*1
Cartrell Lewan McCOY
STATE of Arkansas
CR 02-1277
Supreme 9, 2003 delivered October Opinion *2 Miller, Defender, Public Clint by: William R. Simpson, Jr., Defender, Public for appellant. Deputy Shue, Gen., Gen., Beebe, for Mike Laura Ass’t Att’y by: Att’y appellee. is the Chief This second Arnold,
W. H.“Dub” Justice. his this case. seeks to overturn appeal Appellant murder. no first-degree Finding second conviction attempted error, we affirm. was convicted of murder in
Appellant previously attempted the first and residential degree was sentenced to total burglary that con- thirty-five years’ imprisonment. Appellant appealed viction to the Court of Arkansas on the basis that the trial Appeals court erred in motion he had made to instruct the denying on the crime of murder. court of second-degree attempted and reversed and remanded the agreed case appeals 414, to the trial See court. v. 49 S.W.3d McCoy App. Court, 154 (2001). After review was this case granted by remanded, reversed and the court of thereby affirming appeals’ decision. See v. S.W.3d 430 (2002). A on the denial of supplemental opinion was issued on rehearing 2002. See April S.W.3d 599
When retried the for murder in the first attempted degree was convicted of charge, appellant murder attempted first-degree and was sentenced to thirty to run consecu- years’ imprisonment tive to the sentence for residential five-year imposed burglary trial, the first trial. At cross-examination of the during appellant by State, from trial prosecutor requested court ruling the admission of regarding misdemeanor convic- appellant’s prior for tion domestic third-degree to the battery. objected Appellant admission of the evidence on the basis of Rules 403 and of 404(b) Evidence, the Arkansas Rules of but the trial court overruled the and allowed the evidence objection in. now that the trial court
Appellant argues erred appeal evidence of his allowing conviction because it had prior no value and was probative to unfairly him in that it prejudicial could have led the to conclude that he had trait character of in violence directed toward the engaging victim and that on the case, in this night acted in question, with his conformity violent character. The State argues this Court should affirm because the evidence conviction was admit- prior properly ted as evidence of lack of mistake or accident and motive under and, further, Ark. R. Evid. 404(b); value out- probative weighed any under Ark. R. Evid. prejudice 403. We agree the State and affirm.
325 Review I. Standardof are afforded that trial courts has held This Court v. 348 Hawkins See in evidentiary rulings. wide discretion to in issues relating (2002). 493 Specifically, Ark. 72 S.W.3d 401, 403, and R. Evid. evidence under Ark. admission entitled to great that a trial court’s ruling we have held 404(b), See, of discretion. absent an abuse will not be reversed weight This Court (2001). v. S.W.3d Cook e.g., likewise, Gaines will, absent showing not reverse prejudice. 8 S.W.3d II. Merits case, defense counsel moved in limine to trial in this prior Just had a from the State introducing proof appellant prevent Sarah domestic battering Battung, case, did not In victim in this testfy. appellant response, if stated that he did not intend introduce specifically prosecutor the domestic had a conviction for proof appellant did that Ms. but intend prove Ms. battering “no court order in connection with had obtained a contact” stated, The trial court domestic conviction. battering appellant’s assault the no-contact order but leave the “You introduce may isit out.” whatever did, fact, in his own defense. With regard testify Appellant stated wounds suffered Battung, gunshot *4 twice, to shoot her and her he did not intend did shoot
although that the her death. His defense was did not intend to cause In the course of cross-examination by was an accident. shooting that the that he had stated forgotten appellant Jackson- have no him to had issued an order directing ville Court Municipal and over Because this was his contact with Ms. testimony, Battung. the court State counsel’s objection, permitted defense in he received about cross-examine appellant Jack- that arose out of his Court in of 1999 sonville August Municipal asked “You convicted in 1999. The got conduct prosecutor June Sarah Battung, in the third for beating of domestic battery degree it “If want to word like you is that correct?” replied, appellant into evi- the State introduced After testimony, that.” appellant’s 6, dence, as State’s Exhibit No. certified judgment copy that was entered against domestic battering appellant third-degree error, court. claims that this was as municipal Appellant nature of the evidence prejudicial value. outweighed probative We disagree.
Under Ark. R. Evid.
evidence of
404(b),
other
motive,
intent,
crimes
be admissible to
may
prove
opportunity,
or absence of mistake or
preparation, plan, knowledge, identity,
See,
468,
accident.
Smith v.
