*1 Arkansas STATE of BYRD v. Clinton Eugene 992 S.W.2d 98-1087 CR of Arkansas Court Supreme 6, 1999 delivered May Opinion delivered opinion 1999] [Substituted June *3 Price, Val P. for appellant. Gen.,
Mark David Pryor, Att’y R. by: Ass’t Raupp, Att’y Gen., for appehee. Clinton Appellant Eugene Ray Thornton, Justice.
Byrd appeals judgment Craighead County Circuit Court him finding guilty for the *4 7, 1997, Davis, death of Austin the seven-month-old son of June appellant’s was tried girlfriend. a and Appellant sentenced by jury to fife which imprisonment, rise to our gives to jurisdiction review this matter under Ark. Ct. R. Sup. 1-2(a)(2). Appellant raises four for reversal: arguments That there was (1) insufficient evidence that he death; caused the child’s knowingly that the (2) trial court sustained an to improperly objection appellant’s attempt to a witness based impeach statement; a inconsistent upon prior (3) trial court erred when it refused to rule on an objec tion to the State’s cross-examination of and that it appellant; (4) was error for the trial court to for an deny appellant’s request instruction on a lesser charge murder. We find no reversible error and affirm the trial court’s judgment.
I. Fads Danna his lived in girlfriend, Appellant Jonesboro sons, Austin Davis, Blake and and seven-month-old twin her 5, 1997, her sons Danna Davis left Davis. On the evening June work, home at the while she went to leaving with appellant condition later 6:00 She described physical p.m. approximately abnormalities, “fine,” before no bruises or children as that At o’clock she to work. eight evening, went approximately ran room of St. Bernard’s Hospital, appellant emergency of Austin. body carrying crumpled Bernard’s, at testified St. Dr. Brian Harvey, pediatrician ill, linear bruises and with two long that Austin was very pale heart rates. his and abnormal above left breathing eyebrow low, and he was in a child’s was very body temperature that told him that state. Dr. testified coma-like Harvey appellant check on his twin brother and he had left Austin the bathtub to not but under water. returned find child unresponsive, child, “I that in to revive hit told the doctor trying Appellant hard, I hit real hard and after that him doc. him moving.” quit “real that he him hard” told the doctor slapped Appellant breathe, he did him to and when face and head get him Dr. testi- ran with to the room. Harvey emergency respond, facial rib his based on the bruising, fied that tentative diagnosis, fractures, cranial and loss of consciousness his inner bleeding, revealed, abuse, his were child and that examination injuries of the events. Austin was inconsistent with appellant’s description “Children’s”) Children’s (hereinafter airlifted Arkansas Hospital Rock, his exten- where he was on life Litde placed support sive internal injuries. Children’s, Bradshaw, a at testified that
Dr. Amanda resident to take on ventilator. She history Austin placed attempted and Danna Davis on the incident reported appellant time, at that did about the child not say hitting anything in the bathtub when he that the child was sitting up but did claim *5 Children’s, Cline, at testified that a returned. Dr. Sara radiologist scans, Austin revealed five and CT scans taken of bone X-rays, fractures, a a fracture and left skull healed or including healing fracture, ribs, tibia as well as five of broken all which were more than hours old. scan Austin’s brain revealed a skull twenty-four fracture with soft of the tissue a recent swelling scalp, indicating fracture, swollen, and that all of the brain were parts sutures Blood had filled the spread apart. open spaces child’s brain. fracture,” left
Austin’s indicated a “bucket handle found leg in children than only two of due years age softness younger Cline, of their bones. to Dr. of According fracture type abuse, occurs as a of result child not from only childhood typical accidents, and the child the limb. generally shaking Fur- by thermore, the brain found Austin were injuries consistent with the child’s head a solid A banging against characteristic of object. child is the abuse of of various presence injuries ages, indicating more one than of violent abuse. Austin’s episode injuries sug- old, rib fractures of healing two six weeks gested fracture leg week, of less than an and acute brain and skull injury, suggesting at least two abuse. of The cause death episodes of was severe shak- to head and this of ing was leading injury, degree shaking consistent with of to resuscitate appellant’s description attempting the child. The studies of the radiology head indicated that injury would have occurred between and injury six on the eight p.m. 5, 1997, and it evening would be unlikely injury June occurred much six before o’clock because seriousness of the condition. Dr. Cline testified that she “one hundred percent abused, sure” that Austin was based the nature and pattern observed, that she injuries and that it such a classic case of child abuse she used Austin’s as illustrative in X-rays teaching classes.
