Green v. State

we cannot that the trial court abused say its discretion in reaching this conclusion.

Affirmed on direct affirmed appeal; cross-appeal. J., Brown, participating. Dale GREEN v. STATE of

Billy Arkansas CR 04-1379 231 S.W.3d 638 Court Arkansas

Supreme 9, 2006 delivered March Opinion denied [Rehearing April 20, 2006.*] grant rehearing. * Glaze,Dickey, would Gunter,JJ., Commission, Arkansas Public for by: Vaughn, Defender Janice appellant. Beebe, Gen., Shue, Gen., Mike Laura Att’y Ass’t for by: Att’y appellee. Donald L. Dale Green Corbin, Appellant Billy Justice. the and order of the judgment

appeals Randolph County Circuit Court him four counts of murder convicting capital one count of was sentenced to death on kidnapping. each count of murder and life capital count of imprisonment On raises seven kidnapping. appeal, Appellant reversal: arguments (1) trial court erred in motion for a denying Appellant’s directed verdict; State violated (2) constitutional to due right evidence; process disclose by failing the trial impeachment (3) erred Green by allowing Mary testify over against assertion of the marital (4) trial court erred privilege; by allowing evidence; State to and other bad acts present reputation (5) trial court victims, erred allowing hearsay in so confrontation; violated doing, Appellant’s right (6) trial its abused discretion in Kermit Channel’s allowing testimony; mistrial, the trial court erred (7) based grant failing upon State’s remarks As this case in- improper closing argument. during death, to Ark. volves a our sentence jurisdiction proper pursuant that the trial court committed Ct. R. We find 2(a)(2). Sup. 1— and other reversible error in State allowing present reputation evidence, trial. bad acts and remand case for new son, 30, 1998, Lisa and her On six-year-old Elliott July Dalton, were found dead at their home in Arkansas. Both Gregory, had been killed and blunt-force injuries. by multiple sharp-force time, husband, Elliott, At and their Lisa’s Carl eight-year-old 1998, Felicia, On Carl’s body daughter, missing. August in the Eleven Point An ruled his was found River. floating autopsy homicide, death a as a result of two .22 caliber wounds to gunshot head, with wounds to his neck. after Carl’s cutting Shortly found, Green, sons, was Chad and became body Appellant’s Jason in the murders. Felicia’s remains were found two suspects later, years 7, 2000, on Mud in the Warm Creek September Springs a half a area about mile from home at the time. After Appellant’s found, Felicia’s remains were also became Appellant suspect because of the close of the remains to his home. proximity

In and Chad were arrested on an July Appellant 29, 2003, informant, unrelated matter. On a confidential later July Green, identified as went to the a statement. Mary police gave 29, 1998, She that on the reported evening July Appellant Chad, house, received a call from left the several was for gone hours before She also told that about two returning. police years murders, after the told her that he had met Chad to help him clean the murders. She also stated that on more than one up murders, occasion told her that Chad had committed but that Chad had told her on more than one occasion that committed the murders. 3, 2003,

On with four counts August charged murder for Elliott murders and one count of capital 9, 2003, On Chad a statement to the kidnapping.1 August gave his father in the murders. For at police implicating testifying trial, deal, Chad received a where he would be murders, sentenced to for the run twenty years consecutively of Felicia. twenty years kidnapping that, trial, 29, 1998, At Chad testified on the evening ofjuly Carl Elliott came to his house. Chad then called Appellant, charged intimidating charge was also with one count of a witness but that was subsequendy dropped. had instructed him to if ever came Carl by. Appellant went to Appellant house, but had left the time he arrived. Chad’s Carl and Chad smoked Appellant methamphetamine, Appellant drank the remainder after he had it coffee. As into some dumped house, were told his Chad’s Chad to they leaving Appellant grab .22 rifle and went for a ride Dalton. Pursuant to they instructions, home, went to the Elliott told he was Chad Carl trouble, car him and had Carl drive down to the river. having testified Chad that when to where they got Appellant waiting, started Carl and “where’s stuff?” Carl Appellant beating asking my was, told knew where it to which Appellant only daughter “I told I’d kill then shot Appellant replied, you you.” Appellant Carl, Next, and as Chad was he heard another shot. turning away heard Chad that he never had a knife when he Appellant say needed one. He then told Chad to the car and back go up “[t]ake house.” house, When to the Elliott went in. they got up Appellant car, heard Chad out of the and saw yelling, got Appellant hitting Lisa with a bar or Chad testified that told something. Appellant car, him to back in the and when he turned around he saw get Then, blood and noticed a little on the floor. boy’s body lying came out of the with Felicia house in a blanket Appellant wrapped her in the trunk of the car. Elliott’s Chad testified that he put could see and she was around.” told “just legs moving Appellant river, Chad to drive back to the where Felicia’s Appellant taped mouth, and hands before her in the bed of his truck. legs, putting drove to Chad’s house where Felicia in the They Appellant put shed, can, in a trash with the and his coat. The next gun day, fuel diesel which he and Chad bought used to burn the Appellant and clothes. then removed Felicia from the shed and gun Appellant drove with Chad towards the Green home. took family area, Felicia into a wooded and returned to the truck without her. told to burn the Chad blanket and the tape.

In addition to Chad’s other members of the testimony, Green testified that Chad not home on family murders, them, of the Elliott but that night told asked, if were ever was home. they Willie say everyone that, Moffitt Scott also testified while he was in the Craighead made several re- County remarks Appellant, Appellant Jail the murders and that shouldn’t have done it.” garding just “[w]e above, convicted as set forth and this followed. appeal

I. theEvidence Sufficiencyof First, the trial erred in Appellant argues denying his motion for a directed verdict. claims Specifically, Appellant that a close of State reveals reading testimony presented by that the to the direct evidence Elliott only linking Appellant Green, murders came from Chad an accomplice. Appellant points out that Chad’s must be corroborated other evidence testimony crimes; however, sufficient to connect to the enough maintains that the other only possible corroborating evidence came from a snitch” Scott Moffitt. “jailhouse claims that this court must examine Moffitt’s in a testimony manner similarto how we review such that accomplice testimony, alone, Moffitt’s must be substantial testimony standing enough, connection to the murders. independently prove Appellant’s record that the reflects raised in con- only arguments Appellant nection with his motion for directed verdict on both the and the centered on the capital-murder charges kidnapping charge of the evidence and whether the met its sufficiency with State burden did not corroborating accomplice testimony. Appellant make an that the court should a new standard and argument adopt corroboration for of a snitch.” require “jailhouse This court has held that are repeatedly appellants precluded from that were not first to the raisingarguments appeal brought State, See, 311, attention of the trial court. v. Ark. 362 e.g., Flanery State, 1, 208 S.W.3d 187 v. 361 Ark. (2005); 203 S.W.3d Phillips State, 67, Marta v. (2005); 336 Ark. 983 S.W.2d 924 (1999). Issues raised for the first time on be will not considered appeal because the trial court never had an to rule on them. opportunity State, 313, Thus, Londonv. 354 Ark. 125 S.W.3d 813 (2003). because did not below that the of a argue snitch” needs to be examined under a “jailhouse standard similar to that used for it cannot be corroborating accomplice testimony, raised on appeal.