August was introduced via the testimony reading from the first trial. Ms. transcript McCoy apparently opened door to the of Mr. Wilson’s balcony and saw apartment *5 appellant in one of the chairs on the sitting balcony. was'not Appellant the order due to no-contact against to be at the allowed apartment the domestic and third-degree to Ms. in reference him same, forced his the way conviction. All appellant battery inside, and, out Ms. once gun. the door pulled balcony through the ran into another once saw she gun, testified that she “three or four” loud gunshots. afterward heard and soon room was from walking to Ms. Battung According testimony, couch, had when she saw where she been sitting, kitchen from the third-floor come into the balcony. apartment appellant back couch saw the arguing sat down appellant She She then men who had him. up with two other the approached picked At that stood 911. appellant began dialing point, phone her chest and her her. bullets struck and fired shots at abdomen, Two next her on third bullet struck a book that was and a the couch. the stand to in his own testify
When took appellant defense, he he with he claimed that had a him “forgot” gun that he went over to the becausehe was He testified day. apartment to talk Ms. at the and wanted other angry people present He that he did not intend to kill at the time averred Battung. entered testified that he aimed for he He just apartment. he first shot. insisted that he had same corner where fired the He a valuable lesson and inferred that this incident was learned the incident was mistake. Because indicated that accident, the admitted evidence of the mistake to show domestic was introduced absence battering properly accident, which allowable Rule mistake under 404(b). claimed, above, further as was stated
Appellant order at the time. In not aware of the no-contact in effect was to the reason for the from State as question response no-contact
order, that it for “domestic abuse appellant replied and Ms. had “domestic B He that he dispute.” repeated and, domestic when asked if he was convicted of dispute” victim, he “If the third want you against degree replied, like that.” himself door to word Appellant opened his he did introduction of conviction by claiming from the remember the no-contact order Municipal Jacksonville the trial was aware of court’s ruling limiting Court. Appellant conviction; therefore, he, should have of his admissibility previous his We held under limited have accordingly. responses *6 error, doctrine of invited one who is for error cannot responsible be heard to of that for which he was McGhee complain responsible. 38, 41, v. 954 S.W.2d Under this doctrine, cannot now claim error. appellant the evidence that
Lastly, showed regarding credibility, wrote the victim a letter even after a second appellant lengthy court order have no her. contact with He asserted that was an accident and that shooting was not on his mind. killing testified, After the the State introduced the con victim, viction domestic the second no- battery against order, contact and The the letter. is the sole of judge witnesses and the credibility be their weight given v. Burns testimony. S.W.2d 789 (1996). As substantial evidence existed in this case to clearly verdict, with or without the introduction support jury’s conviction, we affirm. Affirmed.
Hannah, concurs. J.,
Thornton, not J., participating. Hannah,
Jim I Justice, concurring. concur this affirming case, but on the basis of harmless In error. considering I must that majority’s state this case reasoning, raises concern yet again for the current and of the validity viability future rule longstanding that character evidence is not admissible to conduct in confor- prove with that character. If the rule has not been mity swallowed yet up its then the rule has so far exceptions, descended into the maw gaping of the that the rule is all but lost. The exceptions the rule application in both our trial and courts has deteriorated to the appellate point issue of legal analysis character evidence most admissibility ends, often with the begins, issue of admis- assumption of character evidence is sibility matter of only picking exception that fits best. of the has become application exceptions trou- deeply The rule is to assure
bling. criminal designed defendant is acts, tried for the crime and not for charged, bad past convicted Where, case, because or she is a bad inas this it is person. that the evidence is introduced to apparent being prejudice inadmissible character evidence jury, does not become admissible As so. calling of accident mistake just by evidence of lack old in a dissenting McFaddin once opinion, quoted “[t]he Justice here, its has four to-wit: cow legs; calling adage applicable five because tail a not a cow calling leg tail a does give legs, leg Co., 217 Ark. Trans. it one.” does make Morley Capital 591, 32 641 (1950). S.W.2d *7 under- evidence of character is desire to admit quite