Dr. Mark Heulitt from the intensive care unit of Children’s testified Austin’s brain concerning injury swelling, describing and brain brain death. bleeding damage indicating According Heulitt, Dr. the brain was a from the brain swelling complication Danna, In injury. Dr. meeting Heulitt appellant described fall reported Austin that could not appellant be by mother, corroborated his as his by well head on a car hitting Heulitt, door on the to the to Dr. way none hospital. According offered were consistent with explanations by Aus- *6 child was maltreat- The doctor’s diagnosis level of tin’s injuries. was testified that he and ment or shaken baby syndrome, syndrome abuse, that child and certain” that was “one hundred percent the an of his arrival at occurred within hour the brain injury which around 8:00 was p.m. room Jonesboro, emergency death was a result of was indication that Austin’s past There no disorder. or seizure breathing problems was off brain dead and he taken determined to be Austin was fife on 1997. An was by autopsy performed support June Kokes, examiner, Lab, Dr. testi- Charles medical State Crime Austin died as about their In Dr. Kokes’s fied findings. opinion, blunt trauma to the head cerebral force result cranial injuries, was medical was that the manner death and brain. His opinion homicide. case, was
At of the who the close State’s appellant, charged 5-10-103 (a) (3) murder under Code Ann. death of a fourteen years causing age “knowingly verdict, moved for directed State or younger,” arguing had failed the element of motion to “knowingly.” prove defense, denied. then took the stand his own alleging Appellant Austin the floor before she had thrown or kicked on Danna he Austin had a left for work. found dirty According appellant, him in bathtub with the water running, leaving diaper put Blake, check and returned him unattended on momentarily Austin under water. He admitted find Austin slapping “pretty him some hard” get and shaking attempting repeatedly, the child. He denied causing any injuries response doctors, for brain injuries. described Appellant by except that, child for “I didn’t to the injuries testified cause any except Little Rock told us the brain the doctor in which swelling that I would be the that was due to That shaking. only injury care testified that he was the caused.” primary giver Appellant that he had to be careful with the children and that knew He further testified that children because were “soft.” they had to crawl and only begun sitting child too just up young own. his concluded the defense and testimony
Appellant’s moved for a directed verdict on the again the State grounds *7 had failed to the element of The motion prove “knowingly.” denied, court and the took the of again issue instructions. up jury The defendant be instructed on the requested jury charge murder, of that this was a lesser second-degree included arguing offense of the murder The trial first-degree court denied charge. the murder could not be request, ruling lesser included of the murder offense because the second- charge murder contained an element degree additional not charge present in the i.e. the death first-degree charge, under cir- causing cumstances extreme indifference to the manifesting value of human life. and,
The returned a verdict of a sen- guilty, following evidence, tencing hearing recommended victim-impact sentence of life was sentenced to life imprisonment. Appellant by the trial and this follows. judge, appeal
II. the Evidence Sufficiencyof the the of evidence Appellant challenges to sufficiency sup his conviction for port murder. When an evidence, the of the we challenges sufficiency address the issue State, 554, to all others. v. prior 329 Ark. 953 Roseby S.W.2d 32 (1997). On claims that his conviction appeal, appellant must be reversed because failed the State sufficient evidence that present he acted Davis, the death Austin “knowingly” causing Ark. Ann. Code required by 1997), which 5-10-102(a)(3)(Repl. that a commits provides murder in first if he person degree death causes the of a knowingly fourteen (14) years age or at the time murder was younger committed.
A motion for directed
is a
verdict
to the
challenge
of the
evidence.
test
sufficiency
the suffi
determining
of the evidence is whether the
is
ciency
verdict
sub
supported by
evidence,
stantial
direct or circumstantial. Substantial evidence is
evidence that is of sufficient
certainty
precision
compel
State,
241,
conclusion
or
one
another.
v.
328 Ark.
way
Ladwig
421
evidence,
in the
reviews the evidence
light
court
appellate
State,
of conviction
and sustains a
most favorable to
judgment
State,
Abdullah v.
301
is
evidence to
it.
if there
substantial
support
S.W.2d
(1990).
offers various
In his
purportedly
argument, appellant
at trial
be
facts to
evidence presented
exculpatory
weighed against
court, however,
that is
views
the evidence
the State. This
only
by
it
weigh
most favorable to the
verdict
does
against
jury’s
v.
accused. Hendrickson
other
favorable
conflicting proof
A criminal defend
316 Ark.
871 S.W.2d
(1994).
direct
intent
state of mind is
ant’s
rarely
proof by
capable
inferred
evidence and must
be
circumstances
usually
the crime.
v.
