Helen Marie Gately v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

ar04-583

DIVISION III

HELEN MARIE GATELY

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR04-583

OCTOBER 12, 2005

APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT

[NO. CR-2003-355-1]

HONORABLE WILLIAM A. STOREY,

JUDGE

AFFIRMED

Sam Bird, Judge

Appellant Helen Marie Gately was found guilty by a jury of first-degree murder in connection with the shooting death of her husband, Mark Smith. She was sentenced to thirty-five years' imprisonment. On appeal, Gately contends that the trial court (1) erred in denying her motion to suppress her confession; (2) erred in allowing a firearms expert to testify as to the comparison of the bullets found in the victim's body and the bullets found in the gun that she allegedly used to kill him, due to a failure to prove chain of custody; (3) erred in prohibiting her from introducing extrinsic evidence to impeach a crucial State's witness; and (4) erred in allowing prejudicial and inflammatory photographs of the victim into evidence. We find no error, and we affirm.

On January 24, 2003, Gately entered the Hot Springs Police Department and handed a written note to Detective Dwayne Tarbet. In the note, Gately admitted to killing her husband, Mark Smith, who she said had held her prisoner for over two-and-a-half years through "extreme domestic violence" and "threats of death" to her and her children. After receiving the note, Detective Tarbet took Gately to an interview room and read her rights to

her, and Gately gave a detailed statement of how she killed Smith.1 Gately was subsequently arrested and charged with capital murder. Prior to trial, defense counsel filed a motion to suppress Gately's statement to the Hot Springs police.

At the suppression hearing, Detective Tarbet stated that Gately "appeared to understand" when he gave her the rights form. Tarbet said that "she did not hesitate in any of her answers." Furthermore, he said that they "proceeded to talk about what happened and basically she went into how she had killed her husband and concealed the body and wound up in Hot Springs." Tarbet also said that, when he read the rights form to Gately, he explained to her that she was free to leave at any time. He testified that Gately had no problems understanding, that she was not under the influence of drugs or alcohol, and that she said she had completed high school and college. Furthermore, Tarbet said that Gately knew where she was, what time it was, who Tarbet was, who she was, and that she had all of her "mental faculties about her." Tarbet also said that he had no reason to believe that she did not understand what was going on, and that there were no signs of psychosis or aberrant behavior. He testified that Gately was able to carry on an intelligent conversation. Gately presented no witnesses at the hearing.

The trial court denied Gately's motion to suppress, finding that the statements made by Gately were voluntary and that she had made a "knowing and intelligent" waiver of her rights against self-incrimination.

At trial, the victim's brother, William Lagnion, testified as a witness for the State. He said that Gately's relationship with Mark Smith was "pretty normal" and that "they seemed to be in love and couldn't be out of the room from one another." He also said that he never saw any physical violence between the two of them. On cross-examination, Lagnion was questioned about a handwritten letter that Gately contended Lagnion wrote and sent to her after the murder, and the following colloquy occurred:

Defense Attorney: I want to show you what I have marked for identification as Defendant's Exhibit Number One and ask if you can identify that?

Mr. Lagnion: Looks like a letter.

Defense Attorney: A letter, can you tell from whom?

Mr. Lagnion: No.

Defense Attorney: That's not your handwriting?

Mr. Lagnion: No, I don't write in print.

Defense Attorney: You didn't write that letter to Helen while you - y'all were in jail?

Mr. Lagnion: No, I did not.

Defense Attorney: Does it not say BJ down there at the bottom?

Mr. Lagnion: It does not.

Defense Attorney: So you're testifying under oath you didn't write the letter?

Mr. Lagnion: I did not.

Defense Attorney: Okay, if Helen says that you did, you're saying she's lying?

Mr. Lagnion: Yes, I am.

Defense Attorney: Isn't it true though, Mr. Lagnion, that you were sorry that you didn't intervene when your brother was beating up on his wife?

Mr. Lagnion: No, I never saw him beat her up. I never heard it or anything.

James Looney, a firearms and toolmark examiner, testified that the bullets recovered from Mark Smith's body matched those that were test fired from the gun that was allegedly used to kill Smith. Gately objected, claiming that the State had not established a proper chain of custody demonstrating how the bullets were recovered from Smith's body and turned over to Looney. The court allowed voir dire, during which Looney said that he obtained the bullets from a locked evidence room at the medical examiner's office. Looney also explained that bullets were generally removed during an autopsy, placed in a sealed envelope, and submitted to a locked evidence room. Looney further testified that the examining doctor typically filled out a submittal sheet and submitted it with the evidence to the property room. Though Looney admitted that he was not present when the bullet fragments were submitted in this case, he said that all cases were generally handled this way. The court subsequently overruled Gately's chain-of-custody objection.

Dr. Charles Kokes, a forensic pathologist, testified that he conducted an autopsy of Smith's body on January 27, 2003. He determined the cause of death to be "multiple gunshot wounds" and the manner of death to be "homicide." Over objection from Gately, the State introduced pictures of Smith's decomposed body showing the bullet wounds, and Dr. Kokes opined that the coloration around the wounds indicated that they were all at "close range."