We now turn to that that was part Appellant’s argument for our It review. is well settled that we treat a motion preserved for a directed verdict as a to the challenge sufficiency State, 506, evidence. Gardnerv. Ark. 221 S.W.3d 339 (2006); State, 545, v. 357 Ark. 182 S.W.3d 485 The test Jones evidence is whether the verdict determining sufficiency evidence, substantial direct or circumstantial. Id. supported by Evidence is substantial if it is of sufficient force and character to reasonable minds to reach a conclusion and compel beyond pass we the evidence in Id. On view conjecture. appeal, suspicion State, that evi- most favorable to the only considering light that a dence that the verdict. Id. The requirement supports extends to defendant make a directed-verdict motion any specific of the evidence sufficiency corroborating challenge 339; Gardner, 221 S.W.3d testimony. accomplice’s Ark. 773 (2005). Tillman v. 217 S.W.3d earlier, murder As stated was convicted of capital Ann. 5-10-101 (a)(4) 2005) Code (Supp. kidnapping. § states, in relevant part: (a) A commits murder if: person capital (4) With the and deliberated premeditated causing purpose the death of another he or she causes the death of person, any person[.] states, Ann.

Ark. Code in relevant 5-ll-102(a)(4) 1997) (Repl. part: § if, (a) A commits the offense of without person kidnapping consent, he restrains another so as to interfere substantially person with his of: liberty purpose him, (4) or of in Inflicting injury sexual physical upon engaging intercourse, deviate sexual or sexual contact with activity, him[.] When considered in is testimony accomplice reaching verdict, Ark. Code Ann. 16-89-111 (e)(1) 2005) (Supp. provides: §

A(A) conviction ... cannot be had in case of any felony upon of an . . . unless corroborated other testimony accomplice evidence to connect the defendant... with the commission tending of the offense. The if

(B) corroboration is not sufficient it shows that merely the offense was committed and the circumstances thereof. Corroboration is not sufficient if it establishes that the offense merely Gardner, 506, and the was committed circumstances thereof. 364 Ark.

487 339; State, 198, 221 S.W.3d Martinv. Ark. 346 57 S.W.3d 136 (2001). It must be evidence of a substantive nature since it must be directed toward the connection of the accused proving with a crime and not directed toward Id. The corroborating testimony. accomplice evidence need not be sufficient corroborating alone to standing conviction, must, sustain the but it from that of the independent tend to connect to a substantial accomplice, the accused with degree Gardner, 506, 221 commission of the 339; crime. 364 Ark. S.W.3d State, 203, Rhodes v. 276 Ark. 634 S.W.2d 107 The test is (1982). whether, if the elimi accomplice completely case, nated from the the other evidence establishesthe independently crime and tends to connect the Gardner, accused with its commission. 506, 339; Marta, 364 Ark. 67, S.W.3d 983 S.W.2d 924. evidence be corroborating circumstantial so as it may long substantial; evidence that raises a merely is insuffi suspicion guilt cient to corroborate an State, Gordonv. accomplice’s testimony. 90, mind, S.W.2d 91 With this standard in we now look to the case. present Here, after Chad, eliminating accomplice testimony

there is sufficient evidence to convictions.2 support Appellant’s evidence, other Specifically, when viewed in the most favorable to the light established the crimes and First, connection to them. evidence was presented established that the Samons, Elliotts’ deaths were homicides. Rob Sheriff,3 Randolph County testified that on July Road, Dalton, dispatched Arkansas, Township to a response someone had found report their dead daughter on their front porch. Samons found the Upon arriving, body Elliott home, inside the Gregory Elliotts’ and Lisa Elliott on the front of a porch Huddleston, mobile nearby home. Steve Arkansas State Police testified that he Investigator, was the leader team that found a investigation tire tool with blood on it in the Elliotts’ children’s Peretti, room. Dr. Frank an associate medical examiner at the Arkansas State Crime testified Laboratory, challenges the of various challenges, Appellant admissibility testimony. Despite this court still consider reviewing may of the evidence. testimony See sufficiency (1998) v. 331 Ark. 334, 962 S.W.2d335 (holding that we consider evidence both Sanford admitted). and properly improperly 3 Samons is Highway Arkansas Police, but was the sheriff at currently employed by the time the murders occurred. that the deaths were and Lisa revealed that the homicides, Gregory autopsies inju- blunt-force sharp-force caused by multiple could have Furthermore, of the wounds he stated that some ries. Second, that testified Samons the tire tool. caused by been in the 1, 1998, Elliott’s body floating found Carl August deputies homicide, from two resulting ruled Carl’s death river. Dr. Peretti on the neck. wounds to the head with cutting wounds gunshot 7, 2000, Elliott’s Felicia Third, that on testified September Samons area in the Warm found on Mud Creek Springs remains were bones lived. Felicia’s mile from where a half a Appellant about area, her death Dr. Peretti ruled were scattered throughout Channel, Furthermore, Kermit means. a homicide by unspecified Arkansas State Crime Laboratory, with the a forensic biologist car was trunk of the Elliotts’ DNA found in the testified that establishes the crimes. Felicia’s. This testimony clearly links to the commis- evidence Further specifically Appellant testified that on of the Green these crimes. Members family sion of and, 29, 1998, call from Chad received phone July Appellant thereafter, a mess. Chad clean Mary left to up had go help shortly her check testified that the next day go Green also Appellant there, house, that he was not and when she on Chad at his reported asked, to that was told her that if she was say to work. that was too sick to come home all Chad night Jason asked, that, if he was told him say testified Green him and was at the house on including July everyone of the murders Chad testified that on night Chad. Green Joshua after the father left to Chad not at home and that his go help Green, call came in. Additionally, phone Jamie work, 1998, while he was at testified that in nephew, if he ever said about him and told anything him approached the Elliotts, hurt. This evidence connects he would get Chad’s testimony. to the crimes and corroborates sufficiently the State from the Green family, In addition Hart Elliotts’ relatives. Elliott from the Kathy presented murders, that, she had a conversation with testified prior he had stolen ten and reminded him that marijuana plants Carl she had discussed with further testified that from She Appellant. the theft to that he had confessed Carl fact Appellant. John Hart, husband, the theft that he had discussed also testified Kathy’s murders. and confession with Carl in the weeks preceding Furthermore, two months testified that Crommie Dewayne murders, asked to borrow him and Lisa before approached $10,000.00 Also, for Carl’s bad debt to the Greens.4 Melvin Cox testified that two before murders he was out aof days coming store and saw a He stated: group people having argument.

