*1 374 be filed and the record should with our clerk
аppeal,
complete
curiam order. At that
within
from the date of this
per
thirty days
time,
Miller v.
See
schedule will be set.
briefing
187,
Motion granted.
Mark McKEEVER of Arkansas
STATE
CR 06-464
Supreme delivered October Opinion Turner, Defender, Public Brandy Jr., R. William Simpson, *2 Vinett, Defender, for Erin appellant. Public by: Deputy Gen., Bell, Gen., K. Ass’t Beebe, Att’y Lindsey Mike Att’y by: for apрellee. con- A Pulaski County jury Chief Hannah, Justice. Jim counts of commit- McKeever of three Mark
victed appellant to ten He was sentenced years’imprisonment a terroristic act. ting second, and for the act, ten first terroristic years’ imprisonment the McKeever was third. Additionally, for the five years’ imprisonment to Ark. Code enhancements firearm pursuant sentenced multiple the reversal, McKeever argues For 16-90-120 (1987). Ann. § from his mother in circuit court erred excluding erred the circuit court also threats to his life. He regarding find no enhancements. We him to in sentencing and, we affirm. error accordingly, reversible facts. On the at trial revealed following The testimony Anderson, 2005, Ettana Weatherspoon, of March Larry night drove As were out they Adrian driving. Thompson Rock, an Little they and Oak in spotted intersection of 19th in named Xavier. They stopped of Anderson’s acquaintance Xavier, at which according point, middle of the street to speak the car and shot McKeever approached to Anderson’s testimony, struck, were. but his They them. Anderson was not companions at distance, at which the road a short to drive down managed Anderson house for ran to his help. Anderson grandmother’s and that the vehicle had a nobody in gun, testified nobody for McKeever. shot except the defense. He told witness for sole had been shooting, that in the weeks leading up for his and that he feared with in an Thompson, involved argument testified that on MсKeever of his life and for safety family. in front of his street he was standing shooting, evening Anderson, and Weath- he saw
mother’s house when Thompson, McKeever, had a gun Thompson drive According up. erspoon that he saw fumbling stated Thompson in his McKeever lap. and fired three that he was “in shock” testified McKeever gun. car. shots into the in this matter on first stood trial September mistrial due to a 13-14, hung jury. resulted in a 2005. That trial mother, testified trial, Tina Curry, McKeever’s his first
During about several threats to her son’s life that had she First, testified that her cell she Anderson and phone. Larry victims, Adrian two of the eventual сalled Thompson, shooting her her that her not safe and told son was in the neighborhood, Second, were to kill him. she testified that a they going said, “I’m son.” computer-generated going get your retrial, At the the State moved limine exclude Curry’s voice. testimony regarding computer-generated objection was as follows:
Deputy Prosecuting Attorney: Ms. As to Curry,
testified that she received threats on her One of phone. those threats awas voice. We would to her to that. didn’t object testifying object *3 last time. in the We were midst of trial just simply didn’t want reasons to look like we were strategic to hide but that’s to trying blatant talk anything, hearsay threat, about a was a there on her left message phone that was a voice. has no idea She computer-generated who left that and I am to ask message, that she going not be allowed to threat. specifically to the testify Only if she voice as a knew recognized she should she be able to to a threat. testify Defense Counsel: I think she should be able to to testify — a threat she received on her own voice on her own
voice mail. She can’t who. I it’s say think important for her to be able to tell the this threat played that she received to the officers. police Deputy Prosecuting Attorney: But it’s irrelevant if she can’t it’s who from. It could have been Bill say Gates, T.P., have a beef anybody, anybody might
with her son or a beef with her. That’s irrelevant. It’s prejudicial. from; She can’t who that came say therefore, it has no relevanсe to this. It’s absolutely their — and, furthermore, that self-defense theory if Mr. threats, unaware those would be less all, relevant or not at relevant I I So am say. to the objecting specifically threat that she claims was on her threats phone if she cannot the voice. specificаlly identify The Court: I will the motion. grant Okay. Honor. Your Note objection, my Defense Counsel: further? I’ll note objection. Anything your The Court: its case-in- to not call testify defense did Curry as chief, the trial court’s ruling, but renewed its objection follows: Honor, I Your I forgot Sorry,