According (Repl. his “A acts to a result of 1993), knowingly respect certain his con conduct when he is aware that it is practically State, a result.” v. 943 duct will cause such Ladwig A need not aside its commonsense lay S.W.2d 571 (1997). fife, and it infer defendant’s affairs may evaluating ordinary conduct. See incriminating explanations guilt improbable Davis v. 329 953 38 v. Ark. S.W.2d (1997); e.g., Goff The evidence was 768 (1996). S.W.2d the child know- struck and shook sufficient show could be result serious or death. The motion ing injury for directed verdict was denied. properly
III. with Prior Inconsistent Statement Impeachment For his second on contends that the point appeal, appellant trial court sustained an the State objection by improperly appel- lant’s Danna Davis’s based on a attempt impeach testimony inconsistent statement to prior police. exchange follows:
Q. back to . the . . statement made Going to the [you Jones 9th, boro and this would been police], have I June — believe that was a Was that a statement? taped Yes, A. sir. n
Q. ever Have seen Clinton strike you Blake? Blake, A. no.
Q. Have ever seen you Clinton strike Austin?
A. No.
Q. Have ever seen Clinton you abuse Austin? physically — — mean, A. No Yeah I I told him about time when he walked into the bedroom when were and he they crying, had went there and Clinton had locked the door behind him, it, I and had to credit get card to open and was mouth, like had Austin holding his his face like holding try- *9 to him to ing get or out or quit crying and I pass something, him, tried himget to he away and pushed me away, what, and I asked him he what was you are doing, “What — and the you doing,” that’s only time — Q. recall Do a you asked being question This is on four page — you did ever see Clinton abuse physically Austin or Blake, and you answered: I never saw him. Do recall you that answer? giving Yeah,
A. guess. I I don’t remember. The State to this line of objected to the questioning, arguing trial court that the defense could not ask on cross for questions of out contradictions for purposes bringing purposes impeach-
423
and
court
the
The trial
sustained
objection,
appellant
merit.
her
with
the witness
to further
impeach
attempt
permitted
to this
statement.
appeal
inconsistent
Appellant argues
alleged
and
on this
the case should be reversed
remanded
point.
court that
rul
court’s
we
that the trial
While
agree
appellant
Evidence
of the Rules of
reflected an incorrect understanding
ing
statement,
inconsistent
with regard
impeachment
prior
does
reversible error because
we do not find
to be
appellant
had made
The witness was asked whether she
not show prejudice.
had
she
statement
answered that
contradictory
previous
did not make
made such a statement.
proffer
Although appellant
witness, we note
that
to elicit from the
the
testimony
hoped
extrinsic
of the
Rules of
that Rule 613
Arkansas
Evidence permits
be intro
statements
a witness to
evidence of
inconsistent
prior
is
if the witness
the
duced for
purpose
impeachment only
statement, and
the
the
afforded
explain
deny
opportunity
it,
the
afforded
and the other
is
does not admit
made
having
party
See
witness on
statement.
the
interrogate
opportunity
State,
v.
Harris
v.
Under circumstances of the State’s no as a result of demonstrated prejudice granting assum is Even of his overwhelming. the proof guilt objection, court State’s the trial erred sustaining objection, ing effect of the testimony was harmless error prejudicial Rockett evidence of overwhelming. was minimal guilt cannot say 890 S.W.2d We (1994). v. reversal. this claim of error warrants *10 III. Trial Court’s to Rule on Objection Appellant’s Refusal next contends that the trial court committed error Appellant to rule when it failed the follow- objection during appellant’s between the ing exchange prosecutor- appellant.
Q. The doctors from also in Rock Children’s Little indicate
that when down there you got you you told them hit this head on kid’s the car. said that I
A. I did not know. He asked what possibilities of what caused were would have this child’s and I damages, him that I told did not know because he if I asked had hit head. I his told him I didn’t know if I hit had his head or not, and that’s what led to the conclusion I hit it did on the door, out the I hit it way did car. And I getting did, didn’t answer this myself. I didn’t I question say yes, no, I didn’t. So, Q. Doctor Heulitt gave wrong testimony is that today, you’re
what saying?