I was out of Price coming after and Chopper getting groceries then there was a there group right front doors and people by were they and it was heated having argument and getting pretty up the, one of the Green the little the hand and I boys boy by heard about them “Where’s husband at?” And I something saying, your startedto walk on but I couldn’t and then I get asked through if, know, Ms.Elliott if you she needed and me any help told to they shut, well, mouth my keep basically my mouth shut. keep fucking . . . in they face and then all of a got my sudden the Green father them, came out of the lot and told parking “This ain’t the to place this,” be doing to their assesin the get car[.] This evidence demonstrated that with Carl Appellant angry because of the theft of his marijuana plants, thereby establishing Moreover, motive for the crimes. while the State is not required motive, evidence of present evidence tends to connect Appellant crimes. Scott Moffitt testified that he was cell Lastly, mates with in the Moffitt Appellant stated that he and Craighead County Jail.5 about a murder Appellant got case talking a vehicle involving and that told him that he had Appellant been arrested for four counts of murder. Moffitt testified that told him he did not think the could out of an police get anything car impounded because cleaned it out so Moffitt “they also stated that good.” they “ about got talking told him that guns, used ‘[w]e ” rifle, a .22 that’s what we used.’ long Moffitt also testified that told him the would never find the police because gun in the they looking Moffitt testi- wrong spot. Additionally, fied that told him about the little that her bones girl “ were scattered out over an area. told Moffitt just ‘[w]e ” shouldn’t have done it.’ Moffitt further testified that Appellant Barber, Randy Randolph County Deputy, Sheriff Randolph testified that in $1,000.00. County, healthy, marijuana plants mature are valued at about 5 The leniency State did not offer Moffitt exchange testimony. for DNA and that their clothes because of him that he burnt told made over Moffitt Appellant killed the family drugs. explained “ said, don’t his hand and ‘Ifyou with right gesture pistol-shaped ” man, ass is took down.’ the dope your pay trial, review, at without the testimony presented Upon that the crimes establishes the use of the testimony, accomplice crimes. Conse and connects to those were committed err in motion the trial court did not denying Appellant’s quently, for a directed verdict.

II. Failureto Disclose Evidence Impeachment on that the For his second argues argument appeal, Appellant for its failure his constitutional to due State violated right process informant evidence agree- to disclose regarding impeachment v. 373 U.S. 83 (1963). ments Brady Maryland, Specifi- pursuant to disclose docu- maintains that State failed cally, Appellant for a mentation Moffitt’s bargain concerning negotiations plea and that the could have been used for impeachment purposes of a full to evaluate State’s actions jurors deprived opportunity the record indicates of his A review of credibility testimony. that this was not raised below. argument trial, related to

Prior to filed motions multiple filed a for disclosure and motion discovery. Specifically, for informants and motion concerning discovery, disclosure of inspection evidence, and motion to exculpatory require reveal about witness that State “to information any prosecution 16, 2004, could influence his On conceivably testimony.” January motion, hut advised the State that the trial court denied the latter a, if make kind of if “there is a or some quote, plea negotiation you deal, witness that’s not another charged exchange unquote, to reveal that to me for testimony, you’re opposing motions, In two and the counsel.” other regards the information in State exchange writing. agreed 2004, filed In the State disclosing responses April conviction in Moffitt had a recent Craighead County, felony drug convictions, After and that he was other currently parole. past disclosure, to the trial never raised an argument stated, As court that violations occurred. any discovery previously See, raised before the trial court. this court cannot review issues not 1, 187; Ark. 208 S.W.3d Phillips, e.g., Flanery, 630; Marta, 983 S.W.2d 924. Conse- 203 S.W.3d second is not argument preserved appeal, quently, Appellant’s it. and we will not address

III. Marital Privilege his third claims that trial For argument, Appellant him over his erred in Green to allowing Mary testify against of the marital and over his numerous assertion objec- privilege, tions. Ark. R. Evid. 504 provides, part: A if it is made (a) communication is confidential Definition. her not intended for to his or and is by any person spouse privately disclosure to other any person. (b) GeneralRule An accused in a criminal Privilege. proceed- has a to from as to

ing any privilege prevent spouse testifying confidential communication between the accused and the spouse. rule, Under this statements made one to the other that are spouse for the an alibi are intended for to establishing purpose publication State, 424, and are not confidential. v. 360 Ark. investigators Ridling State, 53, 203 S.W.3d 63 v. 307 Ark. 818 S.W.2d 242 (2005); Findley Furthermore, a direction to another to com- (1991). spouse’s spouse a fabricated to the is intended for to disclosure story municate police a third and is not a communication to the party privileged subject 424, of Rule 504. 360 Ark. 203 S.W.3d 63. protections Ridling, Moreover, Ark. R. Evid. 510 provides:

A whom these rules confer person upon privilege against disclosurewaives the if he or his while holder privilege predecessor of the voluntarily disclosesor consents to disclosure of privilege any significant matter. This rule does not if part privileged apply the disclosure itself is privileged.

Therefore, if the same information is disclosed protected by privilege State, to a third is waived. Barrett v. person, privilege 119 S.W.3d 485 v. (2003); S.W.3d Dansby mind, With this standard in we now look to the case. present Here, does not out which of Appellant specifically point admitted, he statements claims were but rather Mary’s improperly refers the court to a section of within the record. Mary’s testimony

In its to out four State response Appellant’s argument, pulls statements made that it feels is by Mary challenging. Appellant testified that while was on the (1) Mary phone Chad, minute; he be there in a said would was (2) Appellant leave, about to he said he was clean Chad going go help up mess; home; said he was to Chad’s (3) (4) going whereabouts, next asked her about Chad’s morning, Appellant asked, then said that if she was “was home all say and that Chad said “he was too to come to work.” sick night” review, it clear that the trial court did not

Upon abuse its discretion by overruling objection First, above statements. statement was made one by Appellant while Chad on the Chad speaking phone. and, therefore, statement was not made to does not fall Mary within marital communication In to state any privilege. regards three, ments two and the State evidence that other presented Green members heard that he had to family say go help confidential, Chad. Because these statements were not do not they constitute communications. statement four was protected Lastly, to have fabricate a as to attempt Mary story Appellant’s Chad’s whereabouts. told to state Specifically, Appellant Mary those if she was about their whereabouts. things questioned Because statements were intended for to estab Mary alibi, lish an were not Because none of the they privileged. statements fell within the marital communication privilege, trial court did not err in about those allowing Mary testify statements.