The human inclination with a natural It fits very nicely standable. if a committed a criminal act criminal cases to conclude person This charged. or she committed one in the likely past, crime and seductive where inclination is especially Fiowever, we once stated: are serious ones. crime present of crimes committed held that other times we have evidence Many his of the crime for prove guilt defendant is not admissible to by a 870, State, 183 39 S.W.2d then trial. v. Ark. which he is on Williams 927; State, State, 555, v. 223 295; v. Ark. 121 S.W. 91 Warp Alford 330, 266 804. Ark. S.W.2d 836, 839, 601 The same (1965). v. 239 Ark. 394 S.W.2d Miller 331, 78 found v. 349 can be stated today. holding Jones courts, then an law is stated by The dutifully S.W.3d cases, determined, In decided no found. older error is exception ours, as this not to be so in times some by nearly enlightened thought 330, 266 S.W.2d 804 did such cases. SeeAlford, court reverse (1931), v. 39 S.W.2d (1954); Williams evidence is a of character The issue of admission improper A the United States one. discussion Supreme most serious by of the issue: casts on seriousness Court in 1948 light unanimously tradition almost that follow the common-law Courts kind of any resort come to disallow prosecution have of evil to establish a probability of a defendant’s character evidence a Not law the defendant with presumption that the invests his guilt. States, character, but it 245 U.S. Greer United simply of good character, on disposition reputation the whole matter closes show defendant’s may The state case-in-chief. prosecution’s law, acts, ill name among criminal specific trouble with the be persuasive such facts though might logically his even neighbors, the crime. The a probable perpetrator that he is propensity irrelevant; said contrary, it is isnot becausecharacteris rejected inquiry as to so them jury overpersuade prejudge toomuchwith the and to weigh one with a bad recordand general deny him opportunity fair defend such against particularcharge. overriding policy excluding evidence, value, its admitted is the despite probative practical issues, that its disallowance tends confusion of experience prevent unfair and undue surprise prejudice. States,
Michelson v. United 335 U.S. 475-76 (1948) (emphasis Moccia, Somewhat more added). United States v. F.2d recently 61, 63 Cir. st First Circuit (1 1982), Court stated: Appeals relevant,
Although . . . evidence’ is propensity risk that will convict for crimes other than ... those uncer- charged tain it will guilt, convict because a bad anyway person deserves . . creates a effect that punishment. prejudicial outweighs ordinary relevance.
We stated similarly long ago:
It is
held that the
uniformly
cannot resort to the
prosecution
accused’s bad
character as circumstance
which
from
to infer his
*8
This doctrine
guilt.
is founded
the wise
of
upon
the
policy
avoiding
unfair
prejudice
which
unjust condemnation
such evidence
induce in the
of the
If
might
minds
such
jury.
should be
testimony
admitted, the defendant
be
might
overwhelmed
prejudice,
instead of
tried
the evidence
being
upon
affirmatively showing his
of the
guilt
offense with
specific
which
is charged.
State,
v.Ware
The bottom line is that for over a we have held that century one could be convicted aof crime if the State only proved beyond committed the defendant that the criminal a doubt reasonable evidence is character easily inadmissibility crime. The rule on hundred and beyond Anglo-American traceable for two years not be convicted defendant should A criminal jurisprudence. bad for the crimes or acts evidence required substituting past this rule sense underlying and common logic proof. simple to this court from the rule by impossible makes departure constitutional It also of future understand. raises specter be to to that will doubtless soon addressed this challenges departure this court. hand, that the at there is no doubt case
Turning harmed showed that battery conviction third-degree have caused a act with The harm been act, might by negligent Battung. have been inflicted or a reckless or might a deadly weapon, do know. drink induce We stupor. just by drugging more than the bare not even know what the was. No We do injury evidence, into so do not know was introduced we conviction and extent of nature battery.
