Rhatez Furlow v. State of Arkansas , 2023 Ark. App. 192 ( 2023 )

Cite as 2023 Ark. App. 192ARKANSAS COURT OF APPEALS
DIVISION II
No. CR-22-364
RHATEZ FURLOW Opinion Delivered April 5, 2023
APPELLANT
APPEAL FROM THE CRAIGHEAD
COUNTY CIRCUIT COURT,
V. WESTERN DISTRICT
[NO. 16JCR-19-929]
STATE OF ARKANSAS
APPELLEE HONORABLE RANDY F. PHILHOURS,
JUDGE
AFFIRMED
STEPHANIE POTTER BARRETT, Judge
Rhatez Furlow appeals from the Craighead County Circuit Court conviction of two
counts of second-degree murder, a Class Y felony; and two counts of commission of a felony
with a firearm, a Class B felony, to which he was sentenced by a jury to 150 years’
imprisonment. On appeal, he raises five arguments for reversal: (1) the circuit court abused
its discretion by allowing irrelevant evidence referring to Furlow by his nickname, Gotti,
three times; (2) the circuit court abused its discretion by allowing hearsay attributed to the
victim, Kafena Russell; (3) the circuit court abused its discretion by refusing to give
instructions on self-defense and extreme-emotional-disturbance manslaughter; (4) the circuit
court allowed improper arguments by the prosecutor; and (5) the circuit court erred by
refusing to apply Furlow’s 868 days of jail credit toward his sentence in this case. We find
no error and affirm.
The appellant, Rhatez D. Furlow, shot and killed his girlfriend, Kafena Russell, and
her brother, Johnny Ray Russell, in Kafena’s apartment on the night of July 17, 2019. Kafena
“put him out” of her apartment where he co-habitated with her up until July 17 upon the
belief that Furlow was cheating on her after she had returned unexpectedly from a trip to
Missouri and found him with another woman in their apartment.
On July 18, 2019, the victims were found by an unidentified woman believed to be
Kafena’s relative. A neighbor, Mike Smith, heard the woman scream and went to investigate
and found the two bodies. Police interviewed Mike Smith, who advised them Kafena had
told him that she had kicked Furlow out of the apartment and said it was “over” just hours
prior to her murder that night. At trial, Smith testified he had also noticed Furlow on a hill
near the apartment watching Kafena and him that afternoon while they were talking.
Officers sought and located Furlow at the police station in Marked Tree on July 18
where he was being held in relation to an unrelated stabbing that occurred earlier that day.
When questioned by officers, Furlow admitted he had been at Kafena’s home the previous
night but denied killing the victims or knowing who might have killed them. He said he left
the apartment about 11:30 p.m. He said he called the mother of his child, Wendy White,
to pick him up near the murder scene. He stated he walked around for about an hour before
she picked him up. When he got into the car, he appeared angry and disheveled and stated
to her he had been “jumped.” They went back to Wendy’s home where later the stabbing
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incident occurred that led to his detention at the Marked Tree police station when officers
questioned him.
After his arrest, Furlow gave two additional statements to the officers and eventually
confessed to the murders. In those statements, he advised officers that he had called Kafena
that night, but she would not answer her phone, so he called Johnny Ray to get him to let
Furlow into the apartment to get his clothes. He explained to officers that he and Kafena
were living together and that she had locked him out of the apartment. Furlow also stated
that Johnny Ray did not recognize his voice when he called because he had laryngitis and
was hoarse so he had to identify himself as Gotti, his nickname, so he would let him into
the apartment. When Furlow arrived at the apartment, he had a bag with him that had his
pistol in it. He said he sold marijuana and needed it for protection, so he carried it with him
all the time.
Furlow said that Kafena and Johnny Ray were nagging him as soon as he entered the
apartment about cheating and the woman who was with him in the apartment. Furlow stated
he had gone upstairs at one point because he wanted to change his shirt and that they
followed him upstairs, nagging him, and he tried to slam the bedroom door in their faces.
