Supreme Court of Arkansas
Riggs v. State
Christina Marie RIGGS v. STATE of Arkansas.
No. CR 98-1281.
November 04, 1999
John Wesley Hall, Jr., Little Rock, for
appellant.Mark Pryor, Att'y Gen., by: David R. Raupp, Sr. Asst. Att'y
Gen., Little Rock, for appellee.
Appellant Christina Marie Riggs appeals her
judgment of conviction for the capital murder of her two children,
Justin Thomas (age 5) and Shelby Riggs (age 2). She raises four
points on appeal relating to the guilt phase of her trial: (1) that
her statement to police was involuntary and her waiver of Miranda
rights was also involuntary, unknowing, and unintelligently made due
to her attempted suicide by drug overdose and overreaching police
conduct; (2) that the trial court erred in refusing to give
instructions that the jury should consider her mental disease and
defect in assessing her ability to form the necessary intent to
murder; (3) that the trial court erred in overruling her objection to
prejudicial remarks in the prosecutor's opening statement; and (4)
the trial court erred in admitting into evidence four prejudicial
photographs. Riggs presents no issues relating to the sentencing
phase of her trial and at her trial asked to receive the death penalty
after her guilt for capital murder was determined. We are not
persuaded that any of these issues has merit, and we affirm.
The record reveals that at the time of the murders
of her children Riggs was a licensed practical nurse at the Arkansas
Heart Hospital in Little Rock. On the last day of her work at the
hospital which was November 4, 1997, she obtained Elavil, which is an
antidepressant. She also obtained morphine and potassium chloride.
She returned to her residence in Sherwood, and that night at about ten
o'clock, she gave Elavil to her children to make them sleep. After
they fell asleep, she injected Justin with potassium chloride. When
he woke up crying in pain, she injected him with morphine. When that
did not quiet him, she smothered him with a pillow. According to
Riggs, Justin fought back as she smothered him. After her experience
with Justin and the potassium chloride, she decided to smother Shelby
with a pillow, which she did. She told police that Shelby only
fought “a little bit.” Following the murders, she moved the bodies
of the dead children into her bedroom and placed them together in her
bed. She wrote suicide notes to her mother, Carol Thomas; her
sister, Roseanna Pickett; and a former husband, John Riggs. She
next took a considerable dosage of Elavil and injected herself with
potassium chloride. The drugs caused her to pass out on her bedroom
floor. This was estimated to have occurred at approximately
ten-thirty p.m. that same night.
The following day, which was November 5, 1997,
Riggs's mother attempted to locate her and came to her house in
Sherwood at about four o'clock in the afternoon. She found the
bodies of the two children and her unconscious daughter. She called
911, and paramedics arrived on the scene. The paramedics eventually
took Riggs to Baptist Memorial Hospital in North Little Rock at about
five-thirty p.m., where her stomach was pumped and she was stabilized.
Meanwhile, the Sherwood police conducted a search
of Riggs's home, where they found the suicide notes, the bottle of
Elavil, the morphine, potassium chloride, and the used syringes.
Back at the hospital, Riggs's family members had arrived, including
her mother and sisters, and they asked to see her. The Sherwood
Police Department had instructed police officers and hospital staff
not to permit her to talk to or see her family. Shortly after
midnight, Riggs's family retained an attorney to represent her. The
attorney contacted the Sherwood Police Department and told police
officers not to speak to Riggs without his being present.
On the morning of November 6, 1997, Detectives
Charles Jones and Cheryl Williams of the Sherwood Police Department
arrived to take Riggs's statement. At 9:20 a.m., Detective Jones
gave Riggs Miranda warnings and took an eight-minute statement. In
that statement, Riggs admitted to killing her children and explained
the details of the killings, together with her attempted suicide.
Riggs was released from the hospital several hours later and moved to
the Pulaski County Jail. She was charged with two counts of capital
murder. Later, she pled not guilty by reason of mental disease or
Before her trial, Riggs moved to suppress the
statement made to the Sherwood detectives in the hospital on the basis
that her statement was involuntary because of her drugged condition
and because her family had retained an attorney for her. According
to her motion, taking the statement under these conditions violated
her right to due process of law and her right to counsel. The trial
court denied Riggs's motion and found that after listening to a
recording of her statement, there was no indication that she was
hallucinating. The court also found that she was sufficiently
coherent, that her statement was voluntary, and that she had been
accorded her rights under Miranda.
At trial, the jury rejected Riggs's defense of
mental incapacity caused by severe depression, and she was convicted
on both counts of capital murder. During the penalty phase, Riggs
testified and asked that she be sentenced to death. The jury
sentenced her to death on both counts. Riggs initially refused to
appeal, and this court stayed her execution for a determination of
whether she had the capacity to choose between life and death under
Franz v. State, 296 Ark. 181, 754 S.W.2d 839 (1988). See Riggs v.
