Nichols v. State , 465 S.W.3d 846 ( 2015 )

Cite as 2015 Ark. 274
SUPREME COURT OF ARKANSAS
No. CR-14-1132
MATTHEW W. NICHOLS Opinion Delivered June 18, 2015
APPELLANT APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT
V. [NO. CR13-2206]
STATE OF ARKANSAS HONORABLE WENDELL GRIFFEN,
JUDGE
APPELLEE
AFFIRMED.
JOSEPHINE LINKER HART, Associate Justice
A Pulaski County jury convicted Matthew W. Nichols of capital murder in the death
of Jesse McFadden. The State waived the death penalty and Nichols was sentenced as a
habitual offender by the court to life without parole to be served in the Arkansas Department
of Correction. His sole argument on appeal is that the circuit court abused its discretion by
refusing to give his proffered, nonmodel jury instruction concerning the transition from
capital murder to first-degree murder if a juror has reasonable doubt of guilt on the greater
charge. Our jurisdiction is pursuant to Arkansas Supreme Court Rule 1-2(a)(2) (2013). We
affirm.
At the trial on August 25, 2014, North Little Rock police officer Jeffrey Elenbaas
testified that on May 20, 2013, he was dispatched to 219 Waters Street in North Little Rock.
He believed he was responding to a residential fire, to assist the firefighters. However, while
he was waiting for the fire department, he was waved toward the driveway of the residence
by a man whom he would subsequently learn was Nichols. There he found a nude woman
Cite as 2015 Ark. 274
who had been severely burned, “basically lying in a heap in the driveway.” According to
Elenbaas, “her skin was completely burned off,” but she was still alive.
Elenbaas further testified that Nichols approached him asking for permission to sit in
the back seat of the patrol car because there had been what Nichols described as a “family
disturbance.” He allowed Nichols to sit in the car, with the door open. According to
Elenbaas, there was nothing “real striking” about Nichols, but he did detect the smell of
gasoline. While Elenbaas was attending to the victim, Nichols left the police car and started
walking down an adjacent street. Meanwhile, bystanders approached Elenbaas and disclosed
Nichols’s involvement with the burned woman. He went after Nichols and took him into
custody.
Franklin Hinton, a 15-year acquaintance of the victim, testified that Nichols and
McFadden lived together at the Waters Street house. On the day of the murder, he had
driven Nichols to an auto-salvage yard, returned with him to the residence, and was drinking
a beer while watching Nichols install a brake caliper on his truck. According to Hinton,
Nichols had been drinking also but was not intoxicated. Nichols tried to talk to him about
his relationship with McFadden, telling him that he thought that McFadden was cheating
on him. Hinton claimed that he fended off the discussion, telling Nichols that it was not his
business.
Eventually, McFadden arrived. Hinton described her demeanor as “happy going.”
Nichols told him to wait for him while he went into the house to talk to “my lady.” An
argument ensued between McFadden and Nichols. Nichols took her telephone, and Hinton
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tried unsuccessfully to retrieve it for her when Nichols came outside. Nichols went back
into the house, and Hinton decided to leave.
As he walked back to his vehicle, he heard McFadden screaming. He returned to the
house because he thought Nichols was beating McFadden. He discovered that the screen
door was locked. Unable to see what was going on, he looked into the house from a
window. According to Hinton, he saw Nichols dumping gasoline onto McFadden, and “all
of a sudden, the whole living room lit up.” He yelled at Nichols, but got no response. He
saw Nichols steadily pouring gasoline onto McFadden. Hinton stated that he could not
understand why the burning gasoline was not flashing back into the gas can. When
McFadden fell against the window where he was watching, he recoiled in horror and fell off
the porch. He ran from the scene and went straight home. Hinton stated that he did not
call the police until the next day.