He later came downstairs after changing his shirt. When he came back downstairs, they
continued to argue, and he admitted to officers that he had gotten “mad, mad, mad” at their
continued verbal assault. During the argument, Furlow said Kafena was standing at the
loveseat in the living room, and Johnny Ray was walking around in the kitchen apparently
rolling a dollar bill to snort cocaine. Furlow stated he was standing by the television that was
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next to the front door while the argument continued. According to his statement and the
crime-scene photographs, the television was next to the front door where he said he was
standing, and the victims were across the room further into the apartment. Crime-scene
photos show that Kafena was found lying on the kitchen side of the loveseat near the kitchen
table, and Johnny Ray was lying behind the kitchen table against the kitchen counter. A
diagram of the apartment and the crime-scene photos introduced into evidence without
objection showed that neither victim was close to the front door of the apartment. Near the
bodies were two wooden sticks. A knife was found outside in the bushes but could not be
tied to either Kafena or Johnny Ray. Furlow told officers that there was no physical contact
between the parties, and no weapons were used or threatened to be used by the victims, only
verbal arguments. Furlow told officers that after the victims were killed he left the apartment
and went to an area near an abandoned building where he threw the gun and magazine away
in an overgrown area. Officers never recovered the weapon, although a search was
conducted. Furlow admitted that his pistol was a 9mm. The State introduced evidence that
the bullets recovered from the bodies of the victims were 9mm. The medical examiner
testified that each victim had been shot five times.
I. Arkansas Rules of Evididence 404(b) and 403
Furlow argues for his first point on appeal that the circuit court abused its discretion
by allowing into evidence his statement to police that his nickname is “Gotti,” in violation
of Arkansas Rules of Evidence 404(b) and 403 (2021). Specifically, he argues that the name
Gotti associated him with the prior bad acts of mafia boss John Gotti and that admission of
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the nickname was more prejudicial than probative. Furlow argues that his character was
brought into issue on the basis of his chosen nickname without any evidence that it was
prejudicial. In effect, the bad acts of another person would be a reflection on his character
and therefore prejudicial.
In his statements to officers, Furlow volunteered that his nickname is Gotti and told
officers that he used his nickname “Gotti” when he called Johnny Ray so that Johnny Ray
would recognize him and open the door and let him into the apartment.
The admission of evidence under Rules 404(b) and 403 is committed to the sound
discretion of the circuit court, and the appellate court will not reverse absent a showing of
manifest abuse of discretion. E.g., Atwood v. State, 2020 Ark. 283, at 17. 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. Arkansas Rule of Evidence 401 (2021) defines relevant evidence as evidence having any
tendency to make the existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without the evidence. Under
Rule 404(b), evidence of other crimes, wrongs, or acts is not admissible to prove the character
of a person in order to show that he acted in conformity therewith. However, “any
circumstance that ties a defendant to the crime” is independently relevant and admissible as
evidence. Jackson v. State, 359 Ark. 297, 305, 197 S.W.3d 468, 474 (2004). Furlow’s phone
call placed him at Kafena’s apartment, which established him as a suspect; thus, it was
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relevant and admissible even if his nickname was used in the call. The fact that he used his
nickname in the call was instrumental in his being allowed into the apartment that night.
Here, the nickname “Gotti” was not offered as evidence of other crimes, wrongs, or
acts committed by Furlow, nor was it offered to prove his character, regardless of Furlow’s
speculation that the nickname associated him with mafia boss John Gotti and gang activity
decades ago. There was never any mention of John Gotti to the jury nor was there any
evidence presented that Furlow was involved in gang activity. When Furlow told the
detectives in the interview that his nickname is “Gotti,” they did not make any comment or
seem to make the connection to John Gotti. The court is not required to speculate as to how
a jury would relate Furlow’s nickname to a person who was a gangster many years ago in New
York City. In compliance with the circuit court’s ruling, the State made no negative
argument, examination, or inferences about the nickname. Prejudice is not presumed, and
this court will not reverse a conviction absent a showing of prejudice. The circuit court did
not abuse its discretion by admitting Furlow’s statement that contained the nickname
“Gotti” over Furlow’s Rule 404(b) objection.