IV Bad Other Acts Evidence Reputation For his fourth on claims that the argument appeal, Appellant trial court erred State by allowing present reputation other bad acts evidence. that the Specifically, Appellant argues witnesses, of six who were allowed to over his testify thus a new trial. The objections, State contends that highly prejudicial, mandating failed to these preserve specific We as the record reveals that arguments appeal. disagree did to the introduction of some of this object the trial. throughout

Nevertheless, the issue of whether these arguments outset, that, has no on this case. At the we note preserved bearing case, this is we are bound Ark. P.- R. death-penalty by App. 258, 276, Ark. in Newman v. As we Crim. 10. explained 438, 450 (2003), 106 S.W.3d in Procedure-Criminal 10 provides, Rule of Appellate Arkansas shall consider the Arkansas Court that the Supreme pertinent part, death its review of mandatory in conducting issues following 1,2001: on or after August sentences imposed death is review. Whenever a sentence of (b) Mandatory in review the issues following Court shall Supreme imposed, issues, enumerate may if that a defendant any, addition to other and determine: The Court shall consider on appeal.... failed in its to inter- obligation whether the trial court (iv) correct a serious error admoni- by vene without objection mistrial; tion or declaring the trial court erred in to take notice of

(v) fading whether error that affected a substantial right an evidentiary defendant; 10(b) (2002).

Ark. P.-Crim. R. App. all we have reviewed 10(b), As R. P —Crim. required App. to at trial. Our those statements objected testimony, including trial court committed serious error when it review reveals that the the State to introduce permitted following testimony, pursuant Ark. R. Evid. 404(b).

Rule 404 provides, part: Evidence Generally. Character Evidence of a charac- (a) person’s for the of ter or a trait of his character is admissible purpose therewith on a that he acted in conformity particular proving occasion, except: (1) Character accused. Evidence of a trait of pertinent same; accused, or to rebut the by

character offered by prosecution crimes, Crimes, Other or Acts. Evidence of other Wrongs,

(b) not admissible to the character of a prove person or acts is wrongs, 494 order to show that he acted in therewith. It conformity may,

however, motive, be admissiblefor other suchas purposes, proof intent, opportunity, preparation, or ab- plan, knowledge,identity, senceof mistakeor accident.

Rule introduction of 404(b) of other criminal “permits issue, if it is, is relevant activity to main independently relevant in the sense of some material rather tending prove point than State, that the defendant is a criminal.” v. merely prove Spencer 230, 236, 461, 348 Ark. 72 S.W.3d 464 is State entitled act, evidence circumstances which produce showing explain show a motive for the or illustrate the accused’sstate killing, of mind. State, 187, Barrettv. 354 Ark. 119 S.W.3d 485 (2003). Consequently, crime, “if the evidence of another or act is relevant to show wrong, that the offense of which the is accused occurred appellant actually character, and is not introduced bad it will merely not be prove State, 180, 198, 163 333, excluded.” Andersonv. 357 Ark. S.W.3d 342 State, 468, 473, (2004) 801, Smithv. 351 Ark. 95 (quoting S.W.3d 804 (2003)).

However, even if evidence is relevant to Rule pursuant Ark. R. Evid. 404(b), 403 that “evidence be ex- provides may cluded if its value is probative substantially outweighed by issues, of unfair confusion danger the or prejudice, misleading or time, considerations of undue jury, waste of or delay, needless of cumulative evidence.” The presentation State is not entitled to introduce evidence of other offenses to persuade that the accused ais criminal and to commit the crimes likely State, he has been 809, with. v. charged 263 Ark. 569 Hickey S.W.2d 64 (1978). of other crimes Specifically, is never “proof admitted when its is to show that the only relevancy is a prisoner character, man of bad 810-811, addicted to crime.” Id. at State, at 330, 333, S.W.2d v. 223 Ark. (quoting Alford 804, S.W.2d In (1954)). with issues dealing relating admission of evidence to Rule a trial pursuant 404(b), court’s is entitled to and this ruling great court will not reverse weight Anderson, absent an abuse of discretion. 357 Ark. 163 S.W.3d 333; Barnesv. 55 S.W.3d 271 (2001). With this mind, standard in we now look at the following testimony.

A. Elliott Hart Kathy The first claims was allowed improperly brother, Carl, Elliott Hart’s. testified that her Kathy Kathy Martin, her Shane stole nephew, Appellant’s marijuana plants. to be around brother was afraid for her testified that she also Kathy after the died her mysteriously because the Greens nephew and moved this statement to immediately objected theft. Appellant motion, mistrial but trial court overruled a mistrial. The offer, a but instruction. accepted a Appellant offered limiting further at that time. Kathy was not instruction given limiting brother around Greens did not want her testified that she was involved stealing Appellant’s she knew Carl because a and an further objection After testimony marijuana plants. issue, renewed his objection hearsay Appellant for mistrial. The and also renewed his motion Martin’s death about instruction, a asked if wanted limiting trial court again “I don’t know yet.” but this time responded, issue after the revisited this court again time, offered a At that the trial court limiting Hart. John to a link been nothing instruction that “there’s absolutely prove” and that “it was and Martin’s between disappearance, Hart.” fear on behalf of Mrs. elicited for the fact to show only it would be the basis that he feared declined offer on more prejudicial. that the trial court it is clear reviewing testimony, Upon First, Mrs. Mrs. Hart’s testimony.

abused its discretion admitting her belief and alluded to Hart’s statement was clearly prejudicial in Martin’s murder and role disappearance. Appellant played statement, Second, even if admonition could have cured this no curb the state- had intervened and the trial court attempted effect on the This statement was only ment’s jury. prejudicial committed the irrelevant to the issue of whether but also fact, In it was more than an Elliott murders. nothing attempt was a bad person. prove when an error A is a drastic to be used only mistrial remedy the trial cannot be served is so justice by continuing prejudicial cured an instruc- statement cannot be and when prejudicial State, The trial 340 Ark. 10 S.W.3d 449 (2000). tion. v. Jones whether the sound discretion to decide grant court has mistrial, absent a and this decision will not be overturned showing Id. or manifest complaining party. of abuse prejudice upon if a remark is the trial court may deny even Additionally, improper, cure the mistrial motion and by issuing any prejudice Smith, 468, 95 the remark. admonishment to disregard 801; 727 S.W.2d 851 v. S.W.3d Dandridge Moreover, could have been “where the prejudice possible court, cured the trial court admonition this has found no by by abuse of when defense has refused discretion counsel the trial State, court’s offer of a curative such instruction.” v. 343 Ferguson 159, 177, Nevertheless, 126 S.W.3d there are instances where a statement is so that an admonishment prejudicial 529, 537, could never cure. See Moore v. S.W.2d that the (1996) (holding testimony unresponsive that he had admitted killed another woman was so appellant that it not be cured could an admonition to the prejudicial and the trial its denial court abused discretion in its of a motion mistrial “in the such a face of patently inflammatory prejudi- cial Because of the nature and attached to statement.”) prejudice statement, Mrs. Hart’s we find trial that the court abused its discretion when it failed motion for mistrial. grant warranted, determined that a mistrial was we

