GUILTY AR - Beverly Carter, 49, Little Rock, 25 Sep 2014 - #11

[arkansasmimi]

IF those Search Warrants are out, its VERY possible that the Kidnapping Warrant was not valid. JMHO.

And from my notes from OM Hearing:
Inv Jordan Abels, who completed the Affidavit for Search Warrant and Search Warrant for the 2012 Ford Fusion, stated on the witness stand when bein examined by State Pros (cant remb her name dark haired Pros) Abels said that car was listed to CL but that AL was driving it (but thats not correct by the Ar State Assessors records online, it was listed under AL name)

Under Cross by Def Attny Bill James:
How do you know proof she was abducted?

Inv Abels>100% couldn't say

Def Attny Bill James
How can be evidence of a crime if you don't know. How did surv of a house give you an abduction if only seen drive away

Inv Abels> correct

Def Bill James> witness said someone that looked like def, but not the def

Inv Abels>correct

JMHO from my notes

 

[arkansasmimi]

I guess it all depends on how the Judge rules on the Pros new filing. I wonder if the Def gets a chance to respond?

That was like a sucker punch in the tummy. JMHO

 

[arkansasmimi]

This has been nagging at me as I didn't know what was about. I thought I had been keeping myself pretty decent notes on which Motions had been determined and so forth. So after a rainy afternoon of reading, if you weren't sick enough thinking about the Search Warrants being thrown out, or if your one of those that think its not that big of a deal and would rather think about what they do have. Take some tummy meds cause your gonna get sick....and see why those searches were very important in more ways than just the evidence they got.

The Court turns to two final matters - the Defendant has asserted in his post-omnibus
argument brief that his arrest by the LRPD was not supported by probable cause and that "the
Court should suppress all evidence found in the silver iPhone because the search warrant was a
general warrant." The defense has briefed this argument, though it filed no motions regarding
either issue prior to omnibus.13 The State has not had the opportunity to respond to these allegations, and the Court will not rule on them until they have been given the opportunity to do so

Bottom pg 28 top of 29 https://contexte.aoc.arkansas.gov/i...resent2?DMS_ID=W91IXRDASRGXJEZJK4QX4T3NOPNQ29

13>13 The Court is not aware of any assertion prior to this brief that the LRPD had no probable cause
to arrest the Defendant. The defense alleged in their pre-trial Motions that the search warrants for
the home and the vehicle were overly broad, and the Court has granted these Motions. Regarding
the assertion that the warrant for the silver iPhone was also a general warrant, the Court does not
see this distinct issue presented in the pre-trial Motions. The supposedly offensive warrant
language for the iPhone complained of by the defense also does not appear to be present in the
exhiUiti submitted thus far to the Court. If the defense is arguing this, the State should be given
the opportunity to respond.

I am still confused because that comment about illegal arrest or detention was in #6 of of the #28 the Pre OH hearing Motions filed on Oct 1, 2015, the way it sounds in the Judges Order (to me)that it was in the Def Post OH hearing Brief. If its in the Def Post OH Brief, it must not be in what is filed in the docket (which is very well possible) or i have just looked over so many times I just not seeing it. JMHO
Def Post OH Brief https://contexte.aoc.arkansas.gov/i...resent2?DMS_ID=0MRL2XZIGTP2CHD1AWAZ1QUVLBTFZQ

 

[arkansasmimi]

And I also think they got into that silver iPhone just like they did with Trayvon Martins phone. No password needed. Otherwise they would not have any physical evidence from the phone, correct?

Per the Def Post Hearing Brief, page 14 about the search warrant : X. THIS COURT SHOULD SUPPRESS ALL EVIDENCE FOUND IN THE
SILVER IPHONE BECAUSE THE SEARCH WARRANT WAS A GENERAL
WARRANT
snip> The warrant authorized all phone calls, voice mails, text messages, emails, photos, videos, geo tags, location data, and "any other stored electronic data on the device." https://contexte.aoc.arkansas.gov/i...resent2?DMS_ID=0MRL2XZIGTP2CHD1AWAZ1QUVLBTFZQ

 

[arkansasmimi]

So off I go looking trying to figure out what and where this was alleged at and found this, didn't even think about it until I saw it when looking just now....

