## Facts

- On November 30, 2009, Thomas Xavier Clayton was found at an intersection in Fort Smith, Arkansas, suffering multiple gunshot wounds after falling or being thrown from the back seat of a maroon four-door car.
- Clayton was transported to St. Edward’s Hospital and died less than an hour after the shooting.
- At the scene, a firefighter asked Clayton who shot him; Clayton responded, “Q.”
- Quincy Jay Plessy was known by the nickname “Q.” He was arrested a few days later and charged by information with first-degree murder.
- Before trial, Plessy moved to exclude Clayton’s “Q” statement as hearsay; the circuit court denied the motion and admitted the statement as a dying declaration.
- The State relied on multiple sources of proof at trial, including testimony from Jamal Gibson (described as an accomplice by the defense) and other evidence tying Plessy to the shooting.
- Shortly before trial, the State amended the information to add a firearm-use add-on sentence under Ark. Code Ann. § 16-90-120, seeking a consecutive term if the jury found Plessy used a firearm during the felony.
- Plessy also sought relief during trial based on alleged prosecutorial misconduct (requesting a mistrial) and objected to the admission of photographs depicting Clayton’s body and gunshot wounds.
- The jury convicted Plessy of first-degree murder and found that he committed a felony with a firearm. The circuit court imposed a total sentence of 420 months’ imprisonment (including a consecutive firearm-use term).
- Plessy appealed to the Arkansas Court of Appeals from the judgment of conviction.

## Issues

1. Whether Plessy preserved a challenge to the sufficiency of the evidence (including the claim that accomplice testimony was not corroborated) for appellate review.
2. Whether the circuit court erred by allowing the State to amend the information shortly before trial to add a firearm-use add-on sentence under Ark. Code Ann. § 16-90-120.
3. Whether the circuit court abused its discretion by denying Plessy’s motion for a mistrial based on alleged prosecutorial misconduct.
4. Whether Clayton’s statement identifying “Q” was admissible as a dying declaration under Arkansas Rule of Evidence 804(b)(2).
5. Whether the circuit court abused its discretion by admitting photographs of the victim over a Rule 403 unfair-prejudice objection.

## Decision

- The Arkansas Court of Appeals affirmed the judgment of conviction and sentence.
- The court declined to reach the merits of the sufficiency-of-the-evidence argument because the directed-verdict challenge was not properly preserved under Arkansas procedure.
- The court upheld the amendment of the information, concluding that adding the firearm-use add-on sentence did not change the nature or degree of the charged offense and did not unfairly surprise or prejudice Plessy.
- The court held that denial of a mistrial was not an abuse of discretion, given the trial judge’s superior position to assess prejudice and the availability of less drastic remedies.
- The court held Clayton’s “Q” identification was admissible as a dying declaration because the circumstances permitted an inference that Clayton believed death was imminent, and the statement concerned the cause or circumstances of his death.
- The court upheld admission of the photographs, finding they were relevant to show the nature, location, and extent of the wounds and were not excluded merely because they were graphic.

## Legal Principles

- A sufficiency-of-the-evidence claim is not reviewed on appeal unless the defendant makes timely directed-verdict motions at the required stages of trial and states specific grounds identifying the alleged deficiency.
- The State may amend an information before the case is submitted to the jury if the amendment does not change the nature or degree of the offense and the defendant is not unfairly surprised or prejudiced; adding a firearm-use add-on sentence may be permitted on that basis.
- A mistrial is a drastic remedy and is appropriate only when an error is so prejudicial that the trial cannot fairly continue; appellate review asks whether the trial court abused its discretion.
- Under Ark. R. Evid. 804(b)(2), a dying declaration is admissible when the declarant is unavailable, the statement concerns the cause or circumstances of what the declarant believed to be impending death, and the declarant believed death was imminent; that belief may be inferred from the condition of the victim and surrounding circumstances.
- Photographs are admissible if they assist the factfinder by illustrating testimony or showing the scene, injuries, or condition of the body; they are not inadmissible solely because they are gruesome, so long as unfair prejudice does not substantially outweigh probative value under Rule 403.

## Conclusion

In Plessy v. State, the Arkansas Court of Appeals affirmed Quincy Jay Plessy’s first-degree murder conviction and sentence, holding that his sufficiency challenge was procedurally barred and that the trial court acted within its discretion in allowing a late amendment adding a firearm-use add-on sentence, denying a mistrial request, admitting the victim’s “Q” identification as a dying declaration, and admitting photographs of the victim’s body.


Plessy v. State, 388 S.W.3d 509 (2012)