL TO THE SERIOUSNESS OF THE OFFENSE of conviction and the extent of the offender's criminal history." Ark. Code Ann. 16-90-801(b)(1) (Supp 1993). In short, both this court and the GENERAL ASSEMBLY have endorsed proportionality review of the offense vis-a-vis the punishment in limited circumstances.

NEWBERN and ROAF, JJ., join.

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