GUILTY AR - Beverly Carter, 49, Little Rock, 25 Sep 2014 - #10

[arkansasmimi]

8. A communication is confidential if it is made privately by any person to his or her spouse
and is not intended for disclosure to any other person. Ark. R. Evid. 504(a). An accused
in a criminal proceeding has a privilege to prevent his spouse from testifying as to any
confidential communication between the accused and the spouse. Ark. R. Evid. 504(b).
9. A person upon whom these rules confer a privilege against disclosure waives the
privilege if he …discloses or consents to the disclosure of any significant part of the
privileged matter. This rule does not apply if the disclosure itself is privileged. Ark R.
Evid 510.
10. In the instant case, the defendant’s statement to the Pulaski County Sherriff’s Office and
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).
11. In Mackool, the court pointed out that the combined effect of MacKool’s “initial
statement to the police late on September 13, 2003, as a person of interest, in which he
denied any knowledge of the murder and claimed to have a cordial relationship with the
victim; (2) Mike's statement that Leslie got the coin collection from her mother a week
before her mother's death; (3) Mike's questions to Bracey concerning whether the police
wanted to hear the truth and whether it was good to be up front; (4) Mike's telling Bracey
"probably, no," and "ain't got no reason to," when Bracey asked him if he would have
asked whether he should tell the truth if he was not guilty; and (5) Mike's statement that
Leslie "can cry and trying to say I made her do it, you know and that's just a bunch of
bull,” resulted in a waiver of marital privilege because he had disclosed a significant part
of the privileged matter. Id.
12. The court in Mackool goes on to point out that it is of no consequence that Mackool
made is statements to the police rather than other third parties. Id at 420.
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.

 

[arkansasmimi]

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.
Respectfully submitted,
/s/ John F. Johnson______________

 

[arkansasmimi]

10/30 Filing

ADDENDUM TO RESPONSE TO MOTION TO EXCLUDE BASED ON MARITAL
PRIVILEGE
Comes now the State of Arkansas, by and through John F. Johnson, Deputy Prosecuting
Attorney, and for its response to the defendant’s motion states the following:
1. The defendant is charged with capital murder and kidnapping.
2. His accomplice in this case is his wife Crystal Lowery.
3. In the days leading up to the kidnapping of Beverly Carter, the defendant discussed and
planned strategy for committing the crime with Crystal Lowery. These communications
continued through the commission of the charged crimes to the completion of the
criminal acts resulting in the death of Ms. Carter.
4. The defense is asserting that all communication between the defendant and Crystal
Lowery are privileged pursuant to A.R.E. 504.
5. In addition to the previous arguments made in the State’s response regarding spousal
privilege, the State directs the Court’s attention to A.R.E. 504(d) which 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.
6. The phrase “committing a crime against any of them” refers other potential victims that
are protected by this exception to Husband-wife privilege rule of evidence.
7. In other words, under A.R.E. 504(d), statements by one spouse to the other spouse made
in the course of committing a crime against 1) the other spouse, 2) a child of either, 3) a
person residing in the household of either, or 4) a third person are not privileged.
WHEREFORE, because the statements sought to be introduced by the State were made in the
course of committing a crime against a third person (Beverly Carter) and are therefore not
protected by spousal privilege pursuant to A.R.E. 504(d), the defendant’s motion to exclude
testimony based on marital privilege should be denied, and for all other necessary and proper
relief.
Respectfully submitted,
/s/ John F. Johnson______________

 

[arkansasmimi]

11/02 Filing

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

 

[arkansasmimi]

8. The State is correct that anything disclosed between Lewis and Lowery to law
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.

11. 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."

12. The State incorrectly believes "them" means "a third person." That is plainly
incorrect for two reasons.

13. 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.