/01/2015
01:56 PM MOTION SUPPRESS JAMES JR , WILLIAM OWEN
Entry: none.
Images WEB

MOTION TO SUPPRESS STATEMENTS DURING INTERROGATION ON
SEPTEMBER 29-30, 2014
Snip>
COMES NOW, the Defendant, Aaron Lewis, by and through counsel, the James Law
Firm, and for his motion to suppress statements, states:
1. On or about September 29-30, 2014, members of the Pulaski County Sheriff's Office
conducted a detention or arrest of the Defendant.
2. An interrogation followed the arrest or detention, which was illegal as the police did
not have probable cause to arrest or detain the Defendant, and therefore, any statements which
are the fruits of such an illegal arrest, are inadmissible against the Defendant. U.S. Const. amend.
IV, IVX; Ark. Const. art. II, § 15; Dunaway v. New York, 442 U.S. 200 (1979); Brown v. Illinois,
422 U.S. 590 (1975); Griffin v. State, 347 Ark. 788; 67 S.W.3d 582 (2002).
https://contexte.aoc.arkansas.gov/i...resent2?DMS_ID=7CL9FYEKK8LLKKVWNESLDGOR7DLU5H

Whoa, was googling those cases and the one Griffin v State one thing that came up was THIS! This is the the Def Co Chair in this case! http://www.pulaskibar.com/uploads/Criminal Motions Practice - Lee Short.pdf

this is what looked like lol
[PDF]Criminal Motions Practice – Lee Short - Pulaski County Bar ...
www.pulaskibar.com/.../Criminal Motions Practice - Lee...
home. State v. Brown, 356 Ark. 460, 156 S.W.3d 722 (2004). Exceptions ...... It also cites Griffin v. State, 347 Ark. 788, 67 S.W.3d 582 (2002); Griffin,. Page 12.

 

[arkansasmimi]

IF the Kidnapping charge got thrown out would they still be able to continue with Capital Murder? My head hurts now

 

[klily444]

IF the Kidnapping charge got thrown out would they still be able to continue with Capital Murder? My head hurts now

I think it would depend on the COD and other factors. I don't like thinking that there is a possibility he could walk from this. I can't even wrap my brain around it, and the anguish it would cause the Carter family.
You bring up some really good points that we will likely not know the answer to until they play out; that in itself makes my stomach hurt. I have followed since the beginning and I still can't keep up with this mess. AL will be relentless until the very end. He is a sociopath who can't allow himself to "lose". Yes, LE needs to play by the rules; I just wish the rules didn't apply to people like AL.

 

[arkansasmimi]

I think it would depend on the COD and other factors. I don't like thinking that there is a possibility he could walk from this. I can't even wrap my brain around it, and the anguish it would cause the Carter family.
You bring up some really good points that we will likely not know the answer to until they play out; that in itself makes my stomach hurt. I have followed since the beginning and I still can't keep up with this mess. AL will be relentless until the very end. He is a sociopath who can't allow himself to "lose". Yes, LE needs to play by the rules; I just wish the rules didn't apply to people like AL.

I agree!
Only thing about this stuff getting thrown out is it has nothing to do with AL and his thinking he smart or not. Its how they wrote up the Search Warrants. That's what really makes my head hurt.
The good thing, if you wanna call it that is that he was dumb and played that recording and now that gets in but all the other stuff is out, that was recorded of him saying. (in the interrogations I mean) If he hadn't played not sure if it would be in or not. JMHO

 

[arkansasmimi]

No date when transfer for security reason I feel sure, jmho. Could be for trial or to meet for depositions or go over trial stuff. But was posted yesterday. Nothing else so far.

12/14/2015
11:58 AM ORDER TRANSPORT DETAINEE LOWERY, CRYSTAL HOPE
Entry: none.
Images No Images https://caseinfo.aoc.arkansas.gov/c...=P&case_id=60CR-14-3928&begin_date=&end_date=

 

[zxbeer]

http://katv.com/news/local/prosecutors-ask-judge-to-reconsider-ruling-in-murder-case

 

[zxbeer]

Prosecutors are asking a judge to reconsider part of his decision that threw out much of the evidence against the man charged in the death of a central Arkansas real estate agent.


Surely they are not relying on this only for a prosecution.

