Parnell R. May v. State of Arkansas

                                    Cite as 

                SUPREME 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-17-169]
 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




                                               3
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, 

, 

. 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. 

. We will affirm the verdict if

substantial evidence supports it. 

. 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. 

. 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, 

, 

. 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. 

.

       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 

(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, 

, 

. 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, 

, 

, 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. 

. Furthermore, we will not reverse unless the appellant demonstrates that he

was prejudiced by the evidentiary ruling. 

.

                                       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, 

, 

 (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


       1
        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, 

, at 9, 

. 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, 

, 

. 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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