 

[arkansasmimi]

14. Second, the State's definition does not comport with case law.

15. In Ricarte, the Arkansas Supreme Court reversed a conviction for allowing the
defendant's spouse to testify against him regarding an aggravated robbery, kidnapping, and theft.
Ricarte v. State, 290 Ark. 100, 717 S.W.2d 488 (1986). If the State was correct, then the
privilege would not have applied because the offenses were committed against "a third party."
The State is not correct and that is why the Supreme Court reversed. There are a number of
cases where the court could have resolved the issue differently if the State's interpretation is
correct, but none of them did. See Munson v. State, 331 Ark. 41, 959 S.W.2d 391 (1998);
Collins v. State, 2013 Ark. App. 399, Ridling v. State, 360 Ark. 424, 203 S.W.3d 53 (2005).

16. Additionally, other states with nearly identical language have addressed the
matter and have come to the exact same conclusion as Lewis. See People v. Sinohui, 47 P.3d
629 (Cal. 2002); Meeks v. State, 604 So.2d 748 (Miss. 1992).

17. The rationale behind the spousal privilege is that the court system does not want
to interfere with marital harmony. However, the exception for crimes committed against one
another exists because the crime, not the required testimony, would be the cause of any marital
discord if one spouse commits the crime against the other spouse. This is not true of crimes
committed solely against third parties.

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

 

[arkansasmimi]

I am curious as to how the Fed Suits filed, 1) against LEO at PCSO, that allegedly twisted AL arm in bathroom, 9/29 prior to him being booked on Kidnapping charge 9/30 and against another in the Jail that took the sling off. Both of these on this case has been approved by the Judge to proceed on Excessive Force. .... AL alleges he was scared is why he gave statements to Detectives and FBI.

And on the Fed Suit against Tucker Max about writing to CL and then them confiscating his letter to his Lawyer. The Prison changed their mind and allowed him to write to CL then moved him to Varner Supermax shot time later. So the Atty General filed to have dismissed as Moot as is now in a different Prison. Was Dismissed and AL has Appealed and it is moving forward on Appeal.

In the Tucker case AL stated in his complaint that there was Affidavit to CL. Since the Pros is stating in their Response about having Affidavits is where my curious thoughts are on that ....

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.

 

[KayKay.85]

https://caseinfo.aoc.arkansas.gov/c...=P&case_id=60CR-14-3928&begin_date=&end_date=.

New filings.

 

[KayKay.85]

Continued

 

[KayKay.85]

Order to transport CL

 

[mpnola]

Thank you, thank you, thank you!!! I am very glad to know that spousal privilege isnt as archaic as the defense made it seem. In 2015, a woman should be able to testify about a crime she is aware of, no matter what her marital status is, especially when she has already admitted to the crimes herself! It isn't just what she was told, it was what she witnessed. Add to that his big mouth of feeling important by telling everyone what he did, there is nothing left to be privileged. His pride in his infamy assisted in his downfall. Luckily.

 

[KayKay.85]

Wonder why CL is having to report to court? There's nothing listed on the court docket. Next up is AL's omnibus hearing November 16.

 

[NWLady]

IMO, AL's need for attention seems to have backfired.

I won't lose faith that he will get what he has coming to him and that there will be Justice For Beverly.

 

[arkansasmimi]

View attachment 84119
Order to transport CL

JMHO, it may be that the Judge wants to talk to CL prior to making his ruling on the matter of Marital Privilege at the Pretrial/ OH hearing on Monday, and/or possible the Def could be doing deposition?

The Sheriff of Pulaski County is hereby ordered to bring Crystal Lowery to the Pulaski County Courthouse,
Fourth Division, for a report on Thursday, November 12,2015, through Friday, November 13,
2015, at 3:00 p.m.

Yikes just realized that Friday is .. Friday the 13th.

It appears that the Order was prepared by Brett Qualls from the Public Defenders office (her public defender prior).
I was wondering if she would still have access to them because her plea of Guilty. She can't appeal those charges, but maybe its because she hasn't fulfilled her obligation yet of testifying? The Pros did say if she didn't truthfully testify that it voided the plea bargain and she would have to go thru a trial of her own.