 

[arkansasmimi]

Prosecutors are asking a judge to reconsider part of his decision that threw out much of the evidence against the man charged in the death of a central Arkansas real estate agent.


Surely they are not relying on this only for a prosecution.

I agree. Trying to think off top of my head what we know of that they do have (could be wrong)

1.CL testimony - but IF I there some they may not be able to use,
2.Anything found at the scene where remains located
3.Anything in the dump truck (if it was used in this crime)
4.Media interview with Shannon Miller at the prison
5.Media stuff with AL walking to be booked after remains located, (there is one that Ken Buffa ?sp from KARK CH 4 but that was prior to the "rich broker, worked alone comments and when he was going to be booked on the Kidnapping chg)
6.Text messages and emails
7.recording of Beverly Carter saying do as told
8.Anything that was said "after AL yelled for FBI guy to come back" also in the patrol car when went on ride, and back at CID office until he said "lawyer" **which none of this was recorded and was asked about during the hearing.
9. Anything from the State Hosp Dr
10. eyewitness who saw a slender white male and black car (but I dont know that all or if a positive ID)
11. Whatever physical evidence from phone AL had that the officer took at the accident scene (think this is where the emails and texts and phone records comes from)

**we wont know about anything in the car until the Judge makes his ruling, but should be soon as well as the other issues, trial is less than a month away (which the media keep reporting incorrect as Jan 11, it is Jan 12 per court docket JURY TRIAL 01/12/2016
09:00 AM COURTROOM 440, 4TH DIVISION CIRCUIT HON. HERBERT WRIGHT - 4TH DIVISION 6TH CIRCUIT (and we have Christmas and New Years Holidays in between now and then.
JMHO

 

[arkansasmimi]

Prosecutors are asking a judge to reconsider part of his decision that threw out much of the evidence against the man charged in the death of a central Arkansas real estate agent.


Surely they are not relying on this only for a prosecution.

Also from your article:
On Friday, prosecutors asked Wright to reconsider his ruling regarding the car, arguing that police officers are allowed to search vehicles that have been impounded.

But the judge said what he needed as to possibly reconsider.
From the Pros MOTION TO CONSIDER INVENTORY SEARCH OF THE FORD FUSION
"14) This Court has ruled that the search of the vehicle pursuant to the search warrant was a
violation of the defendant’s Constitutional rights. However, this Court also ruled: “If the
State can show that any items found in the vehicle that they seek to introduce were
discovered during an inventory search and not during the search pursuant to the illegal
warrant, this Court will consider admitting them.”
WHEREFORE, the State respectfully requests the opportunity to supplement the record
regarding PCSO’s inventory search policy, that an inventory searched had commenced, and to
prove by a preponderance of the evidence the items in the trunk would have inevitably been
discovered pursuant to an inventory search"

As I said before, hindsight they were better off going with the inventory search documentation for some stuff. I not sure that DNA would be someones belongings that would be listed would it? (thinking hair and so forth, that was listed in the Search Warrant) Did they officially stop the inventory search since they suspended it to get the Search Warrant? JMHO, that gonna be the "key". The case law about would have found it anyway, through legal means, is where they are trying to use that "key". I looked at a bunch of diff cases about that "the inevitable discovery doctrine" the Pros is seeking to use, but couldnt find anything to me that made sense because they searched as per law and PCSO policy, but stopped or suspended then got the illegal search warrant. Just proves what I said I DON"T KNOW LAW FROM LAW SCHOOL lol so its jmho

 

[arkansasmimi]

IF the Kidnapping charge got thrown out would they still be able to continue with Capital Murder? My head hurts now

Motion to Dismiss the Charge of Capital Murder with the Underlying Felony of Kidnapping
The parties agreed at omnibus that this Motion is currently premature. The Court hereby
defers ruling on this Motion, as it is not yet ripe for a ruling'
pg 2/29

The reason I was worried is because the OH was prior to the Judge rulings on the other Motions. If the stuff from these searches is what they used for the Kidnapping charge, and now thrown out will it still be Capital Murder. One of the Charges they orig charged AL with was Robbery and iirc it was one of the Underlying Felony. That Charge on the docket sheet shows it was bound over to Circuit Court (as was CL TBR). Nothing was presented in this case as far as I seen about Robbery. So could they drop back and use it still? Thinking out loud, but if so what was it they robbed? if anything in the Search Warrants that would still be "out" correct? I looked up "ripe for a ruling" JMHO

Ripe
A claim is "ripe" when the facts of the case have matured into an existing substantial controversy warranting judicial intervention. Article III, Section 2, Clause 1, of the U.S. Constitution requires federal courts to decide only actual cases and controversies. The requirement that a claim be ripe for judicial review is an issue of subject matter jurisdiction closely related to the "standing" requirement.