Defense Counsel: fact that Tina based оn the renew motion must my allowed. The if the Court testify would Curry the threats. as to had said she could testify Court same motion based grounds would renew my since messages that she be allowed testify voice mail. were on her court erred excluding circuit life about threats his because Curry’s testimony determi tо his claim of self-defense. evidentiary discretion, nations, and we do not reverse trial court has wide abuse of that of evidence absent an on the admission ruling 577, 111 380 (2003). Bullock v. 353 Ark. S.W.3d discretion. will not reverse an evidentiary this court Additionally, 363 Ark. absent a Sauerwin showing prejudice. admissible, All relevant evidence S.W.3d 266 except Evid. or court rule. Ark. R. 402. *4 otherwise statute by provided Pursuant is is not admissible. Id. Evidence which not Evidence: of the Arkansas Rules of Rule 401 to make having tendency evidence” means evidence any “Relevant determination fact that is to the consequence the existence of of it would be or less than probable of the action more probable the evidence. without as follows: in Arkansas is defined in part
Self-defense pertinent in force another using upon A is (a)(1) person justified physical from what the or herself or a third to defend himself person рerson the use imminent use of believes to be reasonably other and the by person may unlawful force that person, physical be that believes to reasonably of force he or degree use necessary. that,
Ark. Code Ann. 5-2-606 1997). argues (Repl. under this standard the reasonable beliеf of the defendant is paramount and, thus, threats communicated from victim to the defendant are relevant to show the reasonableness of defendant’s belief that harm is himself imminent. clear,
McKeever states that relevance such is of threats that, case, fact this one of thе threats was computer- to the generated go of weight, admissibility, the threat. McKeever also states that his awas central credibility — issue in this He that case. avers at the first trial one which — his that was for his life jury hung testimony frightened was buttressed his mother’s about the considerably testimony threats she He rеceived. that even if computer-generated, the threat illuminates his of state mind to the greatly prior shooting the tenor his of claim reasonable belief drastically changes that he was in danger.
We with McKeever agree circuit court’s error; however, exclusion the evidеnce was in we will not reverse because McKeever has failed demonstrate that he was the circuit court’s It prejudiced by note that ruling. important was excluded. testimonyconcerning computer-generated did State not move in limine exclude Curry’s testimony about she receivеd threats from Anderson and Adrian Larry Thus, it follows the circuit court’s did not Thompson. exclude and McKeever could have elicited testimony, — from testimony McKeever’s Curry. objective to buttress his own with his mother’s testimony about the threats she testimony could have been his mother to accomplished calling about the threats she received from testify Anderson and Larry Adrian McKeever failed to Thompson. other present proffer wise show how he the exclusion of prejudiced by regarding when he could have put on the stand to the Curry voice threats she could testify identify. second
McKeever’s is that the circuit court appeal erred in him to enhancements under Ark. Code Ann. 16-90-120. In this McKeever was accused fired three into a having shots vehicle and two of the wounding conduct, vehicle’s For this he was occupants. charged *5 three counts of a terroristic аct under separate committing Ark. Code Ann. 5-13-310(a)(l) The State then 1997). (Repl. sought §
379 to fix three allowing jury instructions and Ann. to Ark. Code enhancements firearm pursuant §16- separate 90-120. when, not in the act while a terroristic commits “[A] act, manner at or projects of a lawful shoots any
commission [h]e persons property cause injury an object purpose is or which occupied which is being operated at a conveyance In 1997). Ann. 5-13-310(a)(l) Ark. (Repl. Code passengers[.]” car into a using three successive bullets McKeever shot this firearm, incident. McKeever acknowledgеs and one one a continuous-course-of- a act is not terroristic that committing as crime, be charged the three shots may and that properly conduct Ark. 987 v. 337 crimes. See McLennan three separate three shots into firing S.W.2d 668 (1999) (holding appellant’s acts for the three terroristiс constituted an apartment separate 5-13-310). of Ark. Code Ann. purpose § a must determine whether that this court McKeever argues sentence can under Ark. Code Ann. 16-90-120 sentencing for one enhancements offender to serve an it does not follow once He contends that neсessarily incident. crimes, the State can three then conduct is as charged enhancements stacked one top automatically get other. one of