Humphrey, 334 Ark. 231, 972 S.W.2d 946 (1998) (per curiam ). Before
the trial court could conduct the hearing, Riggs agreed to appeal the
guilt phase of her trial. She instructed her attorney not to appeal
any of the issues related to the penalty phase.
I. Suppression of Her Statement
For her first point, Riggs claims that the trial
court erred in finding that her statement to the detectives was
voluntary and her waiver intelligently made, because she was still
under the influence of the drugs taken during her suicide attempt and
was hallucinating when she made her statement. She further claims
that isolating her from family and retained counsel violated her Fifth
and Sixth Amendment rights.
We initially address whether Riggs was an accused
in custody at the time she gave her statement to the Sherwood police.
The State argues that she was not in custody for purposes of Miranda
protection when she talked to the police detectives. We disagree.
In 1995, we discussed several United States Supreme
Court decisions regarding what constitutes custodial interrogation:
It is settled that the safeguards prescribed by
Miranda become applicable as soon as a suspect's freedom of action is
curtailed to a “ degree associated with formal arrest.” Berkemer v.
McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984),
citing California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77
L.Ed.2d 1275 (1983) (per curiam). Stated another way, the Supreme
Court defined custodial interrogation as meaning the questioning
initiated by law enforcement officers after a person has been taken
into custody or otherwise deprived of action in any significant way.
Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694
(1966); see also Stansbury v. California, 511 U.S. 318, 114 S.Ct.
1526, 128 L.Ed.2d 293 (1994) (per curiam); and Oregon v. Mathiason,
429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977) (per curiam). The
Supreme Court further explicitly recognized that Miranda warnings are
not required simply because the questioning takes place in the station
house, or because the questioned person is one whom the police
suspect. Beheler, 463 U.S. at 1125, 103 S.Ct. 3517. In resolving
the question of whether a suspect was “in custody” at a particular
time, the only relevant inquiry is how a reasonable man in the
suspect's shoes would have understood his situation. The initial
determination of custody depends on the objective circumstances of the
interrogation, not on the subjective views harbored by either the
interrogating officers or the person being interrogated. Stansbury,
114 S.Ct. at 1529.
State v. Spencer, 319 Ark. 454, 457, 892 S.W.2d
484, 485 (1995). In later cases, we have followed the standards set
forth in Spencer. See, e.g., Wofford v. State, 330 Ark. 8, 952
S.W.2d 646 (1997); Solomon v. State, 323 Ark. 178, 913 S.W.2d 288
In the instant case, we have no doubt that viewing
the objective circumstances, a reasonable person in Riggs's shoes
would have believed she was in custody. First, she was under a
police guard at the hospital, she was strapped to her bed in the ICU
unit, and her family was prevented from seeing her.1
Second, the police officers had found her dead children and had
reasonable cause to believe that she killed them based on the suicide
notes found at her house. Third, she was read her Miranda rights by
the Sherwood police detectives, which indicates that she was more than
a mere suspect. We hold that the objective circumstances of the
interrogation support a conclusion that Riggs was in custody.
b. Voluntariness of the Statement.
We have said that statements made while in police
custody are presumed to be involuntary and the burden rests on the
State to prove their voluntariness and a waiver of Miranda rights by a
preponderance of the evidence. See Rychtarik v. State, 334 Ark. 492,
976 S.W.2d 374 (1998); Smith v. State, 334 Ark. 190, 974 S.W.2d 427
(1998). In determining voluntariness, this court looks to whether
the statement and waiver were the result of free and deliberate choice
rather than coercion, intimidation, and deception. Rankin v. State,
338 Ark. 723, 1 S.W.3d 14 (1999); Smith v. State, supra, citing
Colorado v. Spring, 479 U.S. 564, 107 S.Ct. 851, 93 L.Ed.2d 954 (1987)
and Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410
(1986). On appeal, this court makes an independent determination of
the voluntariness of a confession, but in doing so, we review the
totality of the circumstances and will reverse only when the trial
court's finding of voluntariness is clearly against the preponderance
of the evidence. See Jones v. State, 323 Ark. 655, 916 S.W.2d 736
(1996); Trull v. State, 322 Ark. 157, 908 S.W.2d 83 (1995). We
recognize in our determination of whether a trial court's finding is
clearly erroneous that conflicts in testimony are for the trial court
to resolve. See Jones v. State, supra. Where it is apparent from
the record that a statement is not the product of an accused's free
and rational choice and where the undisputed evidence makes clear that
the accused did not want to talk to police detectives, the Supreme
Court has held that due process of law requires that the resulting
statement not be used against the accused. Mincey v. Arizona, 437
U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). Other factors
mentioned in Mincey, in addition to the fact that the accused made
repeated requests that the interrogation stop so he could retain a
lawyer, were that he was weakened by pain and shock, isolated from
family, friends, and legal counsel, and was barely conscious. Under
these circumstances the Court held that Mincey's will was overborne
and the statement could not be used against him.
Riggs argues lack of voluntariness in connection
with her statement but also as concerned her waiver of Miranda rights.
