Parnell R. May v. State of Arkansas , 2022 Ark. 216 ( 2022 )

Cite as 2022 Ark. 216SUPREME COURT OF ARKANSAS
No. CR-22-221
Opinion Delivered: December 8, 2022
PARNELL R. MAY APPEAL FROM THE PULASKI
APPELLANT COUNTY CIRCUIT COURT
[NO. 60CR-17-69]
V.
HONORABLE LEON JOHNSON,
JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED.
JOHN DAN KEMP, Chief Justice
Appellant Parnell May appeals pro se from a Pulaski County Circuit Court order
convicting him of capital murder and sentencing him to life imprisonment. He presents
seven points for reversal, including the following: (1) substantial evidence does not support
his capital-murder conviction; (2) the circuit court abused its discretion by excluding the
victim’s emergency-room medical records and a death certificate; and (3) the deputy chief
medical examiner provided invalid forensic testimonial evidence. We affirm.
I. Facts
May proceeded pro se at his three-day jury trial for the capital murder of his girlfriend
Anna Morales. At trial, James Woodell testified that on December 3, 2016, he was living in
a duplex next door to May and Morales. That day, Morales knocked on his door and asked
Woodell if he would come next door and help May fix his radio. Woodell agreed, followed
her next door, and fixed the radio. May and Morales began arguing, and Woodell heard
May threaten her, saying “I’ll beat you to death[,]” and “I’ll put you six foot down[.]” May
then apologized to Morales and Woodell. Later that night, Woodell was getting ready for
bed about 11:00 and heard music blaring. He knocked on May’s door, which was cracked
open, and saw May in the kitchen taking pictures with his cell phone. Woodell also saw
Morales lying on the floor. She was moving a little bit and appeared to be mumbling, so
Woodell thought she was drunk. When May finally came to the door, Woodell asked him
to turn down the radio, and May did so.
Around 7:00 the next morning, as Woodell left for work, he saw Morales lying
outside on the porch step. He thought she might have been drunk and fallen asleep, so he
nudged her with his foot, but she did not respond. She looked pale, had bruising on her
face, and he could not tell if she was breathing. He called 911. Woodell also recalled that
he did not see May that morning. Woodell entered May’s duplex around noon that day to
leave food and water for the cats. He went back that evening and noticed a pair of boots by
the door that had not been there at lunch. He left and called the police. They arrived several
minutes later and found May hiding in a bedroom between two mattresses.
Jeff Allison, a detective with the Pulaski County Sheriff’s Office, testified that he
obtained a search warrant and, during his search of the duplex, found a black metal pipe and
a wooden walking stick with blood on them. The blood on the metal pipe and wooden
stick was later identified as belonging to Morales.
Dr. Stephen Erickson, the Deputy Chief Medical Examiner for the State of Arkansas,
testified that he performed an autopsy on Morales. He determined that her cause of death
was multiple blunt-force injuries inflicted by another individual. Dr. Erickson testified that
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she “was subjected to a serious, prolonged, multi factorial assault[.]” When describing the
injuries to her head, Dr. Erickson remarked that “this would’ve taken time and effort to
strike her head this many times to cause these injuries.” He noted facial injuries that included
a split eyelid, a lacerated ear, a missing tooth, and a torn lip. He also described her many
internal injuries, including multiple rib fractures and a lacerated liver. He remarked that the
“description of the stick and the pipe both fit with those kind of wounds” sustained by
Morales. In Dr. Erickson’s opinion, Morales suffered all of the blunt-force injuries, including
fourteen fractured ribs and a lacerated liver, while she was alive. He saw no postmortem
injuries. His testimony was unequivocal that Morales “was beaten to death.” Dr. Erickson
reviewed the records of EMT responders, who noted “extensive trauma” and that Morales
had no vital signs and was cold to the touch when they arrived. They attempted to revive
her, but nothing they did had any physiological response. Dr. Erickson opined that, “in all
likelihood, she was dead at the scene.” Dr. Erickson reviewed the hospital records from
when Morales arrived at Baptist Health North Little Rock, and those records indicated that
she had no vital signs when she arrived at the hospital.