The question of ripeness often arises in cases where the harm asserted by the plaintiff has not yet occurred. Because courts are not permitted to decide merely hypothetical questions or possibilities, the court must determine whether the issues are fit for judicial review. A case is typically considered ripe if it presents a purely legal issue, or if further development of the facts will not render the issue more concrete.

For Supreme Court decisions focusing on the "ripeness" issue, see, e.g., ; Reno v. Catholic Social Servs., 509 U.S. 43 (1993); Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) and Abbott Laboratories v. Gardner, 387 U.S. 136 (1967) https://www.law.cornell.edu/wex/ripe

 

[arkansasmimi]

I went back and made note of all Motions (Def and State) and ones that Judge has ruled on. JMHO it appears to me that the Def will probably Respond to the State's MOTION TO CONSIDER INVENTORY SEARCH OF THE FORD FUSION, or that is what was done last time the State filed ADDENDUM TO RESPONSE TO MOTION TO EXCLUDE BASED ON MARITAL
PRIVILEGE. Then the Judge will make his decision. Again this is JMHO.

Also, looking at the last time it was on the Docket that CL had an Order to Transport, she most likely went to a Deposition or meeting with the State or Def. Since this new Order, and that they have moved her closer, that's my opinion of what that is.

Refreshing over the various stuff, since we have these Rulings, I am trying to get a grip on what the ruling means on some things.

 

[arkansasmimi]

Looks like the Judge ruled 4 days earlier than he had to lol and the Def was late getting filed but evidently it was ok

11/16/2015
09:07 AM COURT APPEARANCE LEWIS, AARON M
Entry: DEF PRESENT WITH ATTY HEARING ON MOTION TO SUPPRESS-WITNESSES SWORN, TESTIMONY TAKEN, PARTIES TO PROVIDE CLOSING BRIEF/ARGUMENT BY 11/23/15 NOON, LIMIT 15 PAGES, COURT WILL DECIDE BY 12/15

11/23/2015
09:17 AM BRIEF FILED JOHNSON, JOHN F
Entry: STATE'S BRIEF

11/23/2015
02:55 PM BRIEF FILED JAMES JR , WILLIAM OWEN
Entry: Post-Hearing Brief

 

[arkansasmimi]

OK the Judge ruled on the part about "them" so I think I understand that part. I am trying to understand what CL can testify about.

#22. MOTION IN LIMINE TO EXCLUDE ANY TESTIMONY BY CRYSTAL LOWERY
CONCERNING COMMUNICATION BETWEEN DEFENDANT AND LOWERY https://contexte.aoc.arkansas.gov/i...resent2?DMS_ID=XIXJDH5IUIQ9N0HTDTUIWL65VLVPE1

States :RESPONSE TO MOTION TO EXCLUDE BASED ON MARITAL PRIVILEGE
https://contexte.aoc.arkansas.gov/i...resent2?DMS_ID=O3DLR3EGOTD1U4J26ZT4ZRBK4JGRJX

2. Following his arrest, the defendant was advised of his rights on multiple occasions and
made multiple statements to the members of the Pulaski County Sherriff’s Office and the *****NOW LIMITED
FBI regarding the events surrounding the death of Ms. Beverly Carter.

3. Following his arrest, the defendant made several statements to the media regarding the
murder of Ms. Carter and how he came to target her.

4. Following his return to the Arkansas Department of Corrections, the defendant contacted
the media and gave an on camera interview regarding the death of Ms. Carter.

