*1 345 of Arkansas STATE WILLIAMS Charlie 932 CR 87-142 S.W.2d Court Arkansas Supreme delivered Opinion January *2 III, G. B. Colvin “Bing” appellant. Clark, Gen., Holder,
Steve Att’y Theodore Asst. by: Att’y Gen., for appellee. Justice. The charged Purtle, was and appellant
John I. convicted of degree first murder to Ark. Stat. Ann. 41- pursuant § 1502 (Repl. 1977) (Ark. Code Ann. (1987)) 5-10-102 and § sentenced to forty years For he imprisonment. appeal argues: (1) of the insufficiency evidence to a conviction for support first degree murder (2) and that the trial erred failing grant court to a mistrial due to prosecutorial Although misconduct. we find the conduct on the to be unprofessional below the standards of a expected state’s we find such attorney, misconduct did not prejudice appellant.
There nowas eyewitness homicide except appel- lant; therefore, the case must stand fall on circumstantial evidence. The witnesses, uncontradicted testimony several including discloses appellant, and his appellant Rosalee, daughter, had a serious a few hours before the homicide caused in Rosalee’s part by to a man named relationship Jordon, Leonard also referred to as “Lenon” and “Puddin.” Rosalee was told by to her clothes out appellant of his house. When Jordon came to appellant’s residence to Rosalee help pick balance of her clothing threatened to “blow appellant his head off’ and told Jordon not to come back. According to the Jordon stated to testimony, words the effect that he would not be back but else would. somebody
The watched them appellant daughter’s move his property a house down the street where a named person James Earl Ford resided. observed them Appellant clothes in put daughter’s the back of an automobile and he saw James Earl Ford leave the premises with the and Rosalee and Jordon. It was property almost dark at that time but the houses were a short distance apart was still The visibility fairly good. testified that he Meantime, had the his residence. saw Ford return to for a to look go outside tried to borrow his father’s pistol to allow the The father refused in the chicken house. “possum” the appel- outside and thereafter his handgun take house. the chicken lant took a rifle and went out 30.06 in his his residence with a The saw Ford leave was dark by hand and residence. It come toward the appellant’s in the lighting this time. there was some of outside type Obviously headlight area. The evidence shows that Ford had a strapped who his head and that he was rabbit going hunting. appellant, homicide, he knew the gave several versions of the indicated that man he his house was Ford and that approaching *3 Ford was him behalf of Rosalee. Other times coming get on
appellant testified he didn’t know who it was. In his statement to he said he didn’t know who was him but police coming he thought it was Leonard Jordon.
According to Ford ran to near the appellant’s testimony, up down, line of the property and slowed at which time the tree, called, who was behind a “What are appellant, big you out, looking for?” stated that Ford either called “You Appellant dark, or, over there in the what are over for?” you looking there “Where in the exchange hell is After this you?” said, stated he eased to the back door and “Here I am.” up either, to him According the other stated “I come to burn party ass,” goddamn or “I this your have come to load After you up.” words, exchange of aiming claimed Ford started him; so, shotgun at fired his in self-defense. evidence shows shot entered the side of physical Ford’s head and killed him. Ford’s was found in the street body near the residence with the it and the appellant’s shotgun beneath on. safety
During closing Prosecutor John Frank Gibson referred to one of the statements apparently given that, the chief of to the effect know who I was “I didn’t Puddin, shooting at but I it was Lenon Jordon.” The then addressed the as follows: Mr. Gibson: asked years. “I fifteen you forty years plus me, If want to him life o.k. if you give your disagree no, we say go can’t more than second degree murder. fifteen. Twenty plus The man is dangerous. He hasn’t even killed Puddin yet. Honor,
Mr. Colvin: Your I object to the statement. Mr. Honor, Gibson: Your he said he intended to kill Puddin.
Mr. Colvin: I object to it because of the fact that there is no evidence that he intends. And it is an implication to be going another death Dermott if this lets him go and I demand that that man be shut on that kind right statement there because that is uncalled totally for. Well, Court: now is, here is what my ruling Mr. Gibson.
