Terry L. BISHOP v. STATE of Arkansas
CR 87-121
Supreme Court of Arkansas
January 19, 1988
742 S.W.2d 911
A similar development occurred in Check v. Meredith, 243 Ark. 498, 420 S.W.2d 866 (1967) where Mrs. Meredith sued for property damage and medical expenses on behalf of two children, Joyce and Robert. Her damages were $600 for her car, $710.26 for medical expenses for Joyce and $682.55 for medical expenses for Robert. The jury awarded Mrs. Meredith $1,500, Joyce $6,000, and Robert $3,500. The defendant argued on appeal that the medical expenses were recovered both by the children and by Mrs. Meredith since the court had included the medical expenses under AMI 2201, “which was properly given twice, once for Joyce and once for Robert.” The argument was rejected on appeal because the appellant did not object to the instructions on damages or to the method by which those issues were submitted to the jury.
Affirmed.
Terry L. Bishop, pro se.
Steve Clark, Att‘y Gen., by: Lee Taylor Franke, Asst. Att‘y Gen., for appellee.
DAVID NEWBERN, Justice. This case has come to us as an appeal in which counsel for the appellant has determined,
The evidence shows that Bishop and a companion entered a liquor store. Bishop approached Jodie Mahfouz, who was working behind the counter, with a bottle of wine and asked the price. Mahfouz asked Bishop for identification. Bishop turned as if to walk away, but abruptly turned back and swung the bottle at Mahfouz‘s head. Mahfouz ducked, and Bishop jumped up on the counter, knocking the cash register to the floor in the process. He swung again at Mahfouz who had obtained a pistol with which he shot Bishop who was later arrested and charged with aggravated robbery.
At the time the alleged offense was committed, aggravated robbery was defined by
There is no doubt the evidence was sufficient to show an attempt to inflict serious physical injury upon Mahfouz. That leaves only the question whether the evidence was sufficient to show Bishop intended to commit theft when he swung the bottle at Mahfouz. A police officer testified at the trial that the appellant‘s mother told him that Bishop told her the reason he robbed the store was that he needed the money for Christmas. Bishop‘s counsel objected to this testimony on the ground that the officer testifying was not the one who prepared the written investigation account of what was said by Bishop‘s mother. The officer who had prepared the report was then called as a witness, and he gave substantially the same testimony as the other officer had given. While this testimony was subject to a hearsay objection, none was made. Excepting testimony from Mr. Mahfouz that he surmised Bishop and his companion intended to kill him or to rob the store, no other evidence tending to show the intent to commit theft was admitted.
We have no hesitancy in saying that the policeman‘s testimony as to Bishop‘s mother‘s statement was admissible against him in the absence of objection, as the objection may not be made for the first time on appeal. See Janes v. State, 285 Ark. 279, 686 S.W.2d 783 (1985); Harris v. State, 262 Ark. 506, 558 S.W.2d 143 (1977). Nor do we doubt that unobjected to hearsay evidence may constitute substantial evidence sufficient to support a conviction. Murray v. State, 275 Ark. 46, 628 S.W.2d 549 (1982); Arkansas State Highway Commission v. Bradford, 252 Ark. 1037, 482 S.W.2d 107 (1972). However,
In Trotter v. State, 290 Ark. 269, 719 S.W.2d 268 (1986), we held in very similar circumstances that the evidence did not support a conviction of aggravated robbery, and we reduced the sentence to one appropriate for first degree battery. However, in that case the confession was a typical confession to police officers after the accused had been apprehended. Trotter made his statement in the presence of two sheriffs, a state police investigator and a sheriff‘s investigator. There is thus a temptation to say that Bishop‘s statement to his mother was not the sort of “confession” the general assembly had in mind when it stated that an extra-judicial confession would not support a conviction “unless accompanied with other proof that such an offense was committed.” This provision first appeared in Arkansas law as § 239 of the Criminal Code of 1868. There was no emergency clause or other document descriptive of legislative intent. We are thus relegated to the traditional meaning of the word “confession“.
In Edwards v. State, 171 Ark. 778, 286 S.W. 935 (1926), the defendant told his wife, in the presence of a deputy sheriff to go out and borrow more money because when he got out of jail he would “rob another bank” and they would then have plenty of money. We said that statement, made to Edward‘s wife and in the presence of a deputy sheriff, was in the nature of a confession. In Workman v. State, 267 Ark. 103, 589 S.W.2d 21 (1979), we dealt with the claim of an appellant who said that statements she made to officials in the process of hindering apprehension or prosecution of a robber were the same as a confession with respect to which she had been deprived of a Denno hearing. We held the statements were not a confession or confessions and said, “[a] confession is an admission of guilt as to the commission of a criminal act.” We find no authority whatever for the proposition that a statement of guilt must be made to police officers, or indeed to any other particular person or persons, to constitute a confession.