A. am not sure I what I . . .
Q. Doctor Heulitt said told him you you hit this kid’s head the car . .
against . to the form the Appellant’s attorney objected question, that this was an asserting characterization testi- improper Dr. Heulitt. mony by given that the had notes and judge responded made could
draw their own conclusions from evidence but he presented, would not comment on the evidence. counsel then Appellant’s restated his and asked the court for objection which the ruling, trial refused to that to on the judge rule again give, saying objec- tion as had it be would to comment- phrased equivalent conference, on the evidence. At a bench ing stated: judge I sustain the I am objection, doctor didn’t saying say “[I]f that, and that’s comment on the evidence I don’t because know for sure he said . what . . exactly Maybe you ought rephrase to one that is a I your objection that can rule objection on. proper That is not a It particular objection ... sounds to proper objection
425 me like what are is an leading you up argumentative question the->truth, is an who which is telling argumentative question.” contends in his brief a that his Appellant objection to the form of the because the proper objection question question evidence, assumed a not fact and asks this court that reverse the trial court and remand the case based on this decline to We point. do so. fail must because he failed to a obtain Appellant’s argument on his ruling This court will not review a matter objection. on rule, which the trial court and did a to raise the party seeking on a has the burden to a point obtain appeal concerning ruling Matters left unresolved ruling. not be raised on may simply State, Alexander v. 335 Ark. 983 appeal. (1998). S.W.2d While understood the a appellant necessity getting ruling, one, asked the court to he did not state his repeatedly give objec tion in a on form which the trial believed he could rule judge without on the evidence. commenting
Furthermore, a
cannot
about a
party
complain
on
favorable
ruling
now seeks to do. Echolsv.
appeal,
appellant
326 Ark.
S.W.2d 235 (1994).
IV. LesserIncluded
Instruction
Offense
that
trial
court instruct
Appellant requested
the lesser
of murder in the second
Ark. Code Ann.
charge
degree,
5-10-103,
that
it was lesser included offense of the
contending
§
of murder in
first
original charge
degree,
“knowingly
the death of
fourteen
(14)
caus[ing]
years
age
Ark. Code Ann.
time the murder was committed.”
at the
younger
trial court
contended
should
5-10-102(a)(3). Appellant
have
the instruction applicable
given
the death of Austin Davis under
caused
“knowingly
*12
the
of
to
value
extreme indifference
circumstances manifesting
instruction,
life,”
transitional
as well as the
human
appropriate
as an alter-
consider
murder
instructed the
to
as a
included offense. The flaw
the crime
lesser
native to
charged
cir-
is
a death under
that the element of
in
causing
argument
the
of
indifference to
value
extreme
cumstances manifesting
mur-
element of the
for first-degree
human life" is
an
charge
or
der of a
fourteen years
aged
younger.
person
to be
must meet three criteria
consid
An offense
must be
of
l)It
ered a
included offense:
established by
lesser
proof
offense;
the
it2)
the
less
all the elements of
same or
than
greater
offense;
it3)
must be
the same
classas the
greater
of
generic
to
based
of risk
must differ from the
offense
degree
greater
upon
intent
Brown
or
of
or
grades
upon
culpability.
persons
property
504,
A trial court
State,
v.
325 Ark.
Here, murder, the crime charged, first-degree does not require circumstances extreme indif proof manifesting ference to value of life. human A acts “under circum person stances extreme indifference to value of human manifesting fife” when in deliberate conduct which culminates in engages the death of some Davis v. person.
S.W.2d General (1996). has stated Assembly specifically murder, that to the State need show that prove first-degree only caused the death of a appellant knowingly fourteen or person aged A acts younger. his conduct “knowingly” respect or attendant circumstances when he is aware that his conduct is of *13 that nature or that such exist. acts circumstances He “knowingly” with to a result of when is his conduct aware that it respect is certain that his conduct will cause such a result. practically Ark. Ann. Code 5-2-202(2) (Repl. 1997). §
The trial court’s was correct both because the ruling version of murder a is not lesser proffered second-degree included offense of murder under Ark. Code Ann. first-degree 5-10- § with which 102(a)(3), and also because the appellant charged, did information not him with death a under cir charge causing cumstances extreme indifference to the value manifesting of human life. murder Code Ann. Second-degree pursuant 5-10-103(a)(1) cannot be a lesser included offense of first-degree § murder under Ark. Code Ann. because that sec 5-10-102(a)(3) murder a that one ond-degree charge requires showing knowingly death caused the of another under circumstances manifest person life, extreme indifference ing to the value of human an element in addition the of the statute under which requirements appellant was charged.
While be an issue of first for this may impression court, the in Brown v. 929 S.W.2d analysis is Brown, instructive. In the (1996) who was appellant, of the lesser included murder and convicted
charged capital murder, on his conviction of offense felony appealed refused to the court have it was error for trial the ground the included offense of second-degree the lesser instruct jury conviction, that second- the This court affirmed holding murder. a offense of not lesser included capital felony murder is degree murder requires held that because second-degree murder. We murder, for of sec- an not proof felony element proof required mur- is not lesser included offense of felony ond-degree Furthermore, for a offense does where the indictment greater der. offense, the lesser contain all the ingredients not allegations sustained, even evi- of the lesser cannot be though conviction element. Id. dence missing may supply case, In instant the information charged appellant Davis, the death of Austin aged causing knowingly fourteen The additional knowingly years younger. language indif under circumstances extreme death manifesting causing information, and was to human life was not charged ference to sustain a conviction first- be order required proven there no Because was not so is murder. charged, degree with the lesser offense of basis to rational justify charging The trial court is affirmed on this murder. point well.