Mr. Gibson: It is in the statement. The Court: The Jury has heard the have testimony. They heard whether or not was said anything about that. Therefore, they will have to make their ruling on what they heard, not what the counsel said.
Mr. it, Gibson: Can I argue Your Honor? No,
Court: sir. *4 Mr. Honor, Gibson: Your I heard him his testify, by statement there that he intended to kill Puddin. A little stated, later “Well, Gibson Honor, Your are you sitting there commenting on my argument. I feel like if I hear testimony came from a witness that the Defendant intended to kill some- body, I want to remind the of it.” jury Gibson went on again to repeat, “I wanted to remind them that he hasn’t killed Puddin yet.” After this repeating tactic three or four times the prosecutor then apologized and sat down. The motion appellant’s for a mistrial was overruled.
We first consider the chief argument that by appellant the evidence was insufficient to show that he killed James Earl Ford with deliberation and premeditation as is Ark. required by Code Ann. review, 5-10-102 (1987). On appellate this § court reviews the evidence in a most light favorable to the state to determine whether the verdict is supported by substantial evi- 80 dence. Williams 709 S.W.2d Evidence if the could have reached this jury substantial or conclusion without to resort to having speculation conjecture. Williams supra.
There was substantial evidence before the appel- lant Earl Ford deliberately with shot James premeditation he thought siding because Ford was with Jordon because he mistook Ford for Leonard Jordon. he saw Ford Appellant testified back, leave Jordon his then daughter, and come and set out for his house with a in his told the hand. Appellant the right shooting after that he the man he shot was Leonard Jordon. clearly evidence shows that the shot and killed appellant the
Ford in street near where lived. It was dark and the had first hid behind a tree and then near his eased own backdoor before the fatal shot was fired. The own words was it firing reveal he not self-defense. No doubt took several minutes for Ford to from his own residence toup the residence of the of time appellant which was plenty to form the intent to commit murder. He was hiding when dark Ford need said along came not have anything in order to avoid a confrontation.
Even killing, though eyewitnesses were no had the to resolve evidence right believing Girtman appellant’s account of shooting.
13, 684 S.W.2d There was that Ford was testimony going rabbit Ford’s hunting. shotgun were headlight appro priate for rabbit hunting shotgun and his was found underneath with the still body safety on.
The second is more no point testimony There was complex. at the trial that the intended to and kill go back Jordon later. There was no or other evidence he intended testimony to kill anybody else in future. There no was basis simply record for the prosecutor to make the statements he made.
We have on numerous occasions dealt
closing argu-
State,
In Williams
ments of
v.
Ark.
overzealous
259
prosecutors.
667,
(1976),
Closing arguments must be confined to questions 350 inferences introduced and all reasonable
the evidence
Simmons
v.
can
therefrom.
which
be drawn
deductions
State,
616,
trial
197. Whenever
346 S.W.2d
233 Ark.
and states
record
beyond
counsel
matter that is
argues
evidence
by any
facts
assertions not supported
or makes
is
party,
the opposite
are prejudicial
319;
State,
517,
S.W.
Ark.
212
error. Walker
v.
138
131,
When objection presiding and instruct the counsel reprimand appropriately short, statement, do everything to consider the is neither see that the verdict possible Walker v. argument. influenced such by nor produced State, a objection The failure to sustain proper supra. the record is serious argument of matters not disclosed error, it gives improper because the appearance but endorsement of has not the sanction State, 492, 1001; Miller v. Ark. S.W. 120 179 court. State, State, 15; Elder v. 1173, 278 S.W. Hays v. 169 Ark. 648, 69 65 S.W. It has even been said that the Ark. 938. amounting of a to statement overruling proper objection law of an giving to a declaration of is tantamount to the instruction to that effect. argu has
A trial
wide discretion in control
judge
Holcombe
ments to the
but there
a limit to
discretion.
jury,
State,
640,
158
471
We have stated
v.