After the State rested its case, May re-called several of the State’s witnesses. He also
called Nicholas Donahue, a death investigator for the Pulaski County Coroner’s Office,
who testified that CPR very rarely causes rib fractures. Additionally, May called Dr. Charles
Kokes, who was the Chief Medical Examiner for the State of Arkansas in 2016. Dr. Kokes
had reviewed the autopsy report on Morales and agreed with Dr. Erickson that her cause of
death was multiple blunt-force injuries. Dr. Kokes also testified that although resuscitation
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complications can include rib fractures or bruising to internal organs, that is “very
uncommon to rare.”
May testified on his own behalf and admitted that he and Morales began fighting the
afternoon of December 3 because she thought he was watching pornography. May admitted
that he had been drinking, hit her, and “in this situation, it was too extreme[.]” He
acknowledged that he had beat her “over and over” with the stick but claimed that “that
iron pipe never touched her.” He admitted beating her for ten minutes and acknowledged
causing all of her injuries that were depicted in the medical examiner’s photographs except
for her tooth being knocked out. He described the injuries he had inflicted as “vicious” and
“violent.” He nonetheless claimed that he was not guilty of causing her death. He asserted
that Morales died from a combination of the cold weather and resuscitation efforts by first
responders.
The jury convicted May of capital murder and sentenced him to life imprisonment.
He filed a timely notice of appeal, and this appeal followed.
II. Points on Appeal
A. Sufficiency of the Evidence
In points one, two, three, and six on appeal, May challenges the sufficiency of the
evidence supporting his conviction. In point one, he asserts that only an “obscure or merely
probable connection” existed between the assault and Morales’s death, and that the cause-
of-death determination by the medical examiner was flawed. In point two, May contends
that substantial evidence does not support his conviction because the State failed to exclude
other reasonable hypotheses consistent with his innocence. In point three, May contends that
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the State presented insufficient evidence that blunt-force injuries caused Morales’s death. In
point six, May asserts that the evidence presented at trial does not demonstrate his guilt
beyond a reasonable doubt. Because these arguments concern May’s theory that, although
he admitted having beaten Morales, those injuries sustained as a result of the beating did not
cause her death, we will discuss them in tandem.
On appeal, we treat a motion for directed verdict as a challenge to the sufficiency of
the evidence. McClendon v. State, 2019 Ark. 88, at 3, 570 S.W.3d 450, 452. In reviewing this
challenge, we view the evidence in a light most favorable to the State and consider only the
evidence that supports the verdict. Id., 570 S.W.3d at 452. We will affirm the verdict if
substantial evidence supports it. Id., 570 S.W.3d at 452. Substantial evidence is evidence of
sufficient force and character that it will, with reasonable certainty, compel a conclusion one
way or the other without resorting to speculation or conjecture. Id., 570 S.W.3d at 452. This
court does not weigh the evidence presented at trial or assess the credibility of the witnesses,
as those are matters for the fact-finder. Halliburton v. State, 2020 Ark. 101, at 10, 594 S.W.3d
856, 863. The trier of fact is free to believe all or part of any witness’s testimony and may
resolve questions of conflicting testimony and inconsistent evidence. Id., 594 S.W.3d at 863.
With these standards in mind, we turn to May’s arguments challenging the sufficiency
of the evidence supporting his capital-murder conviction. May committed capital murder if,
with the premeditated and deliberated purpose of causing the death of another person, he
caused the death of any person. See Ark. Code Ann. § 5-10-101(a)(4) (Repl. 2013). Again,
his sufficiency challenges center on his contention that, although he admittedly beat Morales
on December 3, the State failed to present substantial evidence that his conduct caused her
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death. Instead, he claims that her death was caused by the resuscitation efforts of first
responders or by the cold weather that she endured prior to being found unresponsive on
the porch of his duplex the morning of December 4.
