Kathy Livingston

The Arkansas Supreme Court on Thursday upheld the first-degree murder conviction and life sentence of a Lake Village woman in the 2011 slaying of her husband, Bobby Livingston.

On appeal, Kathy Livingston argued that Circuit Court Judge Sam Pope erred when he failed to grant her motion to suppress physical evidence and denied her motion for a mistrial after her attorney’s father died during the trial.

Livingston, 60, was charged with capital murder in connection with the June 18, 2011 shooting death of her 58-year-old husband, Bobby Livingston.

According to the evidence presented at Livingston’s trial in Ashley County, where it had been moved due to pretrial publicity in Chicot County, Livingston called her daughter, Dawn Sims, and said “Dawn, I shot Bobby. He’s dead.”

Sims testified that her mother was intoxicated.

Sims, who lived across the street from the Livingstons in Lake Village, ran across the street and found her mother outside on the patio. Livingston yelled at Sims not to go inside the house, but Sims ignored her and went into the kitchen, where she found Bobby Livingston naked and lying on the floor in a pool of blood. Sims said he did not appear to be alive.

When Kathy Livingston walked back into the kitchen, Sims noticed that she too was naked and covered in blood. Sims attempted to call 911, but Livingston tried to stop her by wrestling the phone away. Sims struggled with her mother and pushed her out into the carport, locking the door. While Sims was on the phone with the 911 dispatcher, Livingston entered the house through another door. She was carrying a gun.

Sims testified that she was afraid her mother would hurt her and ran out of the house. Livingston followed her and, according to Sims, told her that she was not going to hurt Sims but was instead going to hurt herself. Livingston then walked back into the kitchen, and through the glass door, Sims saw her mother sit down on the floor next to Bobby Livingston and shoot herself in the chest.

Sims said she attempted to apply pressure to her mother’s wound but she resisted, complaining that Sims was hurting her. Sims called 911 a second time to report that her mother had shot herself. Shortly afterward, the police and medical personnel arrived, and Livingston was taken to the hospital. She survived her self-inflicted gunshot wound, but Bobby Livingston was dead when the paramedics arrived.

When Lake Village Police Officers Mike Pitts and Cole Rice arrived at the Livingston home, they discovered Sims sitting outside on the driveway, with her face, neck, and arms covered in blood. Sims told the officers that Kathy Livingston shot Bobby Livingston and was still in the house with the gun. The officers went through the carport door into the kitchen and saw the Livingstons lying on the floor.

Pitts thought that both were dead until he saw Kathy Livingston take a deep breath. He also noticed the weapon was underneath her leg. The officers backed out of the residence to wait on the paramedics and to avoid contaminating the scene.

Capt. Bob Graham and Arkansas State Police Investigator Scott Woodward subsequently prepared an affidavit for a search warrant for the residence. The affidavit said Bobby Livingston had been shot in the chest and killed by Kathy Livingston at approximately 6:51 p.m. and that Kathy Livingston had been taken to the hospital with a gunshot wound to the chest. A search warrant was issued by the Chicot County District Judge at 8:44 p.m. and a search of the home began at 8:49 p.m.

From the living room area, the police collected a 9mm shell casing matching the weapon found at the scene, one bullet, and blood samples found on the living room door, patio steps, recliner, and Bobby Livingston’s pants.

From the kitchen, police recovered the 9mm handgun, which contained a spent shell casing, and another 9mm shell casing on the floor. They also recovered blood samples and human tissue from the floor, sink, and wall.

Several days later, on June 21, 2011, another search warrant was issued, and additional evidence was collected from the kitchen after Bobby Livingston’s father contacted the police and informed them that, while cleaning, another bullet was discovered lodged in the kitchen floor.

Prior to trial, Kathy Livingston filed a motion to suppress the evidence found during the first search warrant. She argued that there was no justification or authorization for a nighttime search contained in the affidavit or search warrant and that the officers’ reentry into the Livingstons’ home on the night of June 18, 2011, was therefore illegal.

At the hearing on the motion to suppress, Pitts testified that he and Rice did not search the residence or seize any evidence when they responded to the 911 call from the residence. Pitts said he went briefly into the kitchen to determine the condition of Bobby and Kathy Livingston then went back outside to wait for paramedics and other officers.