Ark.
S.W.2d
that we will
reverse a
where counsel
always
goes beyond
case
party
record and
facts that
to the opposite
states
are prejudicial
unless the
its
such
prejudice.
trial court
action has removed
916,
Adams
S.W.2d 946
Failure of
Hays
the trial
calls for reversal.
court to exercise such discretion
15 (1925).
278 S.W.
over
that a
This court has
held
repeatedly
years
has
in a
and he
capacity
acts
prosecuting attorney
quasi-judicial
fair,
reasonable,
honorable,
use
and lawful means to
all
duty
fair
trial.
secure a conviction of
in a
and impartial
guilty
conviction is never proper
the desire to obtain a
*6
arguments
inducement to include in
the
closing
anything except
evidence in the case and
deducible conclusions from
legitimately
353, 571
State,
the
law.
v.
264 Ark.
S.W.2d 429
applicable Mays
(1978).
stated,
We
the
have
rule rests
“Basically,
upon
spirit
which,
else,
of fair play
distinguishes
more than anything
perhaps
law
of
Anglo-American
from the
other nations.”
jurisprudence
616,
State,
Simmons and
v.
233 Ark.
It is
matter when an
serious
attorney attempts
of the
appeal
prejudice
by arguing matters outside the
record.
we
defer
the
usually
trial court in the exercise
of its discretion in
The
such matters.
trial court is in superior
to determine
position
the
of
possibility
prejudice, and to observe
mannerisms,
the
and demeanor of
expressions,
the parties
determining whether to grant a mistrial. The decision whether
of
grant
a new trial is
with the trial
and will
discretionary
judge
be
on
reversed
in the absence of a
appeal
showing of abuse of
discretion
State,
or manifest
to the accused.
v.
prejudice
Vasquez
468, 701
287 Ark.
State,
S.W.2d 357 (1985). Harvey v.
261 Ark.
47,
Admittedly the prosecutor’s statements were improper. However, we think the effect of the action by taken the trial court was to inform the argument presented the by prosecutor was not in evidence and could not be considered by them. the Obviously, best course action would have been trial court to immediately front reprimand prosecutor the jury.
We consider
on
misconduct
of counsel on the
facts of each case.
isWhat
in one
prejudice
case
not be in
might
similar case. There is no
indication
case
present
verdict was attributed
to was in
manner
any
influenced
prosecutor’s
argument.
improper
was convicted of
degree
first
murder and received a sentence of
He
forty years.
could have
given
been
life
sentence. In
spite
improper
find
prosecutor we do not
prejudice to have
resulted
under the
Floyd
facts of this case. See
Henderson
(1983)
406, 664 who conducts S.W.2d 451 A *7 county of the state and costing in such a manner runs the risk allowing guilty person escape even the of retrial or possibility such conduct on the discourage part We strongly punishment. case, facts of this we cannot either counsel. under the with the continuing court abused its discretion trial say trial.
Affirmed.
Hays JJ., concur. Glaze, Hays, Justice, disagree I with that concurring. Steele arguing of the court’s which chastises the for prosecutor opinion The majority that the defendant hasn’t killed “Puddin” yet. for the declares there was no basis in the record” opinion “simply chief remarks. I take The Dermott prosecutor’s exception. him at the scene that he intended testified that the defendant told “Puddin,” like, whom he did not but in the dark mistook to kill like, Ford, James Earl whom he did for “Puddin.” inference that the gave Whether that rise to an testimony jury weigh, defendant a threat to “Puddin” was posed it, but it was not I see for the to argue as inappropriate, what he believed be consistent with the trial It is the testimony. counsel, role of in this instance the such urge prosecutor, inferences to the as he thinks are sustained the evidence. when such remarks are without basis should Only handling be labelled The trial court’s “improper.” the issue in a mistrial and to decide denying instructing the case on the rather than the was a testimony, argument, proper should, believe, and we I let it rest there. handling matter J., joins. Glaze,