Here, Dr. Erickson testified that Morales’s cause of death was multiple blunt-force
injuries inflicted by another individual. When pressed by May on cross-examination about
his theory on causation, Dr. Erickson remained firm that Morales “was beaten to death.” He
further opined that Morales suffered all of the blunt-force injuries while she was alive, as he
saw no postmortem injuries. Additionally, the first responders that transported Morales to
the hospital noted that although they attempted to revive her, nothing they did had any
physiological response. They further noted that she had “extensive trauma,” no vital signs,
and was cold to the touch when they arrived.
Ultimately, May’s arguments challenge the credibility of the witnesses at trial. The
jury believed Dr. Erickson’s testimony that Morales was beaten to death over May’s version
of events. This determination was strictly within the province of the jury. Halliburton, 2020
Ark. 101, at 10, 594 S.W.3d at 863. We hold that substantial evidence supports May’s capital-
murder conviction, and we affirm on his points challenging the sufficiency of the evidence.
B. Exclusion of Evidence
In his fourth and fifth points on appeal, May argues that the circuit court abused its
discretion in the guilt phase of trial by excluding Morales’s emergency-room medical records
and a death certificate. He sought to introduce these items during his cross-examination of
Dr. Erickson.
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Circuit courts have broad discretion in deciding evidentiary issues, and we will not
reverse a circuit court’s ruling on the admission of evidence absent an abuse of discretion.
Collins v. State, 2019 Ark. 110, at 5, 571 S.W.3d 469, 471–72. Abuse of discretion is a high
threshold that does not simply require error in the circuit court’s decision, but requires that
the circuit court act improvidently, thoughtlessly, or without due consideration. Id., 571
S.W.3d at 472. Furthermore, we will not reverse unless the appellant demonstrates that he
was prejudiced by the evidentiary ruling. Id., 571 S.W.3d at 472.
1. Medical records
During his cross-examination of Dr. Erickson, May attempted to introduce thirty-
four pages of Morales’s emergency-room medical records pursuant to Arkansas Rule of
Evidence 803(6). The State objected because May did not present a records custodian to
testify about the contents of the records. The circuit court agreed and ruled that, to have
these medical records admitted as business records, May needed to “ask for a custodian to
come in and testify about what these are.” The circuit court excluded the records, but
allowed May to cross-examine Dr. Erickson about the information contained in them.
Rule 803(6) provides that
[a] memorandum, report, record, or data compilation, in any form, of acts, events,
conditions, opinions, or diagnoses, made at or near the time by, or from information
transmitted by, a person with knowledge, if kept in the course of a regularly
conducted business activity, and if it was the regular practice of that business activity
to make the memorandum, report, record, or data compilation, all as shown by the
testimony of the custodian or other qualified witness, unless the source of information
or the method or circumstances of preparation indicate lack of trustworthiness. The
term “business” as used in this paragraph includes business, institution, association,
profession, occupation, and calling of every kind, whether or not conducted for
profit.
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We have stated that although a medical record might be admissible as a business record, and
thus an exception to the hearsay rule under Rule 803(6), a foundation must be laid for the
admission of such a document, and the elements of the foundation must be shown by
testimony of the custodian or another qualified witness. Branscomb v. State, 299 Ark. 482,
489, 774 S.W.2d 426, 429 (1989). Here, May sought to introduce the emergency-room
medical records, not through the testimony of a records custodian, but while cross-
examining the chief deputy medical examiner. Therefore, May did not satisfy the foundation
requirement in Rule 803(6). We hold that the circuit court did not abuse its discretion by
excluding the records in these circumstances, and we affirm.1
2. Death certificate
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Although May cited Rule 803(6) at trial, he repeatedly asserted that the records were
admissible because he had obtained an affidavit from the medical-records custodian. Under
Arkansas Code Annotated section 16-46-108(a)(1) (Repl. 1999),
Any record or set of records or photographically reproduced copies of such
records which would be admissible under Rule 803(6) or (7) of the Arkansas Rules
of Evidence shall be admissible in evidence in any court in this state upon the affidavit
of the person who would otherwise provide the prerequisites of Rule 803(6) or (7)
that such records attached to such affidavit were in fact so kept as required by Rule
803(6) or (7), provided, further, that such record or records, along with such affidavit, are filed
with the clerk of the court for inclusion with the papers in the cause in which the record or records
are sought to be used as evidence at least fourteen (14) days prior to the day upon which the
trial of said cause commences, and provided the other parties to said cause are given
prompt notice by the party filing same of the filing of such record or records and
affidavit, which notice shall identify the name and employer, if any, of the person
making the affidavit, and such records shall be made available to the counsel for other
parties to the action or litigation for inspection and copying.