The issue before the court is statutory interpretation. effect to the of The basic rule statutory interpretation givе S.W.3d Bramlett intent of the legislature. reads, the statute We construe just giving Id. addi and words their ordinary usually accepted meaning. tion, a statute is when the unambiguous language plain there is no need resort a clear definite conveys meaning, Id. rules of statutory interpretation. statute, Ark. Ann. 16- firearm-еnhancement Code The
90-120, in relevant part: provides offensewhich is classifiedby convicted (a) Any person any firearm of felony any as a who employed laws state from escaping felony, characteras meansof committing court, to an subjected be may the discrеtion of in the state of confinement period penitentiary (15) not to exceedfifteen years. period confinement, to this if any, imposedpursuant (b) period lawas shall additionto or penaltyprovided section be in any fine *6 im- punishment felony Any sentence prison for itself. section, under the if shallrun posed consecu- provisions any, and not im- tively concurrently any period of confinement for conviction itself. posed felony added.) (Emphasis of the firearm-enhancement statute plain language
shows that the intended it to to for offense legislature apply “any ... in addition to fine or law as penalty provided by for itself.” Ark. Code Ann. 16-90-120. In punishment felony § case, the instant McKeever committed three criminal separate offenses, and each of those three offenses was committed with a such, firearm. As each offenses was to а sentence subject enhancement under Code Ark. Ann. 16-90-120.
Still, McKeever
that in
gun
pulling
firing
car,
at the
he committed
one
act
legislature sought
under
firearm-enhancement
statute
punish
is to
he
say,
Thus,
one
used
firearm in one violent
incident.
appears
contend that since he used
one firearm in one incident
offenses,
commission
he is
one
separate
subject only
enhancement. We
This court
a similar
disagree.
rejected
argument
208,
in Welch v.
269 Ark.
Even
offenses,
robbery
two
were
rapes
each
separate
of which could have been committed with or without a firearm.
involved,
No dоuble
because
jeopardy
there is no constitutional
barrier
the enhancement of the
separatepunishment
each
crimes,
three distinct
all of which were committed with a firearm.
Welch,
Likewise,
Affirmed. concur. JJ., Dickey, Glaze affirm, I While concurring. agrеe Justice,
Tom Glaze, the circuit conclusion that with the disagree majority’s exclude the in limine to erred. The State moved *7 threat, rel hearsay, arguing concerning computer-generated-voice submitted that because the State and evancy, prejudice.Specificаlly, the was on the other end had no idea who McKeever’smother the concerning not be allowed to testify phone, the content of those remarks remarks because content of that person’s irrelevant, court The circuit and was hearsay, unfairly prejudicial. Howevеr, on the State’s motion. appeal, granted He issue. relevancy that the circuit erred on simply the circuit ruled on grounds by hearsay prejudicial ignores court. error, McKeever was order required argue prove relevant, threat was
that the computer-generated-vоice was not threat but also that was not inadmissible hearsay evidence, relevant, instance, even For though unfairly prejudicial.1 rules of evidence. See R. can be excluded under other words, have the circuit court Evid. 402. In other even though may the evidence was irrelevant concluded (as by erred in ruling have circuit court’s could been ruling upheld majority), See that was inadmissible hearsay unfairly evidence prejudicial. Evid. 801 et and Ark. R. Evid. 403. Ark. R. seq. these additional McKeever failed address two Because court, ruled on the circuit raised by
arguments by the circuit court erred this сourt should not conclude merely by relevant. was computer-generated-voice J., joins. Dickey, argued brief, its inadmissible hearsay reply understood that it, too, The State’s demonstrates
irrelevant. analysis grounds argued and ruled to address State required us to circuit court error. circuit court order for conclude