As the offense of robbery was an element of the offense of aggravated robbery, it was incumbent upon the state to prove the intent of Bishop to commit theft when he struck at Mahfouz with the bottle. The only evidence of that intent is Bishop‘s statement to his mother. That was a confession. Absent corroboration it does not warrant conviction. Bishop‘s counsel raised the
As we cannot sustain the conviction of aggravated robbery, the question becomes whether the evidence was sufficient to warrant conviction of a lesser included offense. In Trotter v. State, supra, we reduced the conviction of aggravated robbery to one for first degree battery. We recognized that battery is not in the same generic class as robbery, and that it thus was not a lesser included offense in the sense of our statement in Caton v. State, 252 Ark. 420, 479 S.W.2d 537 (1972). However, we noted that first degree battery “overlapped” with aggravated robbery in that a person charged simultaneously with both offenses arising from the same incident could not be convicted of both. Cf. Williams v. State, 11 Ark. App. 11, 665 S.W.2d 299 (1984).
Our statute defining lesser included offenses for purposes of prosecution and conviction is
The definition of aggravated assault was codified at the time the offense in this case was alleged as
(1) A person commits aggravated robbery if he commits robbery . . . and he:
(a) is armed with a deadly weapon, or represents by word or conduct that he is so armed; or
(b) inflicts or attempts to inflict death or serious physical injury upon another person.
Although we know of no cases which hold that one may
When the proof is such as to support conviction of a lesser included offense but not the offense of which the accused was convicted, we may reduce the punishment to the maximum for the lesser included offense, or reduce it to the minimum for the lesser offense or something in between, depending upon the circumstances. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977). In this case, we deem it appropriate to reduce the sentence from 70 years imprisonment to the maximum appropriate for the lesser included offense of aggravated assault which was, at the time the offense was committed, a class D felony. The maximum sentence for one convicted of a class D felony with four or more other felony convictions is 15 years imprisonment. Accordingly the sentence is reduced from 70 to 15 years.
Affirmed as modified.
HICKMAN, HAYS, and GLAZE, JJ., dissent.
DARRELL HICKMAN, Justice, dissenting. I dissent for several reasons.
The majority in this case, as in Trotter v. State, 290 Ark. 269, 719 S.W.2d 268 (1984), has forgotten its appellate role which is to review cases and affirm them if possible, rather than look for a reason to reverse a decision. The majority in this case, as in Trotter, has reversed a decision for a reason not raised on appeal. When the officer who had prepared the report testified regarding what the appellant‘s mother had told the two officers, no objection was made; that evidence is substantial evidence and can support a verdict. No argument was made below or on appeal whether the statement made to the mother was a “confession.” That is a legal question the majority decided to answer on its own.
The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict.
A confession of a defendant, unless made in open court, will not warrant a conviction, unless accompanied with other proof that such an offense was committed.
That fundamental error is compounded when the same approach which was taken in Trotter is taken in this case, and that is that a jury cannot infer intent from the actions of the defendant. That is a marked departure from existing law. We have held, “[i]ntent or purpose behind an act, being a state of mind can seldom be positively known to others, so it ordinarily cannot be shown by direct evidence, but may be inferred from the facts and circumstances surrounding the act.” Heard v. State, 284 Ark. 457, 683 S.W.2d 232 (1985).
In this case there was evidence offered at trial that two men entered a liquor store. Both went to the wine cooler. After picking up a bottle of wine, the appellant walked to the counter and asked the owner how much it cost. Mr. Mahfouz, the owner, testified that the appellant tried to hit him in the head twice before Mr. Mahfouz shot him in the leg. There was also testimony offered that showed that there was a third man, Tony, who waited outside the store while the other two went inside to buy some “cigarettes.” However, neither man inside the store picked up any “cigarettes” or asked for any.
In my judgment the majority is holding a juror cannot use his common sense in deciding cases. The jury was clearly convinced by the appellant‘s actions that the appellant intended to rob the store and so was the store owner.
This question was asked of Mr. Mahfouz, the store owner:
Q. I just heard your testimony and not one . . . but not one time did you say anything about Terry Bishop trying to rob you.
A. Well what would you think in that situation with a man trying to hit you in the head. What did he hit me in the head for?
Robbers need to tell shopkeepers “stick ‘em up, this is a robbery” to convince the majority a robbery is intended. Only the majority is in the dark in this case.
HAYS and GLAZE, JJ., join in the dissent.