The circuit court likewise did not abuse its discretion by overruling Furlow’s Rule 403
objection. Under Rule 403, relevant evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice. However, “any circumstance that
ties a defendant to the crime” is independently relevant and admissible as evidence. Jackson,
359 Ark. at 305, 197 S.W.3d at 474. Furlow’s recounting of his phone call to Johnny Ray in
which he identified himself by his nickname “Gotti” was probative of how he came into
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contact with the victims the night of the murder and, thus, was relevant and admissible
evidence and not unfairly prejudicial. Furlow has failed to demonstrate that the circuit court
acted improvidently, thoughtlessly, or without due consideration in its rulings on the issue.
Furlow has shown no prejudice. The court did not abuse its discretion by allowing
the use of Furlow’s nickname into evidence. The probative value of the use of his nickname
substantially outweighed any danger of possible or unfair prejudice.
II. Hearsay Testimony
Furlow’s second argument is that the circuit court abused its discretion by allowing
inadmissible hearsay testimony offered by Kafena’s neighbor, Michael Smith, to be
introduced into evidence. This court reviews evidentiary rulings on hearsay under an abuse-
of-discretion standard and will not reverse absent a manifest abuse of that discretion and a
showing of prejudice. E.g., Lacy v. State, 2020 Ark. App. 224, at 3–4, 599 S.W.3d 661, 664.
Hearsay is defined as “a statement, other than one made by the declarant while testifying at
trial or hearing, offered in evidence to prove the truth of the matter asserted.” Ark. R. Evid.
801(c) (2021). Hearsay evidence is generally inadmissible under Arkansas Rule of Evidence
802 unless it falls within an exception to the hearsay rule. E.g., Keister v. State, 2011 Ark.
App. 71, at 2. Rule 803(3) provides that a statement is not hearsay if it is “a statement of the
declarant’s then existing state of mind, emotion, sensation, or physical condition, such as
intent, plan, motive, design, mental feeling, pain, and bodily health, but not including a
statement of memory or belief to prove the fact remembered or believed.” The Arkansas
Supreme Court has held that evidence of the state of mind of the victim, prior to a murder,
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is admissible. Vasquez v. State, 287 Ark. 468, 473-B, 702 S.W.2d 411, 411 (1986)
(supplemental opinion on denial of rehearing). Moreover, when, as here, the declarant is
unavailable to testify due to death, a statement is not hearsay if it is “a statement concerning
the declarant’s own birth, adoption, marriage, divorce, legitimacy, relationship by blood,
adoption, marriage, ancestry, or other similar fact of personal or family history.” Ark. R.
Evid. 804(a)(4), (b)(i). Here, Smith testified that the day before Kafena was murdered, Kafena
told him “it was over” between her and appellant and that she had “put him out” because
he was cheating on her, thus ending her relationship with Furlow. This testimony was
properly admitted under Rule 803(3) as evidence of Kafena’s state of mind prior to her
murder. Moreover, the statement also was admissible under Rule 804(b)(i) because it was a
statement of Kafena’s personal history with Furlow. Although the circuit court did not
consider Rule 804(b)(i) in its ruling, Arkansas appellate courts will affirm a circuit court’s
ruling if it reached the right result, even for the wrong reason. E.g., Holly v. State, 2017 Ark.
201, at 11, 520 S.W.3d 677, 684; Gould v. State, 2014 Ark. App. 543, at 6, 444 S.W.3d 408,
412.
III. Jury Instructions
Furlow next argues that the circuit court abused its discretion by not giving an
instruction on the defense of justification or extreme-emotional-disturbance manslaughter.
A party is entitled to a jury instruction when it is a correct statement of the law and when
there is a rational basis in the evidence to support giving the instruction. Thus, an instruction
should be rejected when there is no rational basis for giving it. E.g., Hatley v. State, 2021 Ark.