Her primary claim is that her medical condition rendered her
vulnerable and that she was hallucinating and delusional at the time
of the statement. She was, according to her theory of the case,
incapable of choosing to make a voluntary statement when she talked to
the Sherwood detectives the morning of November 6, 1997.
We turn then to the statement made by Riggs to the
police detectives, the accuracy of which was stipulated by the
prosecutor and defense counsel:
detective Jones: This is Detective Jones of the
Sherwood Police Department. Today's date is November 6, 1997. The
time is 9:20 a.m. Present in this inter.. room is Detective Cheryl
Williams and Christina Riggs. Christina, do you understand that I am
tape recording this?
riggs: Yes, I do.
detective Jones: Okay, Christina. I want to
advise you of your rights. You have the right to remain silent.
Anything you say, can and will be used against you in a court of law.
You have the right to talk to a lawyer and have him present with you
while you are being questioned. (Riggs crying) If you cannot afford
to hire a lawyer, one will be appointed to represent you before any
questioning, if you wish. (Riggs crying) You can decide at any time
to exercise these rights and not answer any questions (Riggs crying)
or make any statements. Do you understand your Miranda rights,
Christina? (Riggs crying in the background)
riggs: Yes, I do, sorry.
detective Jones: You do. Okay. Christina, what
we are doing is investigating the death of your two babies. Do you
want to tell us what happened?
riggs: (Crying) I killed them.
detective Jones: What did you say?
riggs: I said ․
detective Jones: Did you say you killed them?
riggs: I'm sorry.
dectective Jones: Christina, how did you go about
riggs: I got some bottles (inaudible) and stuff
from here ․ I need a cigarette (inaudible) ․ Darvocet.
detective Jones: Are you saying that you got some
medicine from the hospital?
riggs: (no verbal response)
detective Jones: Christina, how did you do it?
Did you give them an injection? Did you give them a shot?
riggs: I tried to ․ and ․ I did it with Justin,
because I figured with him being the oldest one that he would give me
detective Jones: Uh-huh. (yes)
riggs: So, I tried it with him and I thought it
would just stop his heart. But it hurt. Oh, he said it hurt ․
detective Jones: Uh-huh. (yes)
riggs: It didn't work, he just kept calling,
“Momma! Momma! Momma!” I just figured it was too late now because
I had no place to turn back to. I cleaned out my checking account
and gave my mother all the money I had. (Crying)
detective Jones: Christina, why did you do this?
riggs: Because I wanted to die. But I didn't
want to die and leave my kids behind or for them to be a burden to
somebody else. I didn't want them to think I didn't love them and I
didn't want them to grow up separately because they have two different
Daddy's. And I knew if I passed away they would be fighting my
Mother for custody and I didn't want that for nobody.
detective Jones: You felt like you were doing it
for the kids' sake?
riggs: In a way, yeah. (Inaudible) ․ my piece of
detective Jones: Christina, did you really want to
detective Jones: And you felt it would be better
if your children just die with you and ․ was the children already dead
before you took your medicine?
detective Jones: How long had they been dead
before you took your medicine?
riggs: About twenty minutes.
detective Jones: About twenty minutes?
riggs: That's because I drank and got up and
smoked a cigarette and got back and sit for a minute and (inaudible) I
was like, “Okay, I'm going to do it now. I can't turn back now
because you've already killed Justin.” And ․ so I did it.
detective Jones: What time did you give them the
medicine? Do you remember?
riggs: (inaudible) Justin about 10:15 or 10:30.
detective Jones: 10:15 or 10:30 in the morning?
riggs: No, in the evening.
detective Jones: Oh, in the evening?
riggs: Last night.
detective Jones: Okay.
riggs: Then I smoked another cigarette and waited
․ and suffocated Shelby.
detective Jones: You suffocated Shelby?
detective Jones: What did ․ how did you suffocate
riggs: I put a pillow over her head.
detective Jones: Okay, Did you ․
detective Jones: Had you given her any medicine at
all, or ․ any of the Morphine or the Potassium Chloride?
riggs: I slipped them ․ I made them drink half of
an Elavil because I figured that would make them sleep a little bit
better so that it wouldn't wake them (inaudible).
detective Jones: So, Shelby, Shelley, you killed
her with a pillow. You suffocated her. And what about the little
boy. How did you do him?
riggs: I gave him the medicine and when it didn't
detective Jones: You suffocated him too?
riggs: (Crying) yes.
detective Jones: With a pillow?
detective Jones: Were they fighting while you were
suffocated (sic ) them?
riggs: Justin did. Shelby a little bit but not
detective Jones: When did you decide to do this,
Christina? On what day did you decide to do this?
riggs: Uh ․ the best I remember it was Sunday
night or Saturday night, because we was out talking and this and that
and the other ․ and they caught me.
detective Jones: Who caught you?
riggs: The Sherwood (inaudible) got me depressed.
