Page:Walls v. State (1999).pdf/11

500 respect to the Hogan family, but those charges had been nol prossed, apparently in association with Walls's guilty pleas. Walls had never been charged in connection with the Stocks family murders. Despite these facts, the circuit judge heard evidence, as victim-impact evidence, that Walls controlled Heath as a hit man and ordered him to murder his family. The judge ultimately concluded that this was true.

[8, 9] We cannot sanction evidence of another crime as legitimate victim-impact evidence. Clearly, it is not relevant. On the issue of whether it was unduly prejudicial, that goes without saying. The State argues that Walls's counsel made no objection under Ark. R. Evid. 403 that the unfair prejudice of the testimony of the Stocks murders outweighed its probative value as victimimpact evidence. We agree that an objection couched in Rule 403 terms was not made, though an objection to the judge's consideration of dismissed offenses was clearly offered. There is, of course, the point that the circuit judge had previously stated that the rules of evidence would not apply to victim-impact evidence. Furthermore, we have previously considered prejudice in murder cases to be part of the analysis of what is relevant victim-impact evidence under the sentencing statute, § 16-97-103(4). ''See, e.g., Noel v. State, supra; Hicks v. State, supra. See also Payne v. Tennessee, supra.''

The State continues that the Stocks murders were relevant to show the character of Walls under § 16-97-104(5). As authority, the State cites us to Nichols v. United States, 511 U.S. 738 (1994). The Nichols case involved whether a sentence for drug charges could be enhanced based on an uncounseled DUI misdemeanor conviction. In its discussion, the Court acknowledged that past criminal behavior could be considered by a sentencing court even when no conviction resulted. However, the Court in Nichols stated that such prior criminal behavior must be proved by a preponderance of the evidence.

In the case before us, the record does not reveal any notice to defense counsel that the issue of Walls's responsibility for the Stocks murders was to be tried to the circuit judge for sentencing purposes. The record only discloses a motion in limine by the