(Emphasis added.) The record on appeal in this case includes a notice and “Affidavit of
Custodian of Medical Records” filed by May at least fourteen days prior to the start of trial,
but the medical records at issue were not attached to the notice and affidavit. To the extent
that May was attempting to introduce the records without the testimony of a custodian
pursuant to section 16-46-108, he failed to meet the requirements of that statute.
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May next argues that the circuit court abused its discretion in excluding a death
certificate that he sought to admit while cross-examining Dr. Erickson. The State objected
to its admission because Dr. Erickson did not generate the form. May responded that the
document was admissible pursuant to Arkansas Code Annotated section 12-12-313 (Supp.
2021) because it was “competent evidence that . . . was written by [Dr. Erickson].” The
circuit court disagreed and excluded it.
Arkansas Code Annotated section 12-12-313 states, in pertinent part, that
(a) The records and reports of autopsies, evidence analyses, drug analyses, and any
investigations made by the State Crime Laboratory under the authority of this
subchapter shall be received as competent evidence as to the matters contained
therein in the courts of this state subject to the applicable rules of criminal procedure
or civil procedure when duly attested to by the Director of the State Crime
Laboratory or his or her assistants, associates, or deputies.
...
(d)(1) All records and reports of an evidence analysis of the laboratory shall be
received as competent evidence as to the facts in any court or other proceeding when
duly attested to by the analyst who performed the analysis.
Here, although the circuit court refused to admit the document, it nonetheless
allowed May to question Dr. Erickson about it. Dr. Erickson explained that the document
May sought to introduce was not an official copy of Morales’s death certificate. He would
have to obtain that from the health department. Additionally, although Dr. Erickson had
filled out the immediate cause of death on the certificate as “Multiple Blunt Force Injuries,”
he explained that he did not “fill out all those details. That’s up to the funeral home and the
state health department.” Given that the document was not generated by Dr. Erickson and
was not an official copy of Morales’s death certificate, we hold that the circuit court did not
abuse its discretion in refusing to admit the document, and we affirm.
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C. Dr. Erickson’s Testimony
In his seventh point on appeal, May argues that Dr. Erickson’s testimony constituted
“invalid forensic testimonial evidence” and resulted in May’s wrongful conviction. It is well
established that a contemporaneous objection is required to preserve an issue for appeal. See
Friday v. State, 2018 Ark. 339, at 9, 561 S.W.3d 318, 324. May failed to contemporaneously
object at trial to Dr. Erickson’s testimony as being invalid or fraudulent. Thus, we hold that
May’s argument is unpreserved for appeal.
To the extent that May’s argument amounts to a sufficiency-of-the-evidence
challenge attacking Dr. Erickson’s credibility as a witness, as stated above, that credibility
determination was for the jury to make, not this court on appeal. See, e.g., Halliburton, 2020
Ark. 101, at 10, 594 S.W.3d at 863. Accordingly, we affirm on this point.
III. Rule 4-3(a)
Because May received a life sentence, this court, in compliance with Arkansas
Supreme Court Rule 4-3(a), has examined the record for all objections, motions, and
requests made by either party that were decided adversely to May. No prejudicial error has
been found.
Affirmed.
Parnell R. May, pro se appellant.
Leslie Rutledge, Att’y Gen., by: Pamela Rumpz, Sr. Ass’t Att’y Gen., for appellee.
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