 

[arkansasmimi]

There are multiple individuals that have rec'd subpoenas to appear at the hearing, those again JMHO will be in reference to the other Motions yet to be settled that were filed by Def on Oct 1.

10/06/2015
11:04 AM ORDER OTHER
Entry: REGARDING REQUESTS & MOTIONS
Images WEB https://caseinfo.aoc.arkansas.gov/c...=P&case_id=60CR-14-3928&begin_date=&end_date=

IN THE CIRCUIT COURT OF PULASKI COLINTY, ARKANSAS
FOURTH DIVISION
STATE OF ARKANSAS
VS.
ARRON LEWIS
PLAINTIFF
cP.20t4-3928
DEFENDANT
ORDER
Comes now for consideration the Defendant's various Motions and Requests, and based
upon a review of the case file the Defendant's pleadings, arguments made at the omnibus
hearing, and all other matters considered, the Court DOTH FIND:
The Defendant is charged with capital murder, kidnapping, and possession of firearms by
certain persons. On Thursday, October 1,2015, he filed some 28 Motions and Requests.
Decisions on some of these Motions were made during the omnibus hearing held October 5,
2015. The remainder will require testimony and be heard at the continued omnibus hearing now
set for November 16,2015

The Marital Privilege Motion > why JMHO all the filings back and forth, because they have to prior to Nov 16.. whereas the Judge will make his decision.

Defendant's Request for Discovery of Rule 404(b) Evidence
This Request is granted to the extent the State intends to use these materials. If the State
plans to use character evidence, or evidence of other crimes, wrongful conduct, or acts under
Rules 403 and 404, the State must notify the Defense of any said evidence prior to the November
16, 201 5, omnibus hearing.

Motions taken care of by this Order from Judge :

1)Motion to Sever Felon in Possession

2)Motion for Production of Criminal Historv and Disclosure of Plea Agreements or
Preferential Treatment of Witnesses.

3)Motion for Clarification

4)Formal Notice of Intent to Examine State's Witnesses

5)Request for Disclosure of Statements and Hearine on the Admissibilitv of Statements

6)Request for Disclosure of Criminal History of Potential Jurors

The remaining Motions and Requests filed on October l, 2Ol5, will require testimony,
which will be heard at the November 16,2015, omnibus hearing.
IT IS SO ORDERED.

 

[arkansasmimi]

Subpoenas issued for the Pretrial / OH Hearing as of Nov 10, 2015 (JMH))
https://caseinfo.aoc.arkansas.gov/c...=P&case_id=60CR-14-3928&begin_date=&end_date=

10/09/2015
11:41 AM SUBPOENA RETURN BY PROSECUTOR
Entry: KEEPER OF RECORDS, 11-16-15, OH @ 8:30 AM


10/16/2015
01:20 PM SUBPOENA RETURN BY PROSECUTOR
Entry: MICHAEL HENDRIX NOVEMBER 16 2015 OH @8:30AM
*He is listed in Interrogatories from the Fed Civil Suit as one of the Det iirc, that went with Det J Allison when AL was taken on a ride thru "3 diff counties" on Monday night Sept 29th, prior to being booked on Kidnapping Sept 30, also iirc Det Hendrix also was one of the 2 that transported AL from CID to Jail or court or something when charged with Cap Murder.

10/16/2015
01:20 PM SUBPOENA RETURN BY PROSECUTOR
Entry: S A STEPHEN BURROUGHS FBI NOVEMBER 16 2015 OH @8:30AM
*Special Agent FBI

10/16/2015
01:20 PM SUBPOENA RETURN BY PROSECUTOR
Entry: S/A CHRIS CONE NOVEMBER 16 2015 OH @8:30AM
**Chris Cone
Arkansas Attorney General's Offce
Little Rock, Arkansas AreaLaw Enforcement
Current
Arkansas Attorney General's Office
Previous
Pulaski County Sheriff's Office, Sherwood Police Department

Special Agent - Digital Forensics Examiner
Arkansas Attorney General's Office
March 2013 – Present (2 years 9 months)Little Rock
Digital Forensics Examiner responsible for investigating a variety of electronic evidence (mobile devices, computer systems, removable media, etc.) involved in criminal cases.