Having now turn to the of other statements that are admissibility to be an likely issue retrial. during Appellant’s

B. Green Joshua Second, Green’s argues was testimony Joshua allowed. claims that improperly Specifically, Appellant Joshua’s that his dad been testimony on outside of the law always and had abused him from the he was time a child was physically character evidence. improper During testimony, Appel- Joshua’s lant made a Rule 403 the basis objection prejudice from the resulting testimony going substantially outweigh value it have. The any probative trial overruled the might as to objection bad acts “in that it is prior in under specific coming with the of 40[4](b) control which is the concept major part their case. . . . value will far probative any outweigh [t]he effect.”6 In the State prejudicial introducing testimony, sought to demonstrate that abusive and Appellant’s behavior controlling in the commission of the murders. played part Specifically, State that “the control that had over argued his family [Appellant] none of them ever came until he explains why police got arrested. It Chad did what did.” why he The trial court explains took this into consideration and overruled Appellant’s objections review, we find the trial court abused testimony. Upon its discretion in alio “control” wing because it is Joshua’s not relevant evidence.

6 The gave trial court a continuing objection also on these acts. it because was admissible evidence that the claim The State’s rather to but abused his family, offered was not prove First, merit. has no over family, he had the control show four with was charged in this case. is not an issue control Therefore, control murder and kidnapping. counts capital independently had over family not have or may may Second, the State’s the crimes. he committed to whether relevant as related credibility deals more “control” argument Joshua’s than guilt. rather forward in coming to his delay and, as of Rule 404(b) a witness is not subject credibility bad acts. of other such, the basisfor allowing cannot be father was outside that his statements Finally, Joshua’s more him were abused and that the law Appellant physically was note that must Appellant than We again probative. prejudicial and the the Elliott kidnapping the murder of family with charged to commit Felicia, member of his family with a not ordering therefore, at trial. not a main issue crimes; control was these was that Appellant statements painted picture Joshua’s true, it was not this was or abusive father. Whether a controlling, case. relevant to Consequently, not present independently under this testimony its discretion in admitting trial court abused 404(b). Rule AmberGreen

C. was claims improperly third testimony Appellant to Amber’s that of Amber Green. objected allowed is Appellant mother, and her to her brother her dad was abusive that testimony and told her her mother’s head held a and that he had once gun trial, to the State’s her objected During Appellant “say prayers.” abuse, it constituted her father’s claiming regarding questions trial court overruled bad acts. The testimony prior improper as with testimony, under Rule 404(b). objection Joshua’s Just relevant to as Appel allowed Amber’s testimony being trial court above, the trial As noted control over his family. lant’s Amber’s in “control” testimony. its discretion allowing abused made and were as asthose byjoshua, arejust statements prejudicial basisfor allowing was no relevance or allowed. There improperly was abusive and controlling. continual testimony Appellant D. Chad Green statements, that Fourth, claims that Chad Green’s Appellant with smoke for him to methamphetamine it a common thing was him and that made do other he did not Appellant Appellant things do, steal, want to such were allowed. improperly Although review of the record did reflects not make a Appellant Chad’s statement that he com- contemporaneous objection smoked we will monly exam- methamphetamine Appellant, ine the statement for and error as Rule prejudice required by The trial court Chad’s about 10(b). allowed testimony steal him to under Rule as the forcing allowed 404(b), court had just Green control

prior family Appellant’s family. review, the trial court erred in both

Upon allowing First, statements. Chad’s about smoking methamphet amine had no relevance to the State’s case that independent Rather, committed the murders and it kidnapping. — demonstrated that awas user that was drug subject Second, not an issue in this case. Chad’s statement about specific do, his father him do he did making not want to such as things steal, was not relevant. the issue of Chad’s Specifically, stealing under direction is not relevant. These two statements demonstrated that merely control over Chad and that he was a trial, bad father. We note that Chad not on such, As was. there was no valid reason to allow the statements. Therefore, They prejudicial probative. the trial court abused its discretion the statements. allowing

E. Green Mary Fifth, that maintains Green’s was Appellant Mary testimony also admitted over his improperly objections. to a Appellant points series of statements that he deemed be to Mary’s in prejudicial nature, such her (1) as about an abusive testimony Appellant being father; husband and did (2) that she not much attention to pay trouble; business would because it her in Appellant’s just get that (3) she was figured involved with the Elliott Appellant murders; she that had been to (4) the going police thirty years to from get (5) that she knew more protection Appellant; things about him but not could tell the and that since jury; (6) Appellant’s arrest she had been safer than she ever been since him meeting but she still that he felt would to her like he said get always would. A of the review record reflects that did not make Appellant two, four, five, to statements and contemporaneous objection and that the court trial ruled in favor of Appellant’s speculation Nevertheless, examine we will still three. to statement objection 10(b). and as Rule error all statements for required prejudice one, two, involve testi four Statements Mary’s court abuse. The trial to and mental as mony Appellant’s physical it was that the over objections allowed testimony, Appellant’s the because outside the of Rule 404(b), character evidence scope issue in went the control factor that was major statement to abused trial court trial. As with other Green family testimony, was Addi that admissible. its discretion in ruling was reflected belief statement three tionally, Mary’s Appellant be relevant with murders. While this statement may involved crimes, the court to whether committed properly as Furthermore, statement Appellant’sspeculation objection. granted should have in five was so prejudicial stepped a mistrial. Mary’s either issued an admonishment or granted to was clearly reference her further knowledge more it amounted to than because nothing speculation prejudicial no her as There was basisfor allowing on to guilt. part it not been allowed. this and should have trial last court erred Lastly, allowing Mary’s statement, that safer was After she feels since arrested. mistrial, statement, that the moved for a arguing too was under Rule as it was 404(b) statement inadmissible ruled that The trial court what “basically prejudicial Appellant. is her and he rehabilitated her happened you impeached on.” she went and on and The court overruled the objection, her and offered a instruction advise the jury limiting disregard however, instructed, redirect The was never testimony. have the chose not to instruction limiting given. irrelevant, however, because lack of instruction limiting admonishment or curative instruction could have cured effect of this statement. statement was prejudicial Mary’s improper and unrelated case State’s any against Appellant. portion case, than relevant to the final statement Rather Mary’s being the he was labeled as to because again highly prejudicial Appellant sum, statement, In would abusive and violent husband. the that he would, to her like said he admitted he get always improperly Rule and the trial court abused discretion under its 404(b), this statement. allowing Willie

F. ScottMoffitt claims that Scott statements made Mof- Lastly, Appellant fitt his and during highly prejudicial improperly that the allowed. trial court sustained Appellant argues although most of his objections Moffitt regarding insinuating questions, blurted out answers during testimony. Consequently, jury was left with the that was an impression Appellant extremely dealer, violent who had threatened to kill and drug Moffitt had beat Moffitt two occasions. also out that up Appellant points Moffitt went so far as to state that if was on he would jury convict Appellant.