5. On September 25, 2015, the defendant met with Dr. Melissa Dannacher of the Arkansas
State Hospital for the purpose of a second mental evaluation. In his first mental
evaluation the defendant declined to discuss the homicide. For his second evaluation, the
defendant brought with him a handwritten, highly detailed narrative regarding the death
of Ms. Carter. In this narrative the defendant attempts to explain the evidence contained
in the investigative file that he had been supplied via discovery.

6. While the defendant was incarcerated, but prior to Crystal Lowery entering a negotiated
plea of guilty, the defendant wrote several letters to Lowery regarding the murder of Ms.
Carter, suggesting things that Lowery should say in her defense.

7. One of the letters included affidavits written and signed by the defendant, Lewis. The
affidavits are statements by this defendant pertaining to certain evidence against the
defendant and Lowery wherein the defendant is making certain assertions about that
evidence. In the letter the defendant instructs Lowery to present the affidavits to a third
party (presumably some branch of law enforcement or a jury). As evidence of her
innocence.

10. In the instant case, the defendant’s statement to the Pulaski County Sheriff’s Office and ******NOW LIMITED
the FBI, alone, are enough to waive the marital privilege sought by the defendant. This
precise issue was ruled on by the Arkansas Supreme Court in Mackool v. State, 365 Ark.
3d 416, 231 S.W.3d 676 (Ark. 2006).

13. In the letters the defendant sent to Lowery, he instructed her what to say to a third party
regarding evidence. He also provided Lowery with affidavits regarding that evidence and
instructed her to show them to a third party. By doing so, this defendant waived spousal
privilege on the topic of the death of Ms. Carter. David v. State, 286 Ark. 205, 691 S.W.
2d 133 (Ark. 1985) In David, the defendant instructed his wife what to say to the police
regarding the homicide he had committed and the court found that these were statements
intended to be communicated to a third party and were, therefore, not privileged under
A.R.E. 504.

14. In the instant case, there is a decisive waiver of the privilege by the defendant through his
1) statements to law enforcement, 2) comments to the news media, 3) interview with the
news media while in prison, 4) the narrative he gave to Dr. Dannacher, and 5) the
affidavits he sent to Crystal Lowery. In all of the foregoing instances the defendant
made statements to third parties (or intended statements to be presented to third parties)
regarding the circumstances surrounding Ms. Carter’s death. Having made all these
statements and disclosures, the defendant cannot now claim, as required by A.R.E
504(a), that the communications between him and Ms. Lowery about this topic are still
confidential.

15. In this case, as in MacKool, the defendant has made so many highly detailed statements
to third parties about his involvement in the death of Ms. Carter that he has waived
marital privilege to all statements made to Crystal Lowery concerning the death of Ms.
Beverly Carter. (See MacKool at 437 where the court ruled that Leslie MacKool would
be allowed to testify “concerning events taking place from August 2003 up until the
murder on September 12.)
WHEREFORE, the State requests that the defendant’s motion to exclude testimony based on
marital privilege be denied, and for all other necessary and proper relief.

 

[arkansasmimi]

REPLY TO STATE'S RESPONSE ON SPOUSAL PRIVILEGE ISSUE
COMES NOW, Defendant, Aaron Lewis, by and through counsel, James Law Firm, and for his
reply to State's response on spousal privilege issue, states:
1. Defendant is currently charged with Capital Murder.

2. There are largely two categories of statements the State may use allegedly made
between Aaron Lewis and Crystal Lowery.

3. One category consists of statements made in letters allegedly from Lewis to
Lowery telling her what she should say to others and what her testimony should be. Any
statements made by Lewis to Lowery telling her what to say are admittedly not privileged under
Arkansas Rule of Evidence 504. See Ridling v. State, 360 Ark. 424, 203 S.W.3d 63 (2005).

4. The second category consists of communication between Lewis and Lowery
allegedly planning illegal activity, discussing this alleged offense, and allegedly communicating
afterwards about the offense.

5. The second category of statements is protected by the spousal privilege of
Arkansas Rule of Evidence 504.

6. The State makes two arguments against this information being privileged.

7. First, the State argued that the spousal privilege was inapplicable because Lewis
had disclosed information in his interrogations, media statements, and psychological evaluation.

8. The State is correct that anything disclosed between Lewis and Lowery to law ********SEE Judges Note on this
enforcement or media would destroy privilege for those communications. However, Lewis
denies that he told law enforcement or the media about his discussions with Lowery prior to,
during, and after the alleged incident. Thus, privilege would be intact.

