*1 476 of Arkansas POPE v. STATE (Buddy)
Jeffery 2d 887 S.W. 77-122 CR 28, delivered November Opinion Banc) (In *2 R. for appellant. Henry, John Clinton, Gen., Bill Asst. Atty. by: Jones, Atty. Jackson
Gen., for appellee. T. Roy, Appellant Jeffery (Buddy) Elsijane Justice. with first murder. The arose Pope charged charge degree the fatal from Luster. admitted shooting Appellant but deceased A self-defense. trial shooting alleged jury resulted in conviction of second murder degree and a sentence was The State’s twenty-year imposed. petition court, to revoke sentence was also suspended by granted and a sentence was to run five-year imposed concurrently with the sentence of second murder. degree
For reversal first contends that the verdict was appellant to the law and the evidence. contrary Luster was the of the Silver Cafe proprietor Slipper which theOn by afternoon Sun- frequented appellant. 22, 1976, and W. Townsend day, Febraury were appellant J. in the back of the tavern in a dice Townsend engaged game. refused to call heated words were ex- appellant’s money, the two men and Townsend to the front walked changed the tavern. thereafter left the tavern and Shortly appellant he testified went next door to borrow some When money. to returned the cafe was his .22 caliber carrying at his Townsend, side. He their pistol approached argu- ment was resumed. There was to effect ordered Townsend him the to he was give he gun Townsend testified that had a his front carrying. pistol it. drew that he never but pocket two and stop to the attempted Luster walked over Luster appellant. were altercation. Words exchanged that if he him reflects Luster told own Appellant’s the tavern. Appellant leave were to start something going to the back walked Luster then refused to do so. caliber handgun. counter and got pistol, .38/.40 next, but as to what accounts were Different given happened ex- who was killed. The surgeon the ensuing gunfire shot five that Luster been amined his testified body times. *3 times further shot his five and he denied gun
Appellant and to he not shoot anyone. Only stated was appellant trying that fired his pistol. one witness testified defense officer, at arrived the police Neal investigating Johnson, and received after the shooting possession the scene shortly of it from the bartender. Luster’s Upon inspection gun John- contained three live rounds and son found that the cylinder were no removed three holes but cartridges empty empty that testified they from it. Townsend and two other witnesses fire his did not see Luster gun. on of the evidence appeal
In
the sufficiency
determining
the
favorable to
we view that
which is most
appellee,
evidence
Williams
then we affirm.
and
evidence exists
if
substantial
any
are
State,
8,
(1974).
findings
793
Jury
v.
513 S.W. 2d
257 Ark.
to
evidence
sup-
there is no substantial
not
unless
disturbed
953,
State,
481
S.W. 2d
v.
the verdict.
port
Inklebarger
the evidence
to
pass
not
(1972).
attempt weigh
We do
the
is in
where
witnesses
the
of the
credibility
565,
In Erby conviction second this Court affirmed degree defen- disbelieved the murder and stated: “When jury self-defense, do, it a as had right killing dant’s plea and malice well be without might implied.” was justification, in Here there the record to show that ample with one of the disagreement patrons Cafe; Silver he left the that establishment and return- Slipper ed with a was that he asked the owner of the tavern gun; leave, refused; he but that and kill- aggressor; Luster, ed who was to restore order to his trying place business.
The resolved conflict jury any testimony, there was substantial evidence to verdict of support jury’s of second murder guilty case. degree next that the court trial erred in ex- Appellant alleges his cluding testimony regarding “prior vicious acts” committed the decedent. direct During examination the record reflects: has ever told that Mr. Q. Buddy, anybody has ever killed anybody?