With about that regard question methamphetamine claims left the with the that he was a Appellant jury impression dealer, at trial and the drug objected State moved on to Appellant another to Moffitt’s other question. Additionally, objections about and Moreover, statements threats violence were sustained. Moffitt’s statement that “beat me down twice” was Thus, elicited on cross-examination. these statements do not constitute reversible error.

As Rule we have reviewed all required by 10(b), Moffitt’s statements. one statement warrants further Only discus —sion I was on the I’d convict him.” This statement jury, “[i]f cross-examination, was made during Appellant’s motioned a mistrial. trial immediately for court overruled the motion on the that counsel ground invited halfway this. asked for an admonition and the trial court granted one as it that comment showed bias. The trial acknowledged informed the judge should and take no jury they “disregard about what Mr. Moffitt thinks should or should thought out that statement happen,” was not specifically pointed evidence be considered. claims that the admonition to was not sufficient and that a new trial be must granted. relies Shroederv. upon Johnson, 234 primarily S.W.2d 570 his basis (1962), that the maintaining only remove from way resulted this statement is prejudice However, a new trial. grant reliance unmerited. Shroeder, In this court reiterated that there are: a classof caseswhich so present argument remarks flagrantly . . . commendableeffortsof the prejudicial trial judge

501 event, In be such unavailing. them will the evileffectsof eradicate then, the notwith- to remove onlyway prejudice, new trialisthe the jury instructed have ... emphatically the standing judge may statements. the disregard prejudicial Co. Kansas Southern 449, Ry. at City Id. at 352 S.W.2d 573 (quoting There, 428, 256, 259-60, the 429 (1905)). 85 S.W. 74 Ark. v. Murphy, the that certainty could not on to that it “say court went explain were not.” . are less sure that . . but we they jurors prejudiced Moreover, Shroeder, at the court at S.W.2d 573. admonition and the court’s that the reference was improper explained referred, and sheet’ not what to whom the “did tell the ‘rap jury have been even the would if it done so prejudice probably There, trial court erred in concluded that the Id. greater.” the mistrial. granting case, situation In are faced with a different the we present Here, in Moffitt stated kind of than Shroeder. and different remark trial if he the that he convict was on jury. would that instructed them admonition court made a specific or should not Moffitt thinks should what disregard ignore instructed the jury “disregard The court specifically happen. defendant, that innocence of the that last about or statement guilt be This admonishment is not evidence to considered by you.” have resulted from sufficient to overcome may any prejudice statement, of the other evidence in presented especially light such, did not abuse its discretion As trial court by jury. the motion for mistrial. the admonishment and denying giving V. Clause Confrontation is that the trial court fifth on appeal argument victims, and in so erred allowing hearsay his to confrontation. violated doing right Specifically, Appellant Crommie, Hart, contends that the of Dewayne Kathy each violated to confrontation because Hart they right John victims, made to them two of Lisa testified about statements and Carl Elliott. While the record reflects objected their he now admission to these statements argues hearsay, the Sixth Amend- was a of his confrontation under right violation it not raised below. ment. is barred because was This argument an there must be To argument appeal, preserve is sufficient to court of in the trial court that apprise objection v. error Vanesch particular alleged. S.W.3d 196 This court will not address raised arguments the first on for time Id. a cannot appeal. Additionally, change party the for or motion on but is grounds bound objection by appeal Thus, the and nature of the made at trial. Id. even scope arguments a constitutional such as a Confrontation Clause argument, argu ment, is waived if it is not to the trial court. Echolsv. presented State, 917, denied, 326 Ark. 936 S.W.2d 509 cert. U.S. (1996), 520 1244 (1997). case, the

In present objections the basis of and he never raised a hearsay, claim or under objection such, the Confrontation Clause. As his is now barred argument from review.

VI. Kermit ChannelTestimony For his sixth that the argument, trial court Appellant argues its abused discretion in the of Kermit allowing Channel. to Channel’s Specifically, objected testimony regarding conclusion DNA found in blood taken from the trunk of the Elliotts’ car matched Felicia’s DNA. His carpet objection stems from his claim that the State failed to establish chain proper car, such, of of the Elliotts’ and as the custody results of evidence car, i.e., DNA, from was inadmissible. This court has held that the of consistently estab- purpose of chain is to lishing of custody introduction prevent evidence that been has with or is not authentic. Goodwin tampered State, 161, v. 697, 342 Ark. 27 S.W.3d 397 338 Ark. (2000); Dansby, 403; State, 388, 1 S.W.3d Criscov. Ark. 328 943 582 S.W.2d (1997). While State is not to eliminate required every possi- evidence, of with the bility trial court be tampering must satisfied within reasonable that there has been no probability Id. Minor uncertainties in the chain tampering. of of proof custody are matters to be counsel and but argued by by weighed jury, do not render evidence inadmissible they as a matter of law. Goodwin, 161, 397; Crisco, 388, 342 Ark. 27 S.W.3d Ark. 943 328 Moreover, S.W.2d 582. chain proof custody items like blood needs to be more than interchangeable for conclusive 697, 403; other items of evidence. 338 Ark. S.W.3d Dansby, Crisco, 388, Nevertheless, 328 943 S.W.2d 582. the mere (cid:127) blood, of access to where there no possibility is evidence of is not to render test results from that tampering, enough blood inadmissable. 338 Ark. 403. in Dansby, S.W.3d Lastly, this, matters such as the trial some given degree we in absence of evidence indicating tampering, discretion an abuse discre- trial court’s absent will not reverse the ruling With 754 S.W.2d Gardnerv. tion. mind, situation. in we now look present its Here, trial court did not abuse it is clear that the and, was satisfied that the chain of custody discretion finding DNA evidence. thus, about the Channel testify allowing this chain. establishing State adequate presented Jeff that, 20, 1998, he the Elliotts’ towed testified on July Winebaugh itself The car was initially to a locked lot. placed car impound in the locked, but outside locked enclosed in a placed garage, call received a the next after the lot company day impound it as it was locked them could outside long up. advising they put 5, 1998, that, testified on August FBI Lowell Cage Agent the car. FBI a from the trunk of section of photographed carpet did not know if other Carl testified he any Malloy Agent the to the FBI of vehicle prior took agencies police photographs involved, the actual removal but that he was involved with getting the the removed of items from trunk. Agent Malloy Specifically, the to be submitted into evidence. of from trunk it piece carpet the did not Malloy participate Although Agent personally the Arkansas State Crime Labora submission of evidence the the that he collected evidence and it in put tory, explained that he did to be Channel testified vehicle for submitted. transport the removed from on been analysis carpet sample the car. He that he analyzed Elliotts’ carpet piece explained the Elliott’s blood. In so he found that it Lisa doing, compared of one the was consistent with that the DNA from profile carpet Lisa, establishes of Felicia. This evidence female namely offspring testified about. chain of for the Channel custody carpet piece noted, it be court did not the should trial Lastly, permit piece of FBI who took to be introduced because one agents carpet it trunk unavailable. out of the was Malloy Agent Nevertheless, infers that involved tampering Crisco, 582, and, Ark. 943 S.W.2d maintains on relying him. this court should reverse and dismiss the against charges is is distin- without merit because Crisco argument Crisco, from the case. In description guishable present officer’s varied between the seized significantly seizing police drug Moreover, case and the chemist’s. does present description like a or blood drug involve an easily interchangeable sample, it because deals with is DNA. there no sample, Additionally, in the difference carpet sample containing description DNA such as that found in Crisco. case Consequently, Goodwin, from also distinguishable Crisco. See S.W.3d 397 that there was no assertion that the substance (finding (cid:127)introduced at trial differed in or content from the appearance defendant, and, therefore, substance from seized Criscois not applicable). has failed to actual any expose tampering, evidence, or in the chain of

