Phillips Black

Billy THESSING

Current Proceedings: State PCR pending

Case Number: 60CR-03-1363

Judge:

Demographic Information: White Male

Current Counsel:

Legal Status: 4/18/17- case reassigned to another divison (7th Division) via automated recusal method. Before the 2007 PCR petition, new counsel filed motions for an investigator and mitigation specialist as well as psychiatrist, which were granted along with an order to release adoption records.

Significant Legal Issues:

• Incompetent at trial

• Other claims brought up:

  • Voir Dire: claims judge denied him DP when denied defense counsel right to question prospective jurors after prosecution challenged them for cause on whether they could impose the death penalty under certain circumstances. (held that circuit judge did not clearly abuse his discretion).

  • Evidence of his use of crack cocaine was admissible as part of res gestae.

  • Prosecutor's argument in closing of his adjudged mental competence referred to a matter outside of the record before the jury. (held claim that he was prejudiced in the penalty phase by this closing argument in the guilt phase was not preserved for review as it was not made to Circuit judge; however, court looks to merits to determine if trial court failed by not intervening w/o objection to correct a serious error by admonition or declaring a mistrial--see next point below)

  • Court agrees that Thessing has raised an allegation of serious error, which the court must review; however, found that no reversible error occurred.

  • Jury verdict form regarding mitigating factors imposed on him the burden of proving they "probably existed" - State concedes model verdict form does not follow statutes at issue. Court agrees that instruction is worded differently from statute and this may be an issue that this court's committee on model jury instructions should address; however, any difference actually benefitted Thessing (pg. 406)

  • Judge failed to give jury consistent instructions regarding at what point in time in his life the jury should have found that mitigating circumstances existed (Part A and C say to evaluate mitigating circumstances as of "the time of the murder") (held: discrepancy did not ruse to the level of serious error or a matter essential for the jury's consideration)

Last Judicial Decision Related to Conviction or Sentence: Thessing v. State, 230 S.W.3d 526 (2006) (affirming conviction on direct appeal), cert denied, 127 S.Ct. 193 (2006) (Mem).

Reported Opinions:

• Thessing v. State, 230 S.W.3d 526, 530–31 (2006).

• Thessing v. Arkansas 549 U.S. 891, U.S.Ark. (2006) (denying cert.)

Prior Counsel:

Conviction County: Pulaski

Counts: 4

Victim Demographic:

Crime Date: 02/11/2003

Sentencing Date: 09/10/2004

Trial Counsel:

• Bret Qualls

• Bill McLean

Trial Judge: Hon. Willard Proctor, Jr. (5th Division)

Trial Prosecutor:

• John Johnson

• Larry Jegley