I was thinking about what was going on in my life and that things
aren't always working for me and (inaudible).
detective Jones: When did you get those drugs from
detective Jones: Uh-huh? (Yes)
detective Jones: Yesterday?
riggs: (No verbal response)
detective Jones: You mean the day that you killed
them? Is that the day that you got the drugs? The last was it ․
riggs: (Inaudible) Seventh street right
detective Jones: Was it the last day that you
worked at the hospital or the day before that?
riggs: I think ․
detective Jones: When you got ․
riggs: I got the drugs and I gave them to my kids.
That's the only drugs that I had in my hand. And I know that there
was three Valiums in a vial in there, but there wasn't enough to even
cover the jar up (inaudible ) put it in my pocket and bring them home.
detective Jones: Uh-huh. (yes)
riggs: And I know I should have thought better ․
had somebody rinsing with me, but ․ they were just what came home in
detective Jones: Did you know what you were going
to do when you took the drugs from the hospital? Did you have
intentions of giving them to your children? And how many days did
you think about this before you killed your children?
riggs: About three weeks. Two weeks.
detective Jones: Two or three weeks. In other
words, you've been thinking about doing this for the last two or three
riggs: (No verbal response)
detective Jones: What made you decide to just go
ahead and do it?
riggs: I just can't take it no more.
detective Jones: You couldn't take it any more.
riggs: I felt like I was out of control.
detective Jones: Did you just feel like your life
was in a mess?
riggs: (No verbal response)
detective Jones: Had you talked to anybody about
this? Your Mom or anybody?
riggs: I've tried to talk to people about what I
feel and what I think and they were just like, “I don't have time
right now. We'll do it some other time.” So, I just got to where I
don't care any more. I (inaudible) but they can't give me no help.
detective Jones: So you just felt like nobody was
listening to you?
detective Jones: Okay, Christina ․
riggs: Answer me something. Did you come down
the escalators by yourself?
detective Jones: Uh, did we come down the
escalator by ourself?
riggs: Your Mother. When ․ she came in town.
detective Jones: Your Mother?
riggs: It seems like I keep seeing some old people
getting on the elevators ․ sitting down away from the (inaudible).
She didn't like what was on it, so she put (inaudible ) just like your
detective Jones: Christina, do you have anything
more to say about your babies or anything?
riggs: I wish I hadn't done it now.
detective Jones: Okay. Detective Williams, do you
have anything to add to this interview?
detective Williams: No.
detective Jones: This is Detective Jones, the time
is 9:28 a.m. This concludes this interview.
The trial court had the recorded statement and
transcribed text before it at the suppression hearing. The court
also had the testimony of Dr. Joe Buford, who was the emergency room
physician late afternoon on November 5, 1997, when Riggs was admitted
to Baptist Memorial Hospital. He testified that she was presented as
a “probable overdose,” and because of this, her stomach was pumped,
and she was given charcoal to absorb any of the remaining drugs in her
stomach. Dr. Buford testified that he saw Riggs on the morning of
November 6, 1997, and at that time, she was alert and oriented and her
vital signs were stable. This was before Riggs gave her statement.
He added that she responded appropriately to his questions, and that
she did not appear to be incoherent or suffering from hallucinations
at that time.
Karen Stiles, a registered nurse in the intensive
care unit at the hospital, testified that she first came into contact
with Riggs on the evening of November 5, 1997. Ms. Stiles stated
that at that time, Riggs was combative and incoherent. Ms. Stiles
testified that the next morning, Riggs was calm, and she answered
questions appropriately. Ms. Stiles referred to her assessment notes
and stated that at seven-thirty or eight o'clock in the morning, Riggs
was awake, alert, and oriented. She also testified that according to
her notes, Riggs was speaking rapidly and was hard to understand, but
that she could understand her. Ms. Stiles then referred to the
assessment she did of Riggs using the Glascow Coma Scale. According
to Ms. Stiles, the scale is used to determine a patient's level of
consciousness. Ms. Stiles testified that at eight o'clock in the
morning on November 6, 1997, she gave Riggs a fifteen, the highest
score she could receive on the scale. On cross-examination, Ms.
Stiles noted that Riggs signed the discharge orders from the physician
but that her signature was illegible.
Detective Jones and Detective Williams testified at
the suppression hearing that Riggs made no attempt to stop the
statement and that they in no way forced her to give the statement.
Detective James Harper of the Sherwood Police Department testified
that he sat in Riggs's hospital room the night of November 5, 1997,
and the early morning of November 6, 1997. At one point he overheard
her say: “I had to do it so I wouldn't leave them behind.”