planting significant gap custody. Moreover, the record does not reflect that of these issues any occurred. the trial court did not abuse its discretion Consequently, the DNA results Channel to admitting allowing testify.

VII. Remarks ImproperClosing For his last that the trial point appeal, Appellant argues court erred to declare mistrial after the by failing State made an remark improper closing arguments. during Specifically, Appel- lant’s arises objection from comment: following Now Mr. talked a whole lot bad Harper about how the police find, all messed what didn’t up they you but know what he didn’ttalkabout? He didn’ttalkaboutwhere Greenwasthat Billy that, You didn’thearhim night. did And I’lltell explain you? you he didn’t it because why explain he can’t. A mistrial ais drastic to be used when an error remedy only

is so cannot be prejudicial justice served the trial by continuing and when the statement cannot be cured an instruc prejudicial by 390, 10 Moreover, tion. 340 Ark. Jones, S.W.3d 449. the trial court mistrial, has the sound discretion to decide whether to a grant this decision will not be overturned absent a of abuse showing or manifest Id. upon prejudice complaining party. case,

In the we are faced with a present situation where that the State made an Appellant alleges comment in improper reference to his failure to If a to have testify. prosecutor alleged this, made an comment such as we review the improper statements test. through First, 10 S.W.3d 449. two-step Jones, we determine whether the comment is comment on improper the defendant’s failure to Id. It has been rule that testify. long of, on, not draw attention to fact or prosecutor may comment

505 v. California, to Id. Seealso a defendant’s failure testify. Chapman Ark. 960 S.W.2d Landreth v. 18 (1967); U.S. otherwise, allowed, do because to comments are not These Fifth in violation of the himself the defendant against makes testify Moreover, to the defendant’s a veiled reference Id. Amendment. Second, if this court deter Id. to is also failure testify improper. to choice not to the defendant’s that a did refer mines prosecutor whether it can be shown we then determine beyond testify, not influence the verdict. doubt that error did Jones, reasonable 390, 10 386 U.S. 18. With 449. SeealsoChapman, S.W.3d mind, in we now turn to case. this standard present Here, comment did we believe that the prosecutor’s not failure to as such was testify, not refer to Appellant’s to counsel’s remarks The statement referred Appellant’s improper. “wasn’t there and statements you’ll during opening and the of other see when hear Chad’s testimony you Thus, there.” this was some have been how couldn’t people Therefore, the trial that the could comment on. thing prosecutor err the mistrial. did not failing grant 4-3 Review VIII. (h) has 4-3(h), In with Ark. Ct. R. the record accordance Sup. but reviewed for adverse rulings by been objected No reversible errors were found. additional not argued appeal. new Reversed and remanded for a trial. J.,

Brown, concurs. dissent. JJ., Glaze, Dickey, Gunter, R obert L. I concur with Justice, concurring. Brown, jmuch the the and the result and write majority opinion the “Bad Acts” certain salient regarding only emphasize points from the bench. and the need for admonitions point focus on whether In our should initially my analysis opinion, not circuit abused discretion by intervening judge the error was in the even correct serious error guilt phase, though - to, Procedure Rule of under Arkansas Appellate objected or, abused his discretion failing 10(b)(iv) Criminal alternatively, of error that affected a substantial right to correct an evidentiary - Procedure Criminal Arkansas of under Rule Appellate Green’s of A violation of 10(b)(v). Rule Arkansas Rules 404(b) Evidence us some as to whether serious error or gives guidance error a substantial has occurred. affecting right

I that Green’s control over his agree majority family is not relevant as evidence he that committed independently murders. Nor is it relevant as corroborative evidence of accom- Nevertheless, most, all, I believe that in if not of plice testimony. the incidents of bad-acts admonition to the discussed testimony by majority, would have cured the error as to

jury opposed a declaration of a mistrial.

For Elliott Hart’s it was serious error for Kathy testimony, the circuit to admonish the to her judge jury disregard about her testimony theft of Shane’s death after the nephew mysterious Such was marijuana plants. extremely prejudi- cial, in it that indicated that Green was in a for murder culpable See, he which had not been Wallsv. charged. e.g., 490, 986 S.W.2d 397 The circuit should have judge in even defense counsel stepped though never asked for specifically an admonition after the offered it judge to him. This failure to admonish the was abuse of discretion jury in my judgment rather than the failure to declare a mistrial. Green, For I with the agree majority Joshua Joshua’s that his father “outside the law” and had operated abused him was more

physically Rule 403. than under prejudicial probative This, too, was a “serious error” under Rule 10(b)(iv), and the circuit should have judge intervened and admonished it. Failure to correct the jury disregard serious error admon- ishment was another abuse of discretion my judgment. Green,