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App. 134, at 11, 619 S.W.3d 77, 83. A circuit court’s decision whether to give an instruction
will not be reversed unless the court abused its discretion. E.g., id. 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.Furlow’s proffered justification instructions stated that deadly physical force was
necessary to defend Furlow because he reasonably believed that the victims were committing
or about to commit a felony with force or violence or were using or about to use unlawful
deadly physical force. Critical to the inquiry of whether one is justified in using deadly
physical force is the reasonableness of the accused’s apprehension that he was in danger of
death or of suffering great bodily harm. E.g., Brown v. State, 2020 Ark. App. 198, at 5, 595
S.W.3d 456, 460; see Ark. Code Ann. §§ 5-2-606 and -607 (Supp. 2021). The defendant’s
belief must be objectively reasonable and not arrived at via fault or carelessness. E.g., id. A
justification instruction must be given if there is any evidence to support it. Sharp v. State, 90
Ark. App. 81, 204 S.W.3d 68 (2005). Here, there was no evidence to support a finding by
the circuit court that Furlow had a reasonable, objective belief that the victims were about
to commit a felony with force or violence or that they were about to use unlawful deadly
physical force on him.
Furlow argues that when he shot the victims, “he found his exit blocked by agitated,
weapon-wielding people.” The statement that his exit was blocked by agitated, weapon-
wielding people has no basis in the physical evidence, Furlow’s statements, or witness
testimony. Furlow denied there had been any physical contact or fight between him and the
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victims. Furlow stated that the victims were only verbally arguing with him about his alleged
infidelity. The mere presence of objects that might have been used as weapons but were not
shown to be wielded, brandished, or used does not provide a basis to show there was any
evidence to give a jury instruction on justification.
Furlow told Detective Brooks that when they were arguing, he was next to the
television, Kafena was next to the loveseat, and Johnny Ray was next to the kitchen table.
The diagram of the apartment and photos of the crime scene show that, according to
Furlow’s description of where he and the victims were standing, the victims were not
blocking his exit; rather, he was between the victims and the front door of the apartment. It
is well settled that where the evidence does not support an instruction, it should be refused.
Robinson v. State, 11 Ark. App. 18, 665 S.W.2d 890 (1984). Even if an instruction contains a
correct statement of the law, it does not mean it is an error for the circuit court to refuse to
give it if there is no basis in the evidence for it. Wilson v. State, 9 Ark. App. 213, 657 S.W.2d
558 (1983). This court has uniformly held that where the evidence does not support an
instruction, it should be refused. See Sims v. State, 171 Ark. 799, 286 S.W. 981 (1926).
Furlow’s three statements and sworn testimony showed that there was not any evidence to
support the giving of the instruction. Based on these facts, there was no rational basis for
giving the proffered instruction on justification, and the court did not abuse its discretion
nor act improvidently, thoughtlessly, or without due consideration.
Furlow’s proffered extreme-emotional-disturbance-manslaughter instructions stated
that if a person commits the offense of murder but does so under the influence of extreme
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emotional disturbance for which there is a reasonable excuse, that person has committed the
offense of manslaughter rather than murder. The reasonableness of the excuse is determined
from the viewpoint of a person in the actor’s situation under the circumstances as the actor
believed them to be. Ark. Code Ann. § 5-10-104(a)(1)(B) (Repl. 2013). A jury instruction on
extreme-emotional-disturbance manslaughter requires evidence that the defendant killed the
victim following provocation such as “physical fighting, a threat, or a brandished weapon.”
Boyle v. State, 363 Ark. 356, 362, 214 S.W.3d 250, 253 (2005) (quoting Kail v. State, 341 Ark.
89, 94, 14 S.W.3d 878, 881 (2000)); e.g., Bragg v. State, 2021 Ark. App. 381, at 9. Being
angered, irritated, or annoyed by the victim does not constitute evidence of an extreme
emotional disturbance. Ark. Code Ann. § 5-10-104(a)(1)(A); e.g., Spann v. State, 328 Ark.
509, 515, 944 S.W.2d 537, 540 (1997); Frazier v. State, 309 Ark. 228, 229, 828 S.W.2d 838,
839 (1992). Furlow’s being angry at the victims is not a reasonable excuse to take a gun out
of his bag and fire twelve shots at the victims, striking each five times.