When Capt. Graham arrived on the scene, just prior to the ambulance’s arrival, he instructed Pitts to take photographs of Bobby and Kathy Livingston before they were removed by the paramedics.

Graham testified that, after the paramedics had left and the scene was secure, he and Woodward prepared the affidavit for the search warrant while sitting outside the residence. The warrant was issued at 8:44 p.m. Woodward testified that he did not check any of the boxes to authorize a nighttime search warrant in his affidavit, nor did he indicate that there was probable cause for a nighttime warrant.

Pope denied the motion to suppress the evidence.

He found that, even if the nighttime search warrant was invalid, the evidence should not be suppressed because it would have inevitably been discovered during the second search, which was valid. He also noted that Bobby Livingston’s father had been cleaning the residence when he noticed the bullet lodged in the kitchen floor and notified the police.

“Since blood was also found in the living room, it is no stretch of the imagination to conclude that in cleaning he would have found the items earlier located in the living room had the police not seized them with the first search warrant, and notified the police, who would have secured a valid search warrant for their seizure,” Pope said.

At Livingston’s trial, crime lab personnel testified that all of the collected blood and tissue samples matched Bobby Livingston’s DNA, with the exception of the sample from the living room door, which contained DNA from more than one person, with Bobby Livingston being the major contributor.

Charles Paul Kokes, the chief medical examiner, testified that Bobby Livingston sustained two gunshot wounds, one to the hand and one to the chest. In the shot to the chest, he said, the handgun was in direct contact with the chest and that shot went through Bobby’s heart, causing his death.

Based on evidence from the scene, Woodward determined that Bobby Livingston was shot in his hand while sitting in the recliner in the living room and that he then went into the kitchen, where he held his hand over the sink, resulting in vertical blood spatter.

Investigator David Tumey testified that Bobby Livingston was shot a second time in the chest while standing up next to the sink. His tissue was found near the sink area and a bullet hole found in the tile backsplash. Tumey said the bullet found in the kitchen floor came from Kathy Livingston’s self-inflicted gunshot wound to the chest.

The jury was instructed on the charged offense of capital murder, as well as the lesser-included offenses of first-degree murder, second-degree murder, and manslaughter. The jury convicted her of first-degree murder and sentenced her to life in prison.

In her first point on appeal, Kathy Livingston challenged the circuit court’s denial of her motion to suppress.

She argued, as she did to the circuit court, that the evidence seized from the living room and patio pursuant to the first search warrant should be suppressed because the affidavit in support of the warrant did not contain justification for a nighttime search and the judge did not authorize a nighttime search.

She conceded that there were exigent circumstances to justify the officers’ initial entry into the kitchen to secure the murder scene; however, she maintained that once the scene has been secured, the officers had no right to enter or search the residence without a valid warrant.

A judge may issue a search warrant to be executed between the hours of 8 p.m. and 6 a.m. only if he or she has reasonable cause to believe that the place to be searched is difficult of speedy access, or the objects to be seized are in danger of imminent removal, or the warrant can only be safely or successfully executed at nighttime, or under circumstances the occurrence of which is difficult to predict with accuracy.

The state Supreme Court has invalidated nighttime search warrants where the evidence presented in support of the nighttime search lacked sufficient factual information to support one or more of these exigent circumstances.

In this case, the first search warrant was executed after 8 p.m., and the state does not dispute that police violated the requirement that they obtain a nighttime search warrant. However, the state contends that a motion to suppress should be granted only if the court finds that the violation, upon which it is based, is substantial or if it is otherwise required by the U.S. or Arkansas Constitution.

The state argued that the unauthorized nighttime search was not a substantial violation under the circumstances in this case. In addition, the state agrees with the circuit court’s finding that the evidence from the living room would have been inevitably discovered pursuant to a valid search warrant, in much the same manner as the bullet that was discovered lodged in the kitchen floor several days later.

Further, the state contended that Kathy Livingston cannot demonstrate prejudice from the seizure of the evidence from the living room, given all the other evidence that was properly admitted, and asserted that the circuit court’s ruling can be affirmed under the harmless-error doctrine.