V. Rule 4-3 Review (h) has with Rule 4-3 record been In accordance (h), made but reviewed for adverse to objections rulings by appellant *14 and no such errors have been found. not raised appeal, Affirmed.
Brown, J., dissenting. The
Robert L. dissenting. majority Brown, Justice, was not entitled to an instruction holds today Byrd offered con murder because instruction he second-degree extreme tained the “under circumstances manifesting language Ann. value of human life.” SeeArk. Code 5- indifference § the first- 1997). 10-103(a)(1) According majority, (Repl. murder under which is for degree provision Byrd charged the death of a fourteen or knowingly causing person age younger. See Ark. Code Ann. Because this 5-10-102(a)(3) 1997). (Repl. § murder statute does not include the “extreme indiffer- clause, ence” concludes the murder majority second-degree instruction could be given.
The first
in the
is
the first-
fallacy
majority’s reasoning
murder subsection for
degree
also does not
purposeful
contain the “extreme indifference” clause. See Ark. Code Ann.
5-10-102(a)(2)
1997). Does this mean that the second-
(Repl.
murder instruction with the “extreme
degree
indifference” lan-
also cannot be used as a
guage
lesser included offense for pur-
fact,
murder?
not. In
poseful first-degree
we
held
Surely
recently
that a
instructed
with the
appropriately
second-degree
murder offense
the “extreme indifference”
containing
language
a lesser-included offense of
murder. See
purposeful first-degree
Greenv.
(2) A acts person knowingly respect to his conduct or the attendant circumstances when he is aware that his conduct is of that nature or that such circumstances exist. A acts to a result of his conduct knowingly respect when he is aware that it is certain that his conduct will practically result; cause such a
430 Com- The 1997). Original 5-2-202(2) Ann. (Repl. Ark. Code § underscores murder statute second-degree mentary point: engages causes a result when actor “knowingly”
An that his “it certain is practically with an awareness conduct The 5-2-202(2). See such a result.” conduct will cause § circum- to attendant regard of “knowledge” requirement is satisfied if the actor “is extreme indifference stances manifesting See, 5-2-202(2). circumstances exist.” . . . that such aware § B, Original Vol. 169 Ann. p. (Repl. Ark. Code Commentary, 1995). in our is used identical “extreme indifference” language
The Ann. 5-13-201 (a) (3) statute. SeeArk. Code battery § that the “extreme have held on two occasions We 1997). (Repl. relates to indifference” clause first-degree battery proof State, v. 319 Ark. mental of the accused. See intent or state Tigue v. 547 760 Martin (1994); 889 S.W.2d statutes The battery S.W.2d 81 (1997). commentary B, Vol. Ark. Code Ann. Commentaries, emphasizes point. Hence, for the to hold 185-187 1995). majority (Repl. pp. in the face of relate to intent flies prior the clause does not precedent. that because the General concludes majority illogically the “extreme indifference” ehminated language
Assembly fourteen or murder statute for those younger, the first-degree age instruction with com- it intended to out wipe I do not does that follow? Why necessarily parable language. Remember, it does. at that same session believe legislative the “extreme indifference” added language General Assembly four- statute for age murdering person part capital-murder Ann. 5-10-101(a)(9) teen or See Ark. Code (Repl. younger. 683 of 1997) (Act 1991). also cites Brown v.
The majority
but that case is
to bolster its
(1996),
argument,
clearly
S.W.2d
Brown, the defendant was
fel-
In
charged
capital
inapposite.
He
murder.
convicted
first-degree felony
ony
as error the failure of the trial court
instruct
asserted
*16
the same
murder instruction at issue in
second-degree
this case.
We drew the obvious distinction between
murder and
felony
intentional murder and held that
murder
second-degree
Thus,
instruction offered related to intentional murder.
it did not
as a lesser-included offense.
qualify
I
about the
Again, worry
ramifications of what we do today.
We abolish a
murder instruction for a whole
second-degree
pano
murder
ply
purposeful
offenses. It is
reversible
error not to instruct on a lesser included offense when an instruc
tion is warranted. See Moore v.
280 Ark.
656 S.W.2d
Brewerv.
(1983);
Larron Clark McDANIEL v. STATE of Arkansas
CR 99-166
Supreme delivered Opinion May