There was no rational basis in the evidence to support instructing the jury on extreme-
emotional-disturbance manslaughter. As noted in the preceding section on justification,
there was no evidence of a physical fight, threats, or a weapon being brandished before
Furlow committed the murders. Furlow argues that the instant facts are similar to the facts
and holding in Rainey v. State, 310 Ark. 419, 837 S.W.2d 453 (1992). In Rainey, the Arkansas
Supreme Court held that the circuit court abused its discretion by refusing to give an
extreme-emotional-disturbance-manslaughter instruction because the jury had been
presented with evidence that the victim threatened to kill Rainey with a pistol before he took
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it from her and shot her. Unlike this case, there was provocation by the victim, who made
threats to kill Rainey and brandished a weapon. The case was reversed and remanded because
of a failure to give the proffered instruction on extreme-emotional-disturbance manslaughter.
Here, there was no provocation by the victims shown by the evidence in this case. The
facts of this case are more similar to those in Bragg, cited by the circuit court in its ruling. See
Bragg, 2021 Ark. App. 381, at 10. In Bragg, this court held that the circuit court did not abuse
its discretion by refusing to give the requested extreme-emotional-disturbance-manslaughter
instruction because the evidence showed that Bragg and the victim had an argument about
infidelity before the murder with no evidence of physical fighting, a threat, or a brandished
weapon. Moreover, Bragg “never claimed that the victim threatened him or had a weapon
before he shot her.” Id.; see also Spann v. State, 329 Ark. 509, 944 S.W.2d 537 (1997); Johnson
v. State, 2016 Ark. 156, at 5, 489 S.W.3d 668, 671. Here, as in Bragg, the victims did not
make threats, did not brandish a weapon, nor was there a physical fight. Like Bragg, Furlow
did not make that claim in either of his three statements to officers or in his penalty-phase
testimony. See also Boyle, 363 Ark. at 362, 214 S.W.3d at 253; Douglas v. State, 2019 Ark. 57,
567 S.W.3d 483. It is reasonable to believe that had such events occurred, he would have
made them known to officers to justify his conduct.
Given the above facts and the law, the circuit court did not act improvidently,
thoughtlessly, or without due consideration when it declined to give Furlow’s proffered
instruction on extreme-emotional-disturbence manslaughter because there was no rational
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basis to support the instruction. There was simply no evidence presented that would support
the submission of this instruction to the jury.
IV. Prosecutorial Misconduct
Furlow’s fourth argument on appeal is that the circuit court erred by allowing the
prosecutor to improperly comment that defense counsel did not believe Furlow was not
guilty. A circuit court has very broad discretion in supervising and controlling the arguments
of counsel, and its ruling is not subject to reversal unless there is a manifest, gross abuse of
that discretion or the matter complained of is a statement of the attorney’s opinion made
only to arouse the passion and prejudice of the jury. E.g., Armstrong v. State, 366 Ark. 105,
119, 233 S.W.3d 627, 638 (2006). Appellate courts will not reverse the action of a circuit
court in matters pertaining to its control, supervision, and determination of the propriety of
arguments of counsel in the absence of manifest abuse of discretion. E.g., Tate v. State, 367
Ark. 576, 582, 242 S.W.3d 254, 260 (2006).
The State is limited in its argument to the evidence in the record, logical inferences
and deductions therefrom, and matters of which judicial notice can be taken. E.g., id. Closing
remarks that require reversal are rare and require an appeal to the jurors’ passions. E.g., Gill
v. State, 2010 Ark. App. 524, at 14, 376 S.W.3d 529, 537. The circuit court is in the best
position to evaluate the potential for prejudice based on the prosecutor’s remarks. E.g., id.This court will not reverse a circuit court’s rulings on the propriety of a closing argument
absent a showing of prejudice. E.g., Keister, 2011 Ark. App. 71, at 3.