A. Yeah.
MR. BURNETT: Your Honor. Objection, sustained, trial court exclud- objection *4 ed this on the basis that it was self-serving. made the Appellant’s attorney following proffer: time, MR. HENRY: The defendant at this or the witness, for the defendant asked the attorney Buddy “has it been related Pope, question, Luster had Shorty And, killed course,
previously of anyone?” an was at this time and objection was interposed sustained the Court. If allowed to defen- testify, dant, would state that it was Buddy Pope, or it had been told to him that had killed three while in the State of people living and that Mississippi several other whipped peo- while a tavern there in ple Marked Tree. operating is statement or it is not it is hearsay not hearsay offered for of the is truth matter but offered to show state mind this defendant at the time that the occurred. shooting excluded. and the was refused
The proffer was whether the deceased as to The evidence to know it so was important conflicting aggressor time of the offense or “What of mind at the state 41- Ark. Crim. Code believe?” did reasonably §§ for It relevant (1976) and Commentary. 506 and 41-507 immi- as to himself to his apprehension testify 1 Wharton’s Criminal reasons therefor. nent and his danger 1972). 225, 481 (13th Ed. Evidence p. § 1940) (3rd Ed. states the follow- on Evidence Wigmore rules: ing pertinent Par- Deceased, Homicide, from 198. Character
§ character the turbulent ticular Acts of Violence. When homicide, rele- deceased, in is of the a prosecution (ante, 63), no substantial reason vant there against § violent the character instances evidencing particular ** * (1 on Evidence conduct. quarrelsome Wigmore § 1940].) Ed. [3d (c) in Homicide: Violent Acts 248. Defendant § * * * the circumstance creating The fact that Deceased. acts, instead of a is a act or series of single apprehension character, its does not necessarily destroy general does distance in create Nor its capacity apprehension. have that time from the moment of affray necessarily in a acts not may effect. Such given particular there is be but case calculated to create apprehension; exclusion, for a rule no reason fixed forbid- invariably cases.) The state of consideration: their (Omitting ding on the whole to favor admissibility law has come cases.) (2 on Evidence of such facts. (Omitting Wigmore 1940].) Ed. p. § [3d *5 of evidence The admissibility pertaining the deceased is of violence of instances by specific knowledge 879 State, 575, 211 2d S.W. in v. 213 discussed Montague 61, 747 287 S.W. 172 Ark. (1948), from Pope quoting (1926): ‘Homicide,’ in 13 222 of the on “At chapter §
R.C.L., 919, evidence it is said: ‘Where character p. that the deceased in of the contention offered support his the or to characterize was acts, explain aggressor of the defense is restricted to proof general reputa- lived, in the tion where deceased community or at not show acts conduct may specified particular times. It shown that deceased had not be may in in which he used deadly engaged frequent fights on an- and therewith made assaults his weapons, deadly But, on the issue whether or not the accusedhad tagonists. reasonable to believe in imminent ground danger, may himself showhis instances violenceon the knowledge part specific But in no the deceased. case witness state his opin- ion of the character deceased how the latter would acted set have under of cir- any particular ” (Italics cumstances’ supplied.) Law, In the Case we find this replacement Ruling Homicide, at Am. 2d passage subject p. § Jur. (1968): * * * evidence of acts Clearly, of violence specific
deceased is inadmissible where the defendant had no or had not been informed of such acts homicide, since, prior his mind naturally, could not have been affected the absence of materially such Some courts have the view knowledge. expressed that the fact that the defendant obtained knowledge, homicide, to the of the violent acts of the prior deceas ed, either his own through observation or personal information transmitted to him through directly by the deceased or third does not render person, evidence of other However, acts admissible. specific courts, to most and the according trend modern if, homicide, defendant, to the authority, prior either his own observation infor through through others, mation communicated to him including himself, deceased knew of other acts violence of the deceased, he may, support contention he had *6 in to imminent danger believe reasonable grounds from himself deceased, un such prior evidence introduce