To counter this evidence, Riggs called several
witnesses at the suppression hearing. Another emergency room
physician, Dr. Jim Rice, testified that Riggs was “combative at times”
and “just incoherent and not really making any sense,” when she was
brought into the emergency room on November 5, 1997. Julia Brown, a
nurse, stated that Riggs was confused as late as four o'clock in the
morning of November 6, 1997, but she was not surprised that the nurse
on the next shift four hours later found her to be alert, oriented,
and responsive because it is not unusual for an overdose victim “to
Riggs's family members also testified at the
suppression hearing. Her mother, Carol Thomas, told the court that
Riggs was confused the day after the statement was given about whether
Shelby was alive. She “hallucinated” about a conversation with her
that did not happen. Riggs's sister, Roseanna Pickett, testified
that the day after the statement, Riggs was incoherent and thought she
was playing with Shelby. Her aunt, Mary Willis, testified that the
next day, Riggs was “seeing things,” including her dead children and a
piece of gum. Another sister, Elizabeth Nottingham, testified that
the following day, Riggs was groggy, not making sense, and “
describing hallucinations.” There is, too, the fact that at the end
of her questioning Riggs made reference to the detective's mother
descending on an escalator and old people getting on elevators which
had no bearing on the subject matter of the interview and was arcane
The trial court was confronted with all of this
testimony and the statement itself and found the statement to be
voluntary and not the product of delusion or hallucinations. It is
clear to us that the testimony was in conflict, and we have no doubt
that Riggs was somewhat impaired at the time she talked to police
detectives because of the drug overdose. Yet, we have resolutely
held that conflicts in the testimony and the extent of her impairment
are for the trial court to resolve. See, e.g., Jones v. State,
supra; Trull v. State, supra. We also defer to the trial court in
its determination of credibility of witnesses in suppression matters.
See Rankin v. State, supra. In the instant case, according to the
testimony of Dr. Buford and Ms. Stiles, who were in contact with Riggs
the morning of November 6, 1997, Riggs was alert and responsive before
she gave her statement. The statement itself further portrays an
ability to answer questions and describe events which physical
evidence already in the hands of police confirmed. Rational response
to questioning is a legitimate factor for the trial court to consider.
See Midgett v. State, 316 Ark. 553, 873 S.W.2d 165 (1994);
McDougald v. State, 295 Ark. 276, 748 S.W.2d 340 (1988). And unlike
the facts in Mincey v. Arizona, supra, Riggs never requested that the
interview stop so that she could retain counsel. Under these
circumstances, we hold that the trial court did not clearly err in
finding that her statement was voluntarily given. See Jones v.
Having held as we do, there is one aspect of the
trial court's ruling following the suppression hearing with which we
disagree. The trial court refers to the mental evaluation of Riggs
by Dr. John Anderson, a psychologist with the Arkansas Division of
Mental Health Sciences, who concluded that Riggs was able to
appreciate the criminality of her conduct at the time of the murders
on November 4, 1997. The trial court stated that it “leaned on” the
evaluation in finding Riggs mentally competent to give her statement
because the murders and police interview were close in time. That
part of the ruling discounts the drug overdose and vulnerability of
Riggs to having her will overborne, all of which forms the cornerstone
of her voluntariness argument.
The trial court went forward, however, and made the
Furthermore, the Court, in listening to the tape
today, doesn't have any indication that there is hallucination during
the time of questioning. If so, it's certainly not evident from the
tape. And I believe that the statement made by the defendant is
sufficiently coherent as to establish the fact that it is a voluntary
statement. Her rights were accorded. There's no indication that
there are any constitutional violations. There is no indication of
any false promises made by police officers. No denial. The
statement was given only after the Miranda rights were given.
And, looking at all the totality of the
circumstances, the Court is of the opinion that this statement should
not be suppressed. So, the defendant's motion to that effect is
It is this finding by the trial court which we hold
is not clearly erroneous.
c. Legal Counsel
Riggs next contends that her hospital statement was
involuntary because police officers isolated her from her family and
withheld information that her family had retained legal counsel for
her. Counsel had been retained before she gave her statement to the
two detectives the morning of November 6, 1997.
There was no reversible error in this regard. The
United States Supreme Court has made it clear that failure by police
officers to inform an accused that counsel has been retained by the
accused's family is not enough to invalidate the confession. See
Moran v. Burbine, supra. In Moran, the accused's sister arranged
legal counsel for her brother. The lawyer called the police
department and stated that she would act as the accused's counsel,
should the police choose to question him. The lawyer was informed
that the accused would not be questioned until the next day. Despite
that information, less than an hour later, police officers began a
series of interviews where the accused confessed to committing the
murder in question. The Court held that the police officers' failure
to inform the accused of the attorney's telephone call did not deprive
him of information essential to his ability to knowingly waive his
Fifth Amendment rights to remain silent or Sixth Amendment right to
counsel. The Court said:
Events occurring outside of the presence of the
suspect and entirely unknown to him surely can have no bearing on the
capacity to comprehend and knowingly relinquish a constitutional
right․ No doubt the additional information would have been useful to
respondent; perhaps even it might have affected his decision to
confess. But we have never read the Constitution to require that the
police supply a suspect with a flow of information to help him
calibrate his self-interest in deciding whether to speak or stand by
475 U.S. at 422, 106 S.Ct. 1135. The Court
continued: “Nor do we believe that the level of the police's
culpability in failing to inform respondent of the telephone call has
any bearing on the validity of the waivers.” 475 U.S. at 423, 106
Hence, under Moran, even if the Sherwood Police
Department deliberately withheld information from Riggs regarding
retention of an attorney, that would not invalidate her waiver of her
Fifth or Sixth Amendment rights. Those rights are personal to the
accused, and she clearly waived them.
d. Harmless Error.