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During closing arguments in the guilt phase of the trial, defense counsel, commenting
on the strength of the State’s case, argued to the jury that “we’ve been here talking about an
innocent man” after calling the prosecutor a “liar” and being “dishonest.” During the State’s
rebuttal closing argument, the prosecutor stated, “[N]ot one time during defense counsel’s
closing argument did he ever say, ‘I submit to you that the defendant is not guilty. He
couldn’t with a straight face’.” Furlow objected without asking for an admonition or mistrial,
stating it was “improper for the prosecutor to comment on what defense counsel believed.”
The court overruled the Furlow’s objection, stating he had opened the door to the remark
in his closing statement. The prosecutor was allowed to fight fire with fire. See Delatorre v.
State, 2015 Ark. App 498, 471 S.W.3d 223. The appellant must demonstrate actual
prejudice, and this court will not reverse absent a showing of that prejudice. Caldwell v. State,
295 Ark. 149, 747 S.W.2d 99 (1988).
Based on the overwhelming proof of guilt, it cannot be said that the circuit court
abused its discretion in overruling Furlow’s objection to the prosecutor’s remark. Furlow
does not show how the jury was prejudiced simply because of the prosecutor’s isolated
remark since he had admitted committing the double homicide. Furlow has not shown that
the statement was so prejudicial that it tainted the jury in its deliberations. In fact, the jury
rejected the prosecutor’s argument that Furlow should be found guilty of first-degree murder
and instead found him guilty of the lesser offense of second-degree murder.
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V. Jail-Time Credit
Furlow’s final argument is that the circuit court erred by not granting him 868 days
of jail credit for time he spent in custody awaiting trial. If a defendant is held in custody for
conduct that results in a sentence to imprisonment, the court shall credit the time spent in
custody against the sentence. Ark. Code Ann. § 5-4-404 (Repl. 2013). However, a defendant
is not entitled to jail credit on a subsequent sentence for time spent in jail on a parole
revocation, even if the parole revocation resulted from the crime for which he received the
subsequent sentence. On August 6, 2012, Furlow was convicted of residential burglary and
sentenced to fourteen years’ imprisonment. The exhibits clearly show that a parole-
revocation warrant had been issued for Furlow on May 10, 2019, approximately two months
prior to the murders. E.g., Wilson v. State, 56 Ark. App. 47, 52, 939 S.W.2d 313, 316 (1997).
Nothing in the record supports Furlow’s claim at trial that he was incarcerated in Craighead
County pending his trial on these charges because he could not make bond. It is, of course,
the appellant’s duty to bring up a sufficient record to enable the appellate court to consider
his claims. E.g., Bob Cole Bonding v. State, 340 Ark. 641, 643, 13 S.W.3d 147, 148 (2000).
Furlow does not provide any proof that he was in the custody of Craighead County and not
in the custody of the Arkansas Department of Correction (ADC) while he awaited trial on
this case. Furlow and his counsel had knowledge that the parole hold was in place and that
his parole had been revoked. In a pretrial motion filed on May 20, 2021, Furlow asked the
circuit court to exclude his statements to police that “he is on parole and has a violation.”
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Furlow did not show evidence he was incarcerated in Craighead County rather than
the ADC. However, there is evidence to support the State’s argument that Furlow was
incarcerated in the ADC on a parole violation while awaiting trial. The State made it clear
on the record that Furlow had to be transferred from the ADC for trial in Craighead County
by court order, reflecting that he was being held in the ADC for a parole violation. The court
records show that Furlow was transported from the ADC to Craighead County a minimum
of seven times while awaiting trial. Furlow knew his parole had been revoked and that he
was incarcerated in the ADC pending trial on these charges.
In light of the above facts, the circuit court correctly concluded that, while awaiting
trial, Furlow was incarcerated for a parole violation and not simply in jail pending trial on
the present charge and, thus, was ineligible for jail-time credit. The court did not err in
denying Furlow’s additional jail-time credit request.
Affirmed.
HARRISON, C.J., and MURPHY, J., agree.
Lassiter & Cassinelli, by: Michael Kiel Kaiser, for appellant.
Leslie Rutledge, Att’y Gen., by: Jacob H. Jones, Ass’t Att’y Gen., for appellee.
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