North Little Rock Detective John Alston testified that he photographed the 219
Waters Street home after McFadden had died of her injuries. He showed the jury a diagram,
noting that a five-gallon gas can was found just inside the front door. He described the gas
can as red, with the top black and charred. He stated that there were also burn marks on the
floor near the front door. Detective Alston then showed pictures of the bathroom, where
the toilet seat, shower curtain, and areas of the wall were charred.
North Little Rock Detective Joseph Green testified that he encountered Nichols at
the Waters Street house, while Nichols was seated in Officer Elenbaas’s patrol car. He noted
a faint odor of gasoline. Detective Green recalled that Nichols’s nostrils appeared to be
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blistered and peeling.
Terry Yancy testified that she was Nichols’s niece and McFadden’s best friend. She
stated that a few weeks before the incident, Nichols told her that he would “burn her up in
that house” if McFadden “put him out.” According to Yancy, she called McFadden and
informed her about what Nichols had said. Yancy also recounted a phone call that she
received from McFadden on May 20, 2013, the date of the incident, asking her to bring her
some locks because she intended to change the locks at her residence. During that call, she
heard Nichols’s voice in the background. Yancy claimed that Nichols repeated the threat
that if McFadden put him out, “he would burn her up in that motherf---ing house.” She
perceived that the conversation was interrupted by Nichols snatching the phone from
McFadden. Yancy stated that she “sped through town about 80 miles an hour, trying to get
to the house.” When she arrived, she found yellow crime-scene tape, blood on the
sidewalk, and burn marks up to the house. She went to the hospital and saw McFadden.
She recalled that McFadden’s skin was “just burned and melted, and she had spots of hair and
just skin.” Her whole body was “swollen and just melted together,” and she was on “some
kind of machine” that kept her alive just “long enough for us to see her or say goodbye.”
Angela Yielding, a neighbor who lived two houses away from McFadden’s residence,
testified that she was asked by another neighbor to call an ambulance because McFadden’s
house was on fire. She called the fire department. She claimed that she saw Nichols take
a gas can out of a vehicle and go into the house. Yielding “hollered at him” that his house
was on fire. She then left. When she returned, she claimed that she saw Nichols pouring
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gasoline “on top of some figure.” She further testified that she heard a noise that sounded
like a “squelch or a scream” and saw flames. The figure was just lying on the ground in the
fetal position. Yielding stated that she “saw the lady starting to roll off the porch and roll,
roll, roll, roll and then until she stopped . . . at the edge of the driveway.” At that point, the
person was no longer on fire. She observed Nichols walking around “like he had his chest
puffed out.” Yielding stated that she told police that Nichols was the person they were
looking for. She observed Nichols walking away and did not want him to escape.
The State concluded its case with Dr. Adam Craig, an associate medical examiner
with the Arkansas State Crime Laboratory. Craig testified he was not board certified in
forensic pathology; nonetheless, he was qualified by the circuit court as an expert. Craig also
admitted that he did not perform the autopsy on McFadden, but asserted that he did review
the report that was authored by Dr. Dye, the pathologist who had performed the autopsy.
Craig stated that the cause of death was determined to be “thermal injuries and smoke and
soot inhalation.” He reported that Dr. Dye estimated that McFadden sustained burns on
90 percent of her body. Through Craig, the State introduced several gruesome postmortem
photographs of McFadden.
Nichols testified in his own defense. He claimed that he had consumed half a pint
of gin on the day of the incident. He stated that when he saw McFadden come home from
what was supposed to have been an appointment in Drug Court, he became upset because
she was dressed inappropriately, wearing what McFadden referred to as her “hoochie mama
clothes.” An argument ensued, fueled by his accusations of her infidelity and her threats to
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call the police to take him to jail for a sentence that was pending against him for driving on
a suspended license. He admitted that they fought over her phone and that he snatched the
phone away from her. She called to Frank Hinton to help her, and although Hinton walked
to the front of the house, he did not assist her. According to Nichols, McFadden told him
that he meant nothing to her and that he was just a “trick.” She taunted him, claiming that
she had been with another man that day.