9. The State is incorrect that disclosure to the psychologist would destroy privilege.
The Arkansas Court of Appeals has made it clear that the court system cannot force an individual **********
to choose between asserting his rights and complying with the mental evaluation process. See
Porta v. State, 2013 Ark. App. 402, 428 S.W.3d 585 (2013). To do so would be a direct
violation of Lewis' federal and state due-process rights.

10. The second argument the State made is that the exception in A.R.E. 504(d)
applies. The State's argument is contrary to case law as well as common sense.

**the remainder goes on about the rest of 504(d) which the Judge ruled the State's interpretation was incorrect so I left out of this post

18. This Court should prevent Crystal Lowery from testifying to any statements made
between them prior to, during, or after the alleged incident other than those statements which the ********
State can show were discussed with a third party.

WHEREFORE, Defendant, Aaron Lewis, respectfully requests this Court to hold a
hearing on the issue of whether statements made by Defendant or Lowery were privileged, and,
ultimately, to prevent the State from eliciting privileged communication.
Respectfully submitted,
/s/ William O. “Bill” James, Jr
https://contexte.aoc.arkansas.gov/i...resent2?DMS_ID=19IUODYR4J0D6IRWJL5MTB5KLJAU5G

 

[arkansasmimi]

STATE’S BRIEF IN SUPPORT OF RESPONSE TO MOTION TO EXCLUDE
TESTIMONY BASED ON MARITAL PRIVILEGE


On September 25th, 2014, the defendant arranged to meet with Beverly Carter under the
guise of looking at some real estate. Ms. Carter was kidnapped by the defendant from that
prearranged location. The planning of this crime began days before the defendant actually
kidnapped Ms. Carter. A participant in the planning was the defendant’s wife, Crystal Lowery.
The defendant and Lowery were both charged with capital murder and kidnapping. On July 7th
2015, Lowery entered a negotiated plea of guilty to murder and kidnapping in exchange for her
truthful testimony against the defendant.
The defendant has filed a motion seeking to exclude Lowery’s testimony in reliance on
A.R. E. 504. It is the State’s contention that the defendant has waived this privilege, as
contemplated by A.R.E. 510, by making repeated statements to third parties about the same
information he had discussed with Lowery.

The State further asserts that the communications between the defendant and Crystal
Lowery, made while planning a crime against a third person, are excepted from the rule
regarding Husband-wife privilege pursuant to A.R.E. 504(d)

1) Following his arrest, the defendant was advised of his rights on multiple occasions
and made multiple statements to the members of the Pulaski County Sheriff’s Office and the
FBI regarding the events surrounding the death of Ms. Beverly Carter.
***These statements are now very limited***

(2) The defendant made several statements to the media regarding the murder of Ms.
Carter and how he came to target her.

(3) Upon his return to the Arkansas Department of Corrections, the defendant contacted
the media and gave a separate on camera interview regarding the death of Beverly Carter.
(4) While the defendant was incarcerated, but prior to Crystal Lowery entering a
negotiated plea of guilty, the defendant wrote several letters to Lowery regarding the murder of
Ms. Carter, suggesting things that Lowery should say in her defense. One of the letters included
affidavits written and signed by the defendant, Lewis. The affidavits are statements by this
defendant pertaining to certain evidence against the defendant and Lowery wherein the defendant
is making assertions about that evidence. In the letter the defendant instructs Lowery to present
the affidavits to a third party (presumably some branch of law enforcement or a jury), as
evidence of her innocence.

(5) Finally, on September 25, 2015, the defendant met with Dr. Melissa Dannacher of the
Arkansas State Hospital for the purpose of a second mental evaluation. In his first mental
evaluation the defendant declined to discuss the homicide. For his second evaluation, the
defendant brought with him a handwritten, highly detailed narrative regarding the death of Ms.
Carter. In this narrative the defendant attempts to explain the evidence contained in the
investigative file that he had been supplied via discovery.