In the case of Amber the most prejudicial testimony from her concerned Green’s gun head and holding Mary’s her to her I telling Green’s “say with the prayers.” agree majority had abuse no relevance to

spousal The fact that guilt. Green exercised control over his wife and abused her is not of whether probative Green the murders. For that guilty reason, the circuit clear judge in and obligation step correct the error. Chad Green’s statements Similarly, smoked meth- father, steal, with his who amphetamine also made him irrelevant in the murder clearly trial and prejudicial. Again, abuse discretion was in specific admonish the failing the error under Rule 10 purposes correcting (b) (iv). Green, error in her there was serious to Mary With regard husband; (2) father and an abusive that Green was (1) testimony murders, in Elliott and (3) was the Green involved that she thought at than she was allowed matter hand that knew more about the she either serious error or constituted All of this to mention. An ad- substantial error Green’s rights. an evidentiary affecting correct the made the should have been jury monishment resulting prejudice. “snitch,” the final of jailhouse

As a point, Moffitt, threats and violence toward about Green’s Willie Scott in the murder of the Elliotts him had no relevance guilt An admon- does within a Rule 404(b) exception. Nor it fit phase. the circuit ishment judge required. by reasons, I of convic- would reverse judgment For these new tion remand for a trial. I dissent. This dissenting. Justice, respectfully

Jim Gunter, evidence of crimes should be affirmed because the case prior Ark. R. Evid. Dale are admissible under and bad acts of Green Billy these heinous motive and intent to commit to show 404(b) appellant’s is not listed evidence may crimes. control Although specifically and admissible under Rule motive 404(b), be relevant independently Thus, rule. under the and intent are listed specifically exceptions is to show motive and control over his relevant family appellant’s in the death of an intent to commit these horrible acts resulted two entire children. family, including young a A is mistrial a drastic moved mistrial. remedy an cannot to be when error is so justice used only prejudicial state be trial when prejudicial served by continuing State, v. 340 Ark. ment cannot be cured an instruction. by Jones trial has the sound discre court 10 S.W.3d mistrial, and this decision will not tion to decide whether grant manifest be overturned absent abuse or upon preju showing Id. even if remark dice to the complaining Additionally, party. the mistrial motion cure trial may deny improper, admonishment to disregard by issuing any prejudice S.W.2d 851 (1987). remark. v. Dandridge of Evidence 404 Arkansas Rule provides, part: of a charac- (a) CharacterEvidence Evidence Generally. person’s is not admissible for the purpose ter or a trait of his character therewith on a particular that he acted in conformity proving occasion, except: accused. trait (1) Character Evidence of a of his pertinent accused, same; character offered byor to rebut prosecution Crimes, crimes, (b) Acts. Other or Evidence of other Wrongs, or acts is not admissible wrongs, prove to the character of in person order to show that he acted in It conformity may, therewith. however, motive, for be admissible other of such purposes, proof intent, opportunity, preparation, plan, identity, or ab- knowledge, of sence mistake or accident.

Id. Rule of 404(b) introduction of other criminal “permits testimony if issue, is, it is relevant to the main activity that independently relevant the of sense to some material rather tending prove point than to that State, the defendant is a merely criminal.” v. prove Spencer 230, 236, 461, 348 Ark. 72 S.W.3d The State is entitled (2002). to act, evidence circumstances produce showing which the explain show a motive or illustrate accused’s state of mind. killing, 187, State, Barntt v. 354 Ark. 119 S.W.3d 485 In (2003). with dealing issues to the admission of evidence relating to Rule pursuant 404(b), a trial court’s is entitled to ruling and this court will great weight, not reverse absent State, an abuse of discretion. Barnes v. 346 Ark. Further, S.W.3d 271 this court has held that the list of to list, in Rule is not an exclusive exceptions inadmissibility 404(b) instead, but it is of representative circumstances under types crimes, which evidence of other or acts would be wrongs, relevant and admissible. v. 894 S.W.2d 564 (1995). Diffee Therefore, I would hold that the circuit court did abuse not its discretion by admitting testimony concerning control appellant’s over his family. Green

Testimony Family of that circuit court argues erred by allowing Amber, Chad, and testimony Joshua, Green Mary regarding control abusive appellant’s treatment of his This family. has no merit. The argument testimony children and appellant’s wife is to admissible that he had control over his prove family, to committed the crime. prove The appellant testimony had the to proves intent use his appellant members to family commit these crimes because were too scared of to they appellant no and walk say also away. showed that the fear testimony were afraid in his was so great they instilled family appellant was behind until information any appellant come forward is to show his relevant control over family bars. Appellant’s control the issue these His to commit murders. goes intent Moreover, were statements these and deliberation. premeditation did not abuse The trial court than not more prejudicial probative. Rule 404(b), under its discretion by allowing of control meritless. the issue appellant’s argument regarding her Green concerning of Mary Regarding arrest, what trial court ruled that after safety appellant’s her and he rehabilitated is that you “basically happened impeached court overruled the she on and on and on.” The her and went advise the instruction to offered objection limiting However, chose not to her redirect testimony. appellant disregard such, if the remark instruction As even have the given. limiting the mistrial motion and the trial court deny may improper, admonishment cure by issuing jury disregard any prejudice Here, 727 S.W.2d 851. remark. appellant Dandridge, even or a instruction declined admonishment limiting cannot the trial court offered one. any Appellant did not abuse prove though Therefore, its trial discretion. court prejudice. Elliott Hart Testimony Kathy of Elliott also claims the testimony Kathy testified that she was afraid for Hart was allowed. improperly Kathy because her had died brother to be around the Greens her nephew after had stolen some mysteriously marijuana appellant’s this statement and objected plants. Appellant immediately motion, the mistrial for mistrial. The trial court overruled moved never but offered instruction. limiting clearly accepted offer, review- and a instruction was given. Upon limiting it, it is clear that the objections ing appellant’s the motion for court did not abuse its discretion by circuit denying The fell within Rule established 404(b), they mistrial. statements the theft on the The motive was anger motive part appellant. Therefore, is merit- of the marijuana appellant’s argument plants. less. had the intent to deliberate premeditate Further, he the intent to use the of the Elliot

murders family. him these over own to make them commit control family help be admissible under the crimes. The evidence should unspeakable evidence in this case is intent Rule exception 404(b). The circuit did not abuse its discretion. overwhelming. Therefore, this case should be affirmed. JJ., join. Dickey,

Glaze LIGON, Stark as Executive Director of Court Supreme NEWMAN, Committee on Professional Conduct v. Robert Arkansas Bar No. 95050 03-1381 231 S.W.3d 662 Court of Arkansas

Supreme 9, 2006 delivered March Opinion denied [Rehearing April 6, 2006.]

Case Details

Case Name: Green v. State

Court Name: Supreme Court of Arkansas

Date Published: Mar 9, 2006

Citation: 231 S.W.3d 638

Docket Number: CR 04-1379

Court Abbreviation: Ark.