There is an alternative basis for our affirmance of
the trial court's admission of the statement and that is harmless
error beyond a reasonable doubt. Here, we are concerned only with
the verdict of guilty for capital murder, because Riggs did not
contest her death sentence and, indeed, invited it.
To conclude that a constitutional error is harmless
and does not mandate reversal, this court must conclude beyond a
reasonable doubt that the error did not contribute to the verdict.
See Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999), Schalski v.
State, 322 Ark. 63, 907 S.W.2d 693 (1995); Allen v. State, 310 Ark.
384, 838 S.W.2d 346 (1992); Vann v. State, 309 Ark. 303, 831 S.W.2d
126 (1992); see also Chapman v. California, 386 U.S. 18, 87 S.Ct.
824, 17 L.Ed.2d 705 (1967). The United States Supreme Court has held
that the admission of an “involuntary confession” is subject to a
harmless error analysis. See Arizona v. Fulminante, 499 U.S. 279,
111 S.Ct. 1246, 113 L.Ed.2d 302(1991); see also Criddle v. State, 338
Ark. 744, 1 S.W.3d 436 (1999); Martin v. State, 328 Ark. 420, 944
S.W.2d 512 (1997); rev'd on other grounds, State v. Bell, 329 Ark.
422, 948 S.W.2d 557 (1997); Isbell v. State, 326 Ark. 17, 931 S.W.2d
In the case before us, the jury heard abundant
evidence that Riggs committed the murders. The question then for
this court to determine is if we excise from the evidence Riggs's
statement given to the Sherwood police detectives, does the remaining
evidence show beyond a reasonable doubt that she committed the
murders? See Chapman v. California, supra. We conclude that it
The testimony from Riggs's suicide letters and
witnesses for both the State and defense is rife with statements that
Riggs admitted she killed her children. What follows are examples of
this cumulative testimony:
I. Riggs's letter to Carol Thomas saying she had
killed the children.
II. Riggs's letter to John Riggs saying she had
taken the lives of the children.
III. Riggs's statement overheard by nurse Julia
Brown: “I killed my kids.”
IV. Riggs's telephone call to David McCombs where
she described injecting her boy who then cried and smothering her
daughter with a pillow.
V. Testimony of defense witness, Dr. Bradley Diner,
a psychiatrist, that Riggs described how she injected her son with
potassium chloride and morphine and suffocated her daughter.
VI. Testimony of defense witness, Dr. James
Moneypenney, a psychologist, that Riggs told him that she killed her
children by giving them Elavil and then smothering them with a pillow.
He further testified about Riggs planning the murders forty-eight
hours before hand and getting the drugs, pulling money out of her
checking account for her mother, and writing suicide letters.
VII. Testimony of Riggs's sister, Elizabeth
Nottingham, that Riggs told her she was sorry for what she did.
VIII. Testimony of Carol Thomas that Riggs told her
she injected Justin who cried, “It hurts. It hurts.” She couldn't
do that to Shelby, she said, so she smothered her.
IX. State witness Dr. John Anderson, a
psychologist, who stated that Riggs told him she killed her children
and told him how she did it.
X. State witness Dr. Wendall Hall, a psychiatrist,
who testified Riggs told him she killed her children immediately
before trying to kill herself and that she had planned all this in
There was, in addition, the physical evidence found
by police officers at Riggs's residence in Sherwood on November 5,
1997, which included the bottle of Elavil, morphine, potassium
chloride, the used syringes, the two deceased children, and Riggs
collapsed at the foot of the bed in an unconscious state. There was
also the testimony of the medical examiner that there was evidence
that the two children had been suffocated.
We conclude that this cumulative evidence of
Riggs's confessed guilt and physical evidence established her guilt
for capital murder beyond a reasonable doubt even without her
statement to the Sherwood police detectives.
II. Jury Instructions on Intent
For her second point, Riggs contends that the jury
instruction given on the affirmative defense of mental disease or
defect was misleading because it instructs the jury not to consider
the evidence of her mental defect or disease until after it determines
that the State has met its burden of proving criminal intent beyond a
reasonable doubt. She urges that evidence of mental disease or
defect should be considered by the jury at the time it considers
criminal intent as an element of the crime of murder. She concedes
that this court has already decided this issue unfavorably to her in
Westbrook v. State, 274 Ark. 309, 624 S.W.2d 433 (1981), and in
Robinson v. State, 269 Ark. 90, 598 S.W.2d 421 (1980). She argues,
nonetheless, that this court should overrule those decisions. She
points to approximately eleven other jurisdictions that require juries
to be instructed that evidence of mental disease or defect may be
considered by the jury at the time of determining the requisite intent
to commit the murder and argues that Arkansas should join those
jurisdictions. Her final claim is that with the correct instruction,
the jury could very well have convicted her of first- or second-degree
murder or even manslaughter, because there was abundant evidence of
her depression which drove her to do what she did.