2. Statements to media
Following his arrest the defendant was filmed by the media walking to and from Pulaski
County District Court. While walking he was asked about the death of Beverly Carter and why
Ms. Carter was selected to be his victim. He responded that he was sorry and that he picked her
because she was a “rich broker.” Then, after he had been returned to Arkansas Department of
Corrections, the defendant gave an extensive interview regarding his involvement in the death of
Ms. Carter and the circumstances of her death. Again, the defendant in making these statements
which reveal a significant part of the privileged matter waives his privilege.

3. Letters and affidavits to Crystal Lowery
In the letters the defendant sent to Lowery, he instructed her on what to say to a third party
regarding evidence. He also provided Lowery with affidavits regarding that evidence and
instructed her to show them to a third party. By doing so, this defendant waived spousal
privilege on the topic of the death of Ms. Carter. In David v. State, the defendant instructed his
wife what to say to the police regarding the homicide he had committed and the court found that
these were statements intended to be communicated to a third party and were, therefore, not
privileged under A.R.E. 504. David v. State, 286 Ark. 205, 691 S.W. 2d 133 (Ark. 1985)

4. Statement to Dr. Dannacher
On September 25, 2015, the defendant met with Dr. Melissa Dannacher of the Arkansas State
Hospital for the purpose of a second mental evaluation. In his first mental evaluation the
defendant declined to discuss the homicide. For his second evaluation, the defendant brought
with him a handwritten, highly detailed narrative regarding the death of Ms. Carter. In this
narrative the defendant attempts to explain the evidence contained in the investigative file that he
had been supplied via discovery.
Prior to questioning the defendant about his version of the events, Dr. Dannacher informed
the defendant that the communications between the two of them were not confidential. Dr.
Dannacher informed the defendant that she:
“would be typing notes during the evaluation and submitting a report that would
be viewed by his attorney, the prosecuting attorney, the judge, and any attendee to
a court proceeding in which I would be asked to testify. I also informed him that I
may be required to talk about his statements and our discussions in open court
during any phase of a trial, including the sentencing phase if he were found guilty.
He was informed that he possessed the right to refrain from answering any
questions that he believed may incriminate him. Mr. Lewis stated that he recalled
from the previous evaluation that the content of our discussions would not be
confidential.” Arron Lewis Mental Evaluation: Disclosure of the Purpose and the
Voluntary, Non-Confidential Nature of the Examination
***
The State is not attempting to introduce the statement given to Dr. Dannacher in its case in chief.
But the fact that the defendant voluntarily gave such a detailed statement to Dr. Dannacher,
knowing that the statement would be revealed to so many people, clearly waives any privilege to
confidentiality in those statements.
****So does this mean that the State is not attempting to introduce that Affidavit (that we think is what he told the Dr, pure speculation on our parts. Not known to be a fact that same thing.

*left out other stuff about MacKool as it not used by Judge*
CONCLUSION
In this particular case, because of the many times the defendant has made statements
regarding his participation in bringing about the death of Ms. Carter and the variety of ways he
has made them, the defendant has not just pierced the veil of marital privilege, he has shredded
it. Crystal Lowery should be allowed to testify about all conversations between she and the
defendant regarding the death of Ms. Carter and the circumstances leading up to it.
Additionally, considering the language of A.R.E. 504(d) in conjunction with the ruling of
the 8th Circuit in US v. Evans, the communications made between the defendant and Crystal
Lowery pertaining to committing a crime against a third person (Ms. Carter) should be excepted
from consideration as being privileged communications.
Respectfully submitted,
/s/ John F. Johnsonhttps://contexte.aoc.arkansas.gov/imaging/IMAGES/DMS/CK_Image.Present2?DMS_ID=OC4E3R2KTEYM97E21GUWDY227HB8HZ

 

[arkansasmimi]

REPLY TO STATE'S BRIEF IN SUPPORT OF RESPONSE ON MARITIAL
PRIVILEGE ISSUE
COMES NOW, Defendant, Aaron Lewis, by and through counsel, James Law Firm, and for his
reply to State's brief in support of response on marital privilege issue, states:
Introduction
The State seeks to use statements made during the course of the marriage between Aaron
Lewis and his wife, Crystal Lowery. These statements are from prior to the alleged offense,
during the alleged offense, and after the alleged offense. The State's response has continued to
alter and expand; thus, this reply is in direct response to the brief filed on November 10, 2015.
The State's brief addressed an alleged waiver of the privilege as well as an exception to the
privilege. Each of those arguments also had sub-points. For clarity purposes, this reply will
track the State's brief.
I. WAIVER OF THE PRIVILEGE
A. Statements to law enforcement
The privilege is waived with regards to any statements made to law enforcement
concerning what Lewis and Lowery discussed prior to the alleged offense, during the alleged
offense, and after the alleged offense. This does not waive the privilege with regards to all
conversations before, during, and after the alleged incident with Crystal Lowery

