Willis v. State

WENDELL L. Griffen, Judge, dissenting. I respectfully dissent from the decision reached by the majority and would hold that the trial judge erred when he held that Willis had (1) committed domestic battery, and (2) that the supposed violation was inexcusable. A fair-minded inquiry into whether the appellant committed domestic battery under any analysis must include a review of the evidence. All of the eye-witness accounts of the incident that triggered the probation revocation petition show that India Ledbetter threatened to kill appellant and began hitting him. After she paid a greater price than she apparently expected, she summoned the police and pursued the prosecution that resulted in appellant’s sentence.

From the earliest times, human moral and legal codes have recognized the authority of parent figures to administer discipline in their homes. Moreover, civilized societies have uniformly upheld the view that a child who strikes a parent commits a serious violation of social order. The Code of Hammurabi, which continued in use for centuries and exerted considerable influence on Arabic and Islamic law, prescribed that the hands would be cut off a son who struck his father. The Second Book of Moses commands that parents are to be honored (Exodus 20:12). Under Mosaic law, to strike one’s father or mother was a crime punishable by death. (Exodus 21:15). It was a crime, punishable by death, to even curse a parent (.Exodus 21:17). The Greek scholar and philosopher Plato affirmed in The Republic that an elder is duty bound to rule and chastise a younger, and that the younger will not “strike or do any other violence to an elder, nor will he slight him in any way. For there are two guardians, shame and fear, mighty to prevent him: shame, which makes men refrain from laying hands on those who are to them in the relation of parents; fear, that the injured one will be succored by the ones who are his brothers, sons, fathers.”

Until this decision, I have found nothing in the laws of Arkansas, the United States, or in the legal or moral codes of any other society known to human history that supports the notion that a child may threaten to kill and then strike a parent figure with impunity. While modern society properly does not impose the death penalty for such conduct the way that ancient societies did, the whole body of law known to humanity offers no support whatsoever for the preposterous idea that a parent figure is obligated to retreat from such a rebellious child under any circumstances. But today, the majority upholds a decision by the trial court that adjudges this appellant guilty of inexcusably violating the conditions of his probation because he did not “run from” such an attack by his stepdaughter in his own home.

Although appellant’s counsel raises several points for reversal, the only one with merit concerns whether the trial court clearly erred when it revoked appellant’s 1997 probationary sentence following his guilty plea to third-degree battery. In 1999, new charges were filed against appellant for first-degree domestic battery arising from an altercation between appellant and India Ledbetter, his seventeen-year-old stepdaughter. The State also filed a petition for revocation. As the majority opinion indicates, the parties stipulated that the evidence in the domestic battery jury trial would constitute the record for the revocation hearing. After the jury deadlocked on the domestic battery charge in what was reported by the prosecution to be an eleven to one split for acquittal, the State elected to nolle prosequi and dismiss that charge. Nevertheless, the trial judge found that appellant had violated the conditions of his probation, specifically, the requirement that appellant, “obey all Federal and State laws, Local ordinances, and Court orders.”

Appellant is married to Natalie Willis, the mother of India Ledbetter. Ledbetter was visiting the residence of her mother and appellant when the altercation took place. According to the testimony at trial, appellant and Willis went out to visit another relative and returned home to find dirty dishes that Ledbetter left in the kitchen sink. Ledbetter’s mother told her to wash the dishes; however, Ledbetter refused and tardy said she would wash the dishes the next day. When her brother (Cory Williams) commented to his mother that he was required to perform tasks immediately, appellant told Ledbetter that she needed to wash the dishes. Ledbetter then began arguing with appellant. Appellant walked away from Ledbetter and went into another room, but Ledbetter followed him and continued to argue. Ledbetter’s mother (Willis) described what happened next:

I went in the den and told them they needed to stop. They kept on arguing. I walked outside, when I came back in they were still arguing. They were up close to each other and India started pushing [appellant]. She first had threatened him. She told him, ‘I will kill you’ and then she pushed him. I saw him put his hands up and step back and told her not to push him anymore. She then said she’d push him again and she did. They grabbed each other. He grabbed her hair. She grabbed his shirt and I tried to get in the middle to pull them apart. I guess we lost our balance. We all hit the floor and were steady wrestling and I was trying to get them apart. I finally told [appellant] to let her hair go and told India to let his shirt go. They finally let each other go. Prior to the time she made the threat to kill him, she had pushed him and he had not put his hands on her. He did not ever purposely strike her or try to hit her during the little tussling. ... He did not push her to the ground and get over and start pulling her hair. That happened when I tried to pull them apart and we all fell to the ground at the same time. . . .