Nichols stated that he put McFadden’s phone on top of the refrigerator and walked
out of the house. He saw the gas can in his truck, picked it up, and went back into the
house. McFadden saw that he was carrying a gas can, but the first words out of her mouth
were, “Where’s my goddamn phone at.” According to Nichols, he “tripped” McFadden
and doused her with gasoline. He then struck his lighter and “the flame went up.” He saw
Terry Brunch a few feet from his front door. Brunch shouted to McFadden, “roll NaNa
roll.” Nichols claimed that he did not plan to burn McFadden before he became upset.
However, when McFadden was putting out the fire, he poured more gasoline on her. But
as she rolled back toward him, the flame “said woof” and flared up. It burned his face and
hands and reignited McFadden. He threw the gas can at the front door. McFadden went
into the bathroom, and he heard the shower come on. He started choking on the smoke
inside the house and went outside. He started walking down the street and saw a police car
approaching. He admitted that he told the officer that he needed to get into the car, and he
climbed into the back seat. Nichols stated that he saw McFadden come out of the front of
the house, cross the front of the yard, and lie down in the driveway.
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Nichols stated that he did not intend to kill McFadden. He just wanted to “hurt her
real bad.” He explained that he poured additional gas on McFadden because initially he
“hadn’t hurt her in a way to make her unattractive, you know, for sexual purposes.” He
stated that he did not hesitate to pour more gas on McFadden because he realized he was
“still going to go to jail” after the first dousing.
On appeal, Nichols argues that the circuit court abused its discretion by refusing to
give his proffered, nonmodel jury instruction concerning when a juror, who has reasonable
doubt about a defendant’s guilt on capital murder, may transition to the lesser-included
offense of first-degree murder. This argument concerns Nichols’s request at trial to have the
circuit court use his proffered amended version of AMI Crim. 2d 302. AMI Crim. 2d 302
is the transition instruction, which sets forth the conditions whereby a jury may consider
lesser-included offenses. Nichols requested that the circuit court use the following
instruction:
If you as an individual have a reasonable doubt of the defendant’s guilt on the charge
of Capital Murder, you will then consider the charge of Murder in the First Degree.
Instead, the circuit court gave the following standard AMI Crim. 2d 302 instruction:
If you have a reasonable doubt of the defendant’s guilt on the charge of Capital
Murder, you will then consider the charge of Murder in the First Degree.
Nichols argues that his proffered version compensates for the ambiguity in the word “you.”
He contends that “you,” in this context, could mean either an individual juror, or the jury
as a whole, which could have precluded an individual juror from considering the lesser-
included offense of first-degree murder.
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Nonmodel jury instructions should be given only when the circuit judge finds that
the model instruction does not state the law or does not contain a needed instruction on a
subject. Henderson v. State, 284 Ark. 493, 684 S.W.2d 231 (1985). When reviewing
whether a jury instruction is ambiguous, this court never considers it in artificial isolation;
it must be judged in the context of the instructions as a whole. Estelle v. McGuire, 502 U.S.
62 (1991). We hold that AMI Crim. 2d 302 is a correct statement of the law and is not
ambiguous. We note that with regard to reasonable doubt, the jury was instructed, in
pertinent part, as follows: “A juror is satisfied beyond a reasonable doubt if, after an impartial
consideration of all the evidence, he or she has an abiding conviction of the truth of the
charge.” Furthermore, when the jury was polled after the verdict was rendered, each juror
individually affirmed that it was his or her verdict. Thus, the circuit court did not abuse its
discretion in refusing to give Nichols’s proffered modification.
Pursuant to Arkansas Supreme Court Rule 4-3(i) (2013), the record has been
reviewed for all objections, motions, and requests that were decided adversely to Nichols and
no prejudicial error has been found.
Affirmed.
Bret Qualls and Lott Rolfe IV, Deputy Public Defenders, by: Clint Miller, Deputy
Public Defender, for appellant.
Leslie Rutledge, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
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