B. Statements to the media
The privilege is waived with regards to any statements made to the media concerning
what Lewis and Lowery discussed prior to the alleged offense, during the alleged offense, and
after the alleged offense. This does not waive the privilege with regards to all conversations
before, during, and after the alleged incident with Crystal Lowery.

C. Letters to Crystal Lowery
The privilege is waived with regards to any letters sent to Crystal Lowery regarding what
she should tell the police, prosecutor, and jury. This does not waive the privilege with regards to
all conversations before, during, and after the alleged incident with Crystal Lowery.

D. Statements during forensic examination
"A person upon whom these rules confer a privilege against disclosure waives the
privilege if he or his predecessor while holder of the privilege voluntarily discloses or consents
to disclosure of any significant part of the privileged matter. This rule does not apply if the
disclosure itself is privileged." A.R.E. 510. This Court should not find that privilege is
destroyed when a criminal defendant complies with a mandatory forensic evaluation. See
A.C.A. 5-2-305 (mandating an examination anytime the defense of not guilty by reason of
mental disease or defect). To do so would again put the defendant in the same situation as was
referenced in Porta v. State, 2013 Ark. App. 402, 428 S.W.3d 585 (2013). If this Court holds
that one would waive privilege by complying with the forensic examination, then defendants will
have to make numerous unfair choices. Defendants will have to disregard the mandatory
examination or waive privilege. Defendants will have to give up their right to have a fair
adjudication of their fitness to proceed or waive privilege. Defendants will have to give up their
right to a fair adjudication of their criminal responsibility or waive privilege. The law should
never force someone into making those decision, and it does not. See Porta, supra.

******This is interesting because of the case law that the Judge is Allowing CL to Testify***
II. EXCEPTION TO SPOUSAL PRIVILEGE
A. Federal exceptions
The State has cited cases that make exceptions for the spousal privilege in two areas.
First, is the situation where the defendant cannot stop his spouse from testifying. Second, is the
situation where the spouses are partners in crime. These exceptions have no basis in Arkansas
case law. If the State wishes for this case to be decided based upon the federal rules of evidence
then perhaps it should contact the US Attorney regarding an indictment. However, while it
remains in state court, the State has not cited any authority that the marital privilege in 504
contains such exceptions. The State has not cited any Arkansas case law, dicta, or even any
language in Arkansas Rule of Evidence 504 that suggests those exceptions exist. The Rules
could be amended if those exceptions were desired, and they have not been. Thus, this Court
should not carve out new exceptions simply because federal jurisdictions have done it
differently.

B. Arkansas exception
Arkansas Rule of Evidence 504 states, "There is no privilege under this rule in a
proceeding in which the spouse is charged with a crime against. . . the person or property of a
third person committed in the course of committing a crime against any of them." The dispute
between the State and Lewis exists in determining the definition of "them." The State incorrectly
believes "them" means "a third person." That is plainly incorrect for two reasons.
First, the State's definition does not comport with common sense. "Them" is clearly
referring to the individuals listed in (d)(1)-(3), which include (1) the other spouse, (2) the child of
either, or (3) a person residing in the household of either. The State's interpretation renders 1-3
superfluous and creates a limitless exception that destroys the privilege itself. Under the State's
interpretation, there would never be a privilege where there was a crime committed against the
person or property of anyone. It would be nonsensical for the drafters of the rule to list the
categories of exceptions if they meant "everyone" as the State believes. The State's
interpretation should be rejected because it does not comport with common sense.
**goes on to state that the State is incorrect about "THEM" which the Judge ruled State was incorrect, so leaving out in this post***

https://contexte.aoc.arkansas.gov/i...resent2?DMS_ID=8G0471K8WU7Q2RQWDULYMWEVXJEN8H