Investigator
Pulaski County Sheriff's Office
November 2010 – February 2013 (2 years 4 months)Little Rock, Arkansas Area
I am responsible for investigating a variety of criminal cases as well as missing person cases along with being a member of the Arkansas Internet Crimes Against Children (ICAC) Task Force

10/20/2015
10:48 AM SUBPOENA RETURN BY PROSECUTOR
Entry: INV JORDAN ABELS NOVEMBER 16 2015 OH @8:30AM

**Don't see ORDER to Transport AL from ADOC to court yet, but the Notice to Appear and Show Cause from the Judge has copy sent to Pros, Def and ADOC.

 

[arkansasmimi]

Just now looking for something else, I answered one of my own questions from http://www.websleuths.com/forums/sh...RESTS-C-Lowery-guilty&p=12124650#post12124650

The Home was searched here and Kidnapping Bench Warrant was issued at 4:37pm iirc giving them Probable Cause for the Kidnapping due to finding Beverly cell phone in Lewis/Lowery home. JMO

snip
8. On September 28, 2014, at 1:53 p.m., a search warrant was sworn out before the
Honorable Wayne Gruber to search the residence located at 165 Randall. On September
28, 2014, at 2:35 p.m., this search warrant was executed at 165 Randall and concluded at
3:30 p.m.
https://contexte.aoc.arkansas.gov/i...resent2?DMS_ID=03EKNGPCIRARXU97QJBE1FQNQZ50KL

2012 Ford Fusion warrant shows when sworn out before the Judge but not noted when executed~

in this Response

8. On September 28, 2014, at 11:58 p.m., a search warrant was sworn out before the
Honorable Wayne Gruber to search black 2012 Ford Fusion. https://contexte.aoc.arkansas.gov/i...resent2?DMS_ID=0KNGNRPZMBPM4L70D9TRKKAL66LAC3

Here is a link to the Def Motion to Suppress relating to the 2012 Ford Fusion...https://contexte.aoc.arkansas.gov/i...resent2?DMS_ID=NFCB626U76Z601I2SMHZ3004VBQVEP

Since there was duct tape listed as being found (noted in the Mental Eval), and the way the Motion to Suppress is written Def alleges knowledge of it was illegally gotten,,, JMO if they get this thrown out that the duct tape in the car wouldn't be allowed to show match used on Beverly. (I believe it does match).

 

[arkansasmimi]

I am curious as to how the Fed Suits filed, 1) against LEO at PCSO, that allegedly twisted AL arm in bathroom, 9/29 prior to him being booked on Kidnapping charge 9/30 and against another in the Jail that took the sling off. Both of these on this case has been approved by the Judge to proceed on Excessive Force. .... AL alleges he was scared is why he gave statements to Detectives and FBI.

And on the Fed Suit against Tucker Max about writing to CL and then them confiscating his letter to his Lawyer. The Prison changed their mind and allowed him to write to CL then moved him to Varner Supermax shot time later. So the Atty General filed to have dismissed as Moot as is now in a different Prison. Was Dismissed and AL has Appealed and it is moving forward on Appeal.

In the Tucker case AL stated in his complaint that there was Affidavit to CL. Since the Pros is stating in their Response about having Affidavits is where my curious thoughts are on that ....

I checked Pacer to see if anything new... On the case alleging excessive force from LEO at PCSO on Sept 29, 2015 in the rest and the LEO who took off the sling after returning from hospital....

That case was allowed to proceed by the Fed Judge. Nothing was done since (no court date or anything). AL filed a couple letters to the Magistrate and Judge inquiring as to why it has been stalled since the Judge Granted him Summary Judgement. AL asked for an attorney to help. He was Granted a Pub Defender today.