We decline to overrule our existing precedent on
this point. First, Riggs has offered no persuasive authority for why
our precedent should be overturned. See McGhee v. State, 334 Ark.
543, 975 S.W.2d 834 (1998); Sanders v. County of Sebastian, 324 Ark.
433, 922 S.W.2d 334 (1996). Second, we do not agree that the
instructions given were violative of due process. The instructions
read by the trial court include instructions on the law relating to
capital murder, first-degree murder, second-degree murder, and
manslaughter. Each instruction included the level of criminal intent
necessary to commit those crimes. The instructions also advised that
the State must prove the elements of the crimes beyond a reasonable
doubt. The jury was then instructed that Riggs was not responsible
for her crime if, as a result of mental disease or defect, she lacked
the capacity to appreciate the criminality of her conduct or to
conform it to the requirements of law. To be successful, Riggs must
prove this affirmative defense by a preponderance of the evidence.
But the trial court reiterated at this point of its instructions that
it was the State that had the burden of proving criminal intent for
the offense beyond a reasonable doubt.
Riggs would have preferred that the trial court
give her two non-AMCI proffered instructions which read:
Evidence that the defendant suffered from a mental
disease or defect may be considered by you along with all the other
facts and circumstances of the case in determining whether the
defendant had the required mental state or intent for the crime
charged or a lesser offense.
Evidence that the defendant suffered from a mental
disease or defect is admissible to prove whether he had the kind of
culpable mental state required for commission of the offense charged.
But, again, giving these instructions would have
simply run counter to our existing caselaw.
We conclude that the instructions which, first,
advised the jury that the State had the burden of proving every
element of the criminal offense (including all elements of the lesser
included offenses) beyond a reasonable doubt and, second, stated that
she could prove her defense that she suffered from mental disease or
defect by a preponderance of the evidence did not prejudice Riggs or
deprive her of due process of law. We affirm the trial court's
ruling in this regard.
III. Prejudicial Opening Statement.
Riggs next argues that the following statement by
the prosecutor as part of her opening statement to the jury was
prejudicial and unsupported by the evidence:
Ladies and gentlemen, I want you to go somewhere
with me. I want you to go with me to the residence at 8015 Bronco
Lane, Sherwood, Arkansas. As we walk up the sidewalk to the
residence, we go to the front door. And, as we enter the front door,
we hear the laughter of two small children. We open the door and
they're not there in the front room, so we follow the laughter down a
mr. Hall: Your Honor, this is argument. Talking
about the laughter of two dead children.
the Court: This is opening statements. Overrule
Riggs submits that this dramatic statement had only
one purpose-to prejudice the jury against her. She also maintains
that the statement had no basis in fact and no evidence was ever
presented to support it. Because the prosecutor injected raw emotion
into the trial, the trial court abused its discretion in overruling
Riggs's objection and allowing this kind of argument.
While theatrical, we do not consider the
prosecutor's opening statement of such moment as to warrant a new
trial. We decline to reverse the trial court's exercise of
discretion on this point. See, e.g., Rank v. State, 318 Ark. 109,
883 S.W.2d 843 (1994); Dixon v. State, 310 Ark. 460, 839 S.W.2d 173
IV. Photographs of the Victims.
For her last point, Riggs points to four
photographs and argues that their admission into evidence was
inflammatory and prejudicial. She first notes that she admitted from
the beginning that she was responsible for the deaths of her children
and how she did it.3
Thus, according to Riggs, the question for the jury to decide was
simply whether her severely depressed condition was sufficient to
establish either the affirmative defense of not guilty by reason of
mental disease or defect or some reduced degree of homicide.
Riggs first objects to Photographs 7 and 10
(Photograph 7 showed the two dead children on Riggs's bed and
Photograph 10 showed a needle mark on Justin's neck) as redundant and
inflammatory and emphasizes that the trial court did not balance the
prejudice against the relevance of these pictures. She further
argues that it was error to admit two autopsy photos of the children
(Photographs 32 and 34), because cause of death was not an issue in
the case. She adds that the trial court did not apply the balancing
test to these photos either and never made a finding that their
probative value exceeded any prejudice. Riggs concludes with a
general argument that because emotions were so high in this case, the
photographs only served to inflame the jury and unfairly prejudice her
The admission of photographs is a matter left to
the sound discretion of the trial court. See, e.g., Greene v. State,
335 Ark. 1, 977 S.W.2d 192 (1998). When photographs are helpful to
explain testimony, they are ordinarily admissible. See, e.g.,
Williams v. State, 322 Ark. 38, 907 S.W.2d 120 (1995). Absent an
abuse of discretion, this court will not reverse a trial court for
admitting photographs into evidence. Baker v. State, 334 Ark. 330,
974 S.W.2d 474 (1998).
We conclude that there was no abuse of discretion
in allowing these photographs into evidence. The two autopsy
photographs (Photographs 32 and 34) assisted the medical examiner in
explaining cause of death. Photograph 10 was a closeup of the
puncture wound made by the needle in Justin's neck, and Photograph 7
was a closeup picture of the two victims in Riggs's bed taken at a
different angle. The two photographs could have aided the jury in
understanding the crime scene and the condition of Justin's body when
police officers found the victims.