“We agree with the State that the admission of evidence from the living room and the patio is harmless error under the facts in this case; therefore, there is no need to address whether the violation was substantial or whether the circuit court properly applied the inevitable-discovery doctrine,” Associate Justice Cliff Hoofman wrote in the decision for the court. “The denial of a motion to suppress can be harmless error when the evidence of guilt is overwhelming and the error is slight, or this court concludes beyond a reasonable doubt that the error did not contribute to the verdict.”

Even if the evidence from the living room and patio had been excluded, there remains ample evidence to sustain Kathy Livingston’s conviction for first-degree murder, which required the state to show that she purposely caused Bobby Livingston’s death.

Kathy Livingston told her daughter, Dawn Sims, that she had shot and killed the Bobby Livingston. Sims also saw her mother with the pistol, and it was determined that the two empty shell casings in the kitchen were fired from the only pistol recovered from the scene.

Kathy Livingston argued that without the evidence, the state would not have been able to prove its theory that she shot the Bobby Livingston in a premeditated or purposeful manner by shooting him once in the living room and then by following him into the kitchen, where she shot him a second time.

“We disagree,” Justice Hoofman said. “The medical examiner testified that the victim had two gunshot wounds, one in his hand and one at point-blank range to his chest. Because only two projectiles were found in the kitchen, one of which resulted from appellant’s self-inflicted gunshot wound, the jury could infer that appellant shot the victim in another room and then fired the second gunshot in the kitchen.

“Further, the vertical blood spatter and other evidence showed that the victim stood over the sink with his hand wound and was then shot in the chest while standing in that area,” Hoofman said. “Most notably, this second gunshot wound occurred when the handgun was pressed directly against the victim’s chest, and the bullet penetrated his heart.”

The Supreme Court has held that in a first-degree murder case, the defendant’s intent may be inferred from the nature, extent, and location of the victim’s wounds.

“Given these facts, we find that there was overwhelming evidence to support (Kathy Livingston’s) conviction for first-degree murder and that any error resulting from the admission of evidence from the living room and patio was slight,” Hoofman said. “We therefore affirm on this point.”

In her second point on appeal, Livingston argued that the circuit court erred by denying her motion for mistrial when defense counsel’s father died on the evening before the second day of trial.

“It is well settled that a mistrial is a drastic remedy and is to be employed only when an error is so prejudicial that justice cannot be served by continuing the trial,” Hoofman said. “The determination of whether to grant a mistrial is within the sound discretion of the trial court, and the decision will not be reversed absent a showing of abuse or manifest prejudice to the appellant.”

Livingston’s attorney notified the circuit court on the morning of the second day of trial that his father had died, and he asked for a mistrial, saying he considered himself ineffective to try the case that day. Pope said he was reluctant to grant a mistrial because the prosecution and the jury had already spent a great deal of time preparing for the case and hearing evidence.

The state argued that a continuance for a week would be sufficient for defense counsel to conclude his arrangements and return to complete the trial.

Pope then asked both parties if they would be able to continue the case until the following week. The state agreed to the arrangement, and the defense attorney said his only issues were whether he could take care of the funeral arrangements before then, whether the witnesses would remain under subpoena, and whether the jury might be prejudiced by outside influences during the suspension of the trial.

Pope gave the defense attorney the opportunity to take one witness’ testimony in the event that she could not return the following week and agreed to give the jury a cautionary instruction that they should not read about or discuss the case during their absence.

The defense attorney did not further object to the continuance, and when the trial was resumed the following week, Pope, on the defense attorney’s request, questioned the jury to ensure that they had not been prejudiced during the continuance. The jury did not bring anything to the court’s attention during this questioning.

“Under these circumstances, the trial court did not abuse its discretion in denying the motion for a mistrial,” Hoofman said. “The court balanced the need for defense counsel to make arrangements and to process his situation with the interests of the prosecution, the witnesses who had testified, and the jury in continuing the case. In addition, (Kathy Livingston’s) concern about possible outside influences on the jury was addressed by the circuit court, both through its cautionary instruction and its questions to the jury when the trial resumed. We therefore affirm on this point as well.”

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