Willis testified that after appellant and Ledbetter stopped wrestling, appellant tossed a beverage in Ledbetter’s face while Ledbetter was using the phone.

Cory Williams, Ledbetter’s twelve-year-old brother and appellant’s stepson, also witnessed the incident between appellant and Ledbetter. Williams testified that Ledbetter refused their mother’s directive to wash the dishes, began arguing with their mother about it, and then began arguing with appellant after he told her to wash the dishes. Williams also testified that Ledbetter pushed appellant, threatened to kill him, and that appellant splashed a drink in Led-better’s face when she began phoning the police.

Ledbetter admitted in her testimony that she threatened appellant after he told her to wash the dishes, that she, “was hollering and fussing when I said it,” and that, “I fell to the floor, and I brought him down with me, and all I know is we were tussling and fighting.” Ledbetter testified that although her eyes were closed, “I was trying to fight him ... I cannot tell you exactly where he was hitting me. He did not hit me in the face. . . . When I fell on the ground, he had my braids in his hand, and he was pulling my braids. 1 He was just pulling them. I was on the ground when he pulled my braids out.” At another point in her testimony, Ledbetter testified, “he did not hit me in the face the first time we were fighting, but he hit me in the face the second time.” Although the evidence demonstrates that an altercation took place between Led-better and appellant, both Willis (her mother) and Williams (her brother) contradicted Ledbetter’s testimony that appellant struck her in the face or caused the bruises and lacerations she described during her testimony.

Arkansas Code Annotated section 5-4-309 (d) (1987) provides that if the trial court finds by a preponderance of the evidence that a defendant has inexcusably failed to comply with a condition of his suspension or probation, it may revoke the suspension or probation at any time prior to the expiration of the period of suspension or probation. On appellate review, we do not reverse the trial court’s decision regarding probation revocation unless it is clearly against the preponderance of the evidence. We have previously reversed a trial court decision revoking probation for failure to pay court-ordered fees and fines upon a holding that the decision was clearly against the preponderance of the evidence when there was proof that the defendant had attempted to make payments and had attempted to explain his inability to make payments as ordered. See Baldridge v. State, 31 Ark. App. 114 , 789 S.W 735 (1990).

In the present case, the trial court’s comments, after observing that appellant had two prior convictions for battery, are quite revealing:

Well, I’ll tell you what disturbs me in this case, is the fact that, you know, here’s a gentleman that has these prior convictions, [that] are fighting, you know, with family members and, I would think, you know, with that hanging over his head and three years’ probation and facing the penitentiary, that he would run like the dickens from another family fight. I mean, plus, he supposedly has gone to domestic abuse counseling and learned not to get into fights with family . . . and a seventeen-year-old girl pushes him and suddenly, they’re in a brew-ha here because he just didn’t back off and say, I’m not doing this or I’m going out and have a couple of iced tea or something and get out of here because I’m not going to get into a fight with you, because I know better than that.

Nothing supports the conclusion that appellant inexcusably failed to comply with the terms of his probation. While it is true that the State can establish a probation violation by evidence that is not sufficient to constitute a criminal conviction, Arkansas Code Annotated section 5-4-309(d) (Supp. 1999) clearly requires that the State prove that the defendant’s failure to comply with probation terms is inexcusable. As noted by our supreme court in the recent decision of Barbee v. State, 346 Ark. 185 , 56 S.W.3d 370 (2001), the term inexcusable means an inability to excuse or justify. The appellant in Barbee relied on information provided by the State that his driver’s license was not suspended. After noting that Barbee complied with every other term of his probation and was observed by the trial court to be “tremendously rehabilitated,” our supreme court reversed and remanded the case to the trial court. In the present case, I cannot agree that appellant’s failure to comply was inexcusable in the face of compelling evidence that appellant was involved in an altercation after being baited, threatened, and assaulted in his own residence. His actions simply do not rise to the level of being without excuse, justification, or pardon.

Like the trial court and majority, I am opposed to domestic violence. However, I find nothing in law or logic that requires an adult to retreat in his own home from a rebellious, threatening, and abusive teenager. Here, all the proof shows that Ledbetter picked a fight with an adult in the adult’s house. I refuse to dignify her insolence and disrespect by supporting a decision to send appellant to the penitentiary for refusing to run from her. The State, trial court, and majority have cited no rule of law in Arkansas or anywhere else that obligates a parental figure to retreat from an assault by a rebellious child. That overwhelming body of human experience is not nullified in the case of a person on probation. Therefore, I would reverse the trial court, and respectfully dissent from the majority opinion.

The braids that Ledbetter testified about were apparently woven into her hair, not pulled from her scalp.