Riggs, as a final point, focuses on the fact that
the trial court never did a probative-prejudicial weighing with
respect to the photographs. Riggs, however, never asked the trial
court to do this. Again, we will not reverse a trial court for
failing to do what it was never asked to do. Gooden v. State, 321
Ark. 340, 902 S.W.2d 226 (1995). It seems to us that it was
incumbent on defense counsel to request such a weighing if it
considered such to be important or legally required. There was no
abuse of discretion on this point.
V. Rule 4-3(h) Review.
Though not raised by Riggs, the State brings to
this court's attention the point that Riggs sought the death penalty
in the penalty phase of her trial and did not contest her death
sentence on appeal. Following the penalty phase, the jury
unanimously determined, as an aggravating circumstance, that Riggs had
caused the death of more than one person in the same criminal episode.
With regard to mitigating circumstances, the jury unanimously found
that Riggs had no significant history of criminal activity and that
she has abilities that would make her a productive member of society,
even in prison. The jury also determined that there was some
evidence presented to support the fact that the murders were committed
while Riggs was under extreme mental or emotional disturbance, but
that the evidence was insufficient to prove a mitigating circumstance.
The jury then concluded that the aggravating circumstances
outweighed the mitigating circumstances and that this justified death
by lethal injection. Thus, it is clear that the jury conducted the
appropriate weighing of aggravating and mitigating circumstances and
made its conclusion, as required by Ark.Code Ann. § 5-4-603
Riggs initially waived any appeal of her judgment
of conviction, and we ordered that a mental determination pursuant to
Franz v. State, supra, be made of her ability to choose death. See
Riggs v. Humphrey, supra.
After our order, Riggs decided to appeal her
conviction on two counts of capital murder but declined to raise
issues related to her death sentence. The question, then, is whether
her decision on this point constitutes a partial waiver of appeal and
a choice of death, which necessitates a Franz hearing.
We think not. Riggs has mounted a significant
appeal relating to the guilt phase of her trial. Thus, she has
appealed the judgment against her, although she chose not to raise
issues associated with her death sentence, just as she did not at the
We are further mindful of the fact that under Ark.
R.Crim. P. 37.5, as we have interpreted it, Riggs will be entitled to
a Franz hearing should she waive her right to postconviction relief.
See Willett v. State, 337 Ark. 457, 989 S.W.2d 508 (1999) (per
curiam ). Thus, if Riggs decides not to pursue her postconviction
remedies, as her counsel stated at oral argument, she will be afforded
a Franz hearing. In sum, we do not believe that a Franz hearing is
warranted at this time under these facts.
The record has been reviewed for other reversible
error pursuant to Supreme Court Rule 4-3(h), and none has been found.
As the majority points out, Ms. Riggs was held in
custody at the hospital from the time she was admitted until the time
she gave the statement. During this time, she was not permitted to
visit with her family, and her attorney was denied access to her in
the hospital. Both her family and her attorney notified the Sherwood
Police that she was represented by counsel, and the police recognized
this. Notwithstanding the assurances from two officers that they
would not question Ms. Riggs, two other officers reported to duty and
proceeded to interrogate her. Ms. Riggs' statement was delusional
and incoherent, and was terminated only when she asked the police
officer if his mother had trouble with the escalator. There was no
escalator in the hospital.
Under these circumstances, I differ with the
majority on the question of whether her statement was given
voluntarily, intelligently, or knowingly. For that reason, I
was some testimony that Riggs may not have been “in restraints” at the
time of her statement, but the State conceded she was at oral
argument. Restraints were imposed because she was combative when
first admitted to the hospital.
2. In his
brief on appeal and during oral argument, counsel for Riggs argued
that the testimony of a psychiatrist, Dr. Robert L. Rice, who saw
Riggs at 9:30 a.m. on November 6, 1997, showed that at that time she
had a “cloudiness of sensorium” and was “a little bit cloudy” and like
“someone waking up from anesthesia.” Dr. Robert Rice did not testify
at the suppression hearing but only at trial. Thus, his testimony
was not before the trial court for suppression purposes. Even had it
been, we do not view it to be of sufficient impact to render the trial
court's finding on voluntariness clearly erroneous.
admission in her brief lends weight to a conclusion that any error
associated with her hospital statement was harmless beyond a
ROBERT L. BROWN, Justice.
THORNTON, J., dissents.