By John Lyon
Arkansas News Bureau
LITTLE ROCK — The state Supreme Court today rejected the appeal of a condemned murderer from New Orleans who claimed he suffered from stress related to Hurricane Katrina when he killed a Fayetteville couple two years ago.
The high court affirmed the double capital murder convictions of Gregory Christopher Decay, who has been sentenced twice to death for fatally shooting Kevin Jones and his girlfriend, Kendall Rice, both 24, in their Fayetteville apartment in April 2007.
Prosecutors said Decay believed Jones and Rice had stolen guns and marijuana from his apartment. Decay’s lawyers claimed that Decay suffered from hurricane-related stress.
On appeal, Decay, now 24, argued that jurors should not have heard recordings of phone calls he made to family members from the Washington County jail.
In its opinion today, the state Supreme Court said a recorded message informed Decay at the start of each call that the call might be recorded, so Decay had no reasonable expectation of privacy.
Decay also argued that the trial judge should have allowed the defense to present evidence during the sentencing phase that drugs were present in the victims’ bloodstreams.
An agreement was reached before the trial that the toxicology reports of the victims would not be admitted, but during the trial the state elicited testimony about whether illegal drugs were found in the victims’ apartment. Decay’s lawyer argued that this opened the door to admission of the toxicology reports, but the trial judge said the evidence would not be permitted.
The Supreme Court said the trial judge did err on this point, but that Decay failed to show how he was prejudiced by the error.
Decay further argued that the trial judge improperly rejected a proposed jury instruction that would have told jurors they could not consider victim-impact evidence as an aggravating circumstance. The Supreme Court said the instruction was not necessary because it essentially would have repeated an instruction the jury did receive.
The court also rejected Decay’s argument that the jury improperly ignored mitigating factors such as his lack of a significant criminal history.
“The jury alone determines what weight to give evidence presented on mitigating circumstances and may reject it or accept all or any part of it that the jurors believe to be true,” Justice Paul Danielson wrote in the court’s opinion.
Decay further argued that the trial judge violated his right to present evidence of remorse by refusing to allow his family members to express apologies and sympathies to the victims’ families. The Supreme Court disagreed.
“The feelings of his (Decay’s) family did not constitute evidence of his personal remorse,” Danielson wrote in the opinion.
In a separate opinion, Justice Robert Brown wrote that he concurred in the decision to uphold Decay’s conviction and death sentence but was concerned that Arkansas courts lack guidance on the admission of victim-impact evidence. He noted that Oklahoma has set specific guidelines on the admission of this type of evidence, but Arkansas has not.
“This critical issue needs to be addressed,” Brown wrote.