an assault by deceased.[1] Suchevidence violence acts lawful defendant whether on the bears question life his great reasonably apprehended danger * * * (Italics supplied.) bodily injury. acts actual- not mean that whether This does specific in the on case becomes an issue in took Mississippi ly place made introduced. The be was proffer which evidence might had heard. to show what appellant as not offered bearing note this We also nor who was the aggressor, as to on the probable question defendant offered than the of witnesses other was testimony evidence Such violent acts the deceased. to show previous was entitled But not have been admissible. of mind in guilt his state determining have the know jury innocence. trial court erred that the final contention Appellant’s to revoke suspend- in the State’s appellant’s granting petition sentence. ed of the trial the sound discretion a matter within
This is of such court, will not overturn Court granting of that discretion. abuse absent showing gross petition (1973). State, 2d 332 498 S.W. Fant v. contention No argument support the trial court other than a made conclusory allegation carried a its discretion. frequently abused Since appellant con- and was games illegal gambling pistol, participated murder, the trial we cannot say victed second degree of discretion. court’s action was an abuse Reversed specific excluding proffered indicated. violence for acts of purposes and remanded. Reversed
[1] Citing Pope supra, among others. dissents. Harris, C.J.,
Byrd, not J., participating. I Chief Harris,
Carleton disagree Justice, dissenting. with that this be the the case should finding majority reversed of the failure to answer because to permit appellant the “Has it been that related question than had killed and I have more one anyone?” previously reason for feeling way.
In the we a violent first have said times that place, many toward others on of a the of the victim disposition part homicide be shown cannot acts of by specific aggression misconduct. 2d 647. In Sanders S.W. case, cases, that several we stated that the law is citing prior established that violent others on a toward clearly disposition the of a victim homicide cannot be shown part specific misconduct, acts of and that such evidence is aggression shown the the properly by proof general reputation deceased. I not see do the of Ark. Crim. Code pertinence §§ 41-506 (1976). and 41-507 former The section that provides one is not force if “he another justified using physical upon the use of unlawful force the other provokes per- physical son; or the he is initial ***.” The latter section aggressor; that: provides
“A not use in self force person deadly physical defense if he knows that can avoid the of us- necessity force that with ing safety: complete that (a) is not re- by retreating, except person to retreat if he is in his not and was quired dwelling or if he is a law officer aggressor, enforcement original a at the direction of a person law enforcement assisting ***.” officer;
The evidence an reflects clearly appellant argu- Townsend, ment with cafe, one of the then left patrons the cafe and returned with a Five witnesses testified that gun. Luster, the as a matter of proprietor, apparently preserving asked when he was the altercation peace, Pope, having Townsend, cafe; matter, with to leave the for that
himself admitted that Luster had asked him to leave Town- Now, from send alone. had to do was all stay away establishment; instead, he returned combat. In ready (and view that of was un- my apparently jury), Pope doubtedly aggressor. was the witness who testified that he had been
Pope only told that Luster had killed This me to somebody. brings my second reason for inadmissible.1 considering who told alleged person, persons, purportedly that Luster “had killed three while Pope people living State of and that he had several other Mississippi whipped Tree,” while a tavern there in Marked were people never operating *8 identified, and I contend that one such a raising defense, should be to do more than amake required general statement without as to the source of hearsay his being specific information, without as to the being specific identity the three who were killed and without persons Mississippi, as to “several” who had been being specific people in Marked Tree. I that hereafter there “whipped” daresay will be who, trial, defendants with murder many charged will that heard the deceased was violent! testify they However, if in all that been my reasoning faulty has said, there is still a reason this case should not be potent why reversed, for was, of evidence proffer total- my opinion, defective. I refer to the fact that the does not include ly proffer i.e., when information, received his before or after the Pope “Has it been related to killing. question simply, Luster had killed course, Of previously anyone?” information could have been related to purported trial, after the but before the killing certainly under no circumstances would the evidence have been ad- missible if such after the acquired shooting.
I would affirm the of the Poinsett Circuit judgment Court. 1 Let it be remembered that the proffered testimony did not consist of threats purportedly made in the past appellant; toward actually, Pope
stated that he and Luster- had always good been friends.