 

[arkansasmimi]

EASTERN DISTRICT OF ARKANSAS
LITTLE ROCK DIVISION
ARRON MICHAEL LEWIS PLAINTIFF
ADC #151373
V. NO: 4:14CV00673 BRW/JWC
CHARLES HOLLADAY, et al DEFENDANTS
ORDER
Plaintiff’s motion for appointment of counsel (docket entry #131) is GRANTED. In
accordance with the provisions of Local Rule 83.7, the following attorney is now appointed to
represent Plaintiff in this proceeding: Chet D. Dunlap, Attorney at Law, Post Office Box 54,
Trumann, AR 72472-0054. The Clerk shall enter Mr. Dunlap’s name as the attorney of record for
Plaintiff, and shall send counsel a copy of this order and a copy of Local Rule 83.7. The Clerk is
also directed to forward counsel a copy of this file 21 days after the entry of this order.
Plaintiff’s motion for a scheduling order (docket entry #129), and his motion for an order to
view or listen to CDs (docket entry #130) are DENIED. The case will be referred to the District
Judge for trial scheduling, and the Court presumes appointed counsel will work with defense
attorneys to ensure Plaintiff can access CDs as appropriate.
IT IS SO ORDERED this 10th
day of November, 2015.

UNITED STATES MAGISTRATE JUDGE

 

[arkansasmimi]

This case was filed Nov 20, 2014. All the dates of entry for all other entries prior were within days being acknowledged. Unsure why it took so long and AL writing a letter to Judge and Magistrate and asking for Public Defender for them to set a trial date but after doing so, only 5 work days from entering the letters and Motion to yesterday when Order was made advancing it. *this is in Civil Suit in their Individual Capacity*

Date Filed # Docket Text
09/02/2015 126 REPLY to Response to Motion re 102 MOTION for Summary Judgment filed by Arron Michael Lewis. (kdr) (Entered: 09/02/2015)
09/09/2015 127 OBJECTION to 125 Proposed Findings and Recommendations by Arron Michael Lewis. (ljb) (Entered: 09/09/2015)
09/17/2015 128 ORDER ADOPTING REPORT AND RECOMMENDATIONS 125 pltf's motion for summary judgment is denied 73 ; defts' motion for summary judgment 102 is granted in part and denied in part; pltf's official-capacity claims against defts are dismissed with prejudice; and pltf's individual-capacity claims against defts Holladay, Speer, Hazel, Lowe, Allison, Evans, Mitchell and Stowe are dismissed with prejudice; pltf may proceed with his excessive-force claims against only defts Bennett and Seibel in their individual capacities. Signed by Judge Billy Roy Wilson on 9/17/15. (tjb) (Entered: 09/17/2015)
10/06/2015 129 Scheduling Order by Arron Michael Lewis. (ljb) (Entered: 10/06/2015MOTION for)
10/27/2015 130 MOTION for Order by Arron Michael Lewis. (kdr) (Entered: 10/27/2015)
11/03/2015 131 MOTION to Appoint Counsel by Arron Michael Lewis. (kdr) (Entered: 11/03/2015)
11/03/2015 132 Letter to the Court from Plaintiff Arron Michael Lewis. (kdr) (Entered: 11/03/2015)
11/03/2015 133 NOTICE to the Court by Arron Michael Lewis (tjb) (Entered: 11/03/2015)
11/04/2015 134 Letter to the Court from Arron Lewis. (ljb) (Entered: 11/04/2015)
11/10/2015 135 ORDER granting 131 motion for appointment of counsel; appointing Chet D. Dunlap to represent Plaintiff in this proceeding; directing the Clerk to send counsel a copy of this order and a copy of Local Rule 83.7; directing the Clerk to forward counsel a copy of this file 21 days after the entry of this order; and denying Plaintiff's 129 motion for a scheduling order and 130 motion to view or listen to CDs. Signed by Magistrate Judge Jerry W. Cavaneau on 11/10/2015. (rhm) (Entered: 11/10/2015)