I must note third-degree battery person requires to commit the act recklessly negligently. intend purposely, Thus, without more 1997). Ann. 5-13-203(a)(2-3) Code (Repl. § case, in this it is evidence than was introduced impossible crime. determine what intent was involved in former Only was intro- Docket Profile on conviction Defendant all, rather It no facts at but is only duced. provides utterly Thus, whether we do not know certification of conviction. or negli- was convicted of acting recklessly purposefully, do nor we know whether deadly weapon weapon gently, used, then ask how relevant any or no all. One must weapon in this case in proving third-degree battery on a later occasion. kill Battung McCoy purposely attempted Further, that the third-degree battery requires perpetrator *9 5-13-203(a)(l). Ark. Code Ann. cause “physical injury.” § is defined as: Physical injury condition; (A)Impairment physical (B) Infliction substantial pain;
(C) Inflictionof or visible associatedwith bruising,swelling, marks . trauma. . physical
Ark. Code Ann. 2003). Under 5-1-102(14) (Supp. second-degree § inflicted, a serious must be which is a battery, injury physical injury a substantial risk of death. Ark. Code Ann. creating 5-1-102(19) § (2003). to kill with a would an Clearly, attempting be Battung pistol Therefore, with it a substantial risk of death. injury carrying for conviction would be second-degree battery, properly proven, relevant to show a lack of accident or do mistake. But we not have a but, rather, for we have a second-degree battery, convic- tion misdemeanor. third-degree, Second-degree battery The State characterized the as felony. Sarah Bat- battery “beating “If want to word it like tung.” McCoy that.” No responded, you of this comment explanation was elicited State. conviction, holds, The bare “was majority properly accident, introduced to show absenceof mistake or which is Thus, allowable under Rule we are 404(b).” told that the third- conviction is relevant degree battery to show that when McCoy shot, mistake, he did not shoot pulled but did with accident or pistol so death. That is purpose causing Battung’s mental state for required murder. first-degree attempted One that the might weakly conviction makes it argue more shot with the probable McCoy Battung purpose causing death. The conviction does show that had a McCoy propensity Thus, harm at a in the the conviction is point past. relevant. Relevant evidence is evidence having “any tendency” make the existence of a fact more Ark. R. Evid. 401 probable. However, relevant, the conviction is although only makes it more probable would commit some harmful act against and thus casts much on generally, hardly light the real issue mental state McCoy’s moment of The had determine shooting. whether acting or a lesser mental state. purpose is no There between the crimes as the similarity majority notes is cities Sasserv. required. majority 902 S.S.2d 773 but (1995), similar, the two crimes are not clearly and the conviction therefore must also be third-degree excluded on this basis. If the conviction for third-degree battery was for how would that be negligently harming Battung, relevant to show a lack of accident or mistake? *10 accident was shot Battung by
The issue of whether McCoy the the conviction. the issue which State introduced clearly upon conviction, the to introduction objection McCoy Upon “shows and conviction stated that prior prosecutor lack of McCoy’s a lack of mistake and accident.” objection that’s The Evid. and 403. trial court under Ark. was Rules there more on the issue in and is overruled nothing objection, brief, stated, In his “Appellant McCoy’s the transcript. was accident.” defense was that his of Ms. an shooting court affirm in brief should The State its argues “[t]his was admit- the evidence of the conviction because properly under of mistake accident motive ted as evidence of lack or Evid. and the value any Ark. R. 404(b) probative outweighed states, under Evid. 403.” The “Because Ark. R. majority prejudice accident, the incident a mistake indicated that was appellant admitted for domestic evidence of the conviction battering accident, mistake to show absenceof introduced was properly under Rule 404(b).” which is allowable term must uses the I first note majority although It the conviction was for third-degree battery. “domestic battery,” Second, the term domestic was the State that introduced battery. make I that the conviction in some weak sense while agree it more likely might accident, was not an the conviction shooting The harm could not survive Rule prejudicial analysis. clearly as to make discussion value so obviously outweighs probative This is the sort of the issue of Rule 403 exactly unnecessary. Here, over Rule 404 intended to avoid. was harm Ware, the State intended to See whelmed by prejudice. supra.What evidence of do was introduce character prove conformity court has commission of crime. This allowed therewith do so. Rule 404 this. State prohibits we so. If we have decided abandon Rule should say of that decision could then be- The constitutional implications in future cases. explored also conclusion
I that McCoy disagree majority’s back to the invited error. The statesthat majority by repeating examination, “domestic “If want stating, State you dispute” that,” word it like the no-contact by denying knowledge order, of the the door to admission conviction. McCoy opened That domestic bat- third-degree battery. did not raise the issue of conviction. was mentioned tery *11 order, if there was a no-contact there was some form of Obviously be there would no order. That conclusion is dispute required by common sense. It a door to the conviction. hardly opens outcome, I do concur in the but because
Finally, only was error harmless error. The facts show at the least that McCoy hit, out a and started alone was pulled pistol shooting. Battung twice, hit which tends to show at her. There McCoy aiming that was also evidence the revolver at McCoy emptied Battung. testified that threatened to kill her Additionally, Battung McCoy earlier in the before he shot her that also day night. Battung did testified else. There anyone point pistol was also evidence the visitors entering apartment, with over the about Bat- goaded McCoy kissing phone and otherwise him. There was also tung, attempted anger abundant evidence from the moments just prior McCoy’s had not entering termination apartment accepted of the and intended to continue relationship by any means. I would affirm this case on error. harmless Jones S.W.3d Stewart Jeffrey SWARTZ v. The Honorable Chris PIAZZA, Judge CR 03-58 123 S.W.3d877 Court Arkansas
Supreme 9, 2003 delivered October Opinion