Gately then testified in her own defense. During her testimony, she admitted that she shot Smith four times. She was also questioned about the handwritten letter that she contended was written by Lagnion. Gately said that the letter was from Lagnion, whom shecalled "B.J.," and that she knew it was from him because it said "here's my first question, why did you not warn me?" She stated that she was familiar with his handwriting and that she "saw it all the time." She also said that she had kept a notebook of his poetry and that there was "no doubt" in her mind that this was his handwriting. She further explained that the letter was addressed to "Aerial" because "that was a recent song and we never left the house." When defense counsel attempted to introduce the letter into evidence, the following colloquy occurred:

Defense Counsel: Your Honor, I move to introduce Defendant's Number One.

The Court: Any objection?

Prosecutor: That's the same letter we attempted to put in yesterday, Judge, and he was asked about that handwriting and denied it, so.

The Court: Is that an objection?

Prosecutor: Yes, it is.

The Court: Sustained, it's clearly hearsay.

Defense Counsel: Your Honor, I think its ---

The Court: I've ruled, counsel.

Motion to Suppress Confession

As her first point on appeal, Gately argues that the trial court erred in denying her motion to suppress her confession to Hot Springs police because it was not "voluntarily given." In cases involving a trial court's ruling on the voluntariness of a confession, we make an independent determination based upon the totality of the circumstances. Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003). A statement made while in custody is presumptively involuntary, and the burden is on the State to prove by a preponderance of the evidence that a custodial statement was given voluntarily and was knowingly andintelligently made. Id. In order to determine whether a waiver of Miranda rights is voluntary, this court looks to see if the confession was the product of free and deliberate choice rather than intimidation, coercion, or deception. Id.

In determining whether a confession was voluntary, we consider the following factors: age, education, and intelligence of the accused, lack of advice as to his constitutional rights, length of detention, the repeated and prolonged nature of the questioning, or the use of physical punishment. Jones v. State, 344 Ark. 682, 42 S.W.3d 536 (2001). Further, the credibility of witnesses who testify at a suppression hearing about the circumstances surrounding the appellant's in-custody confession is for the trial court to determine, and we defer to the superior position of the trial court in matters of credibility. Id.

In this case, Gately entered the Hot Springs Police Department and handed Detective Tarbet a note in which she admitted to killing her husband. Detective Tarbet stated that he then took her back to an interview room, that he read her Miranda rights to her, and that she "appeared to understand" this before she gave her statement. Tarbet also said that, after he read the rights form, he explained to Gately that she was free to leave at any time, and she "did not hesitate" in answering his questions. According to Tarbet, Gately was not under the influence of drugs or alcohol at the time, and she said that she had completed high school and college. Furthermore, Tarbet said that Gately knew where she was, what time it was, who Tarbet was, who she was, and that she had all of her "mental faculties about her." Gately presented no witnesses at the hearing to dispute Tarbet's testimony.

Based on our review of the evidence, we cannot say that the trial court's decision to deny Gately's motion to suppress the confession was clearly against the preponderance of the evidence. We therefore affirm the trial court's decision to deny Gately's motion to suppress her confession.Chain of Custody Gately next contends that the trial court erred in allowing the firearms expert to testify as to his comparison of the bullets removed from Smith's body and the bullets found in the gun allegedly used to kill Smith because the State did not establish the appropriate "chain of custody." To support this argument, Gately points to the testimony of the firearms expert that he was not present in person to "know for a fact that the doctor who did the autopsy put the actual bullets that were obtained from the body into the envelope that was submitted to [the] property room." Moreover, Gately points out the lack of testimony from the person who was apparently the connecting link between the doctor who performed the autopsy and the person who delivered the evidence to the evidence locker. Thus, Gately argues that the State did not establish the appropriate chain of custody and, therefore, the trial court erred in allowing the testimony of the firearms expert as to the comparison of the bullets.

We need not decide the issue of whether the trial court erred in admitting this testimony because, even if it were erroneously admitted, Gately failed to show any resulting prejudice. An appellate court will not reverse an evidentiary ruling absent a showing of prejudice. Ramaker v. State, 345 Ark. 225, 46 S.W.3d 519 (2001). Here, Gately admitted at trial that she shot Smith four times with the gun that the victim kept in the bedroom. Furthermore, she did not contend that the gun used for comparison in this case was not the gun that she used to shoot Smith. We fail to see how the testimony of the firearms expert as to the comparison of the bullets prejudiced Gately in any manner; thus, we affirm the trial court's decision to allow the testimony.

Extrinsic Evidence to Impeach

As her third point, Gately contends that the trial court erred in prohibiting her from introducing the handwritten letter-purportedly from Lagnion-into evidence. Specifically,she argues that, in accordance with Ark. R. Evid. 613(b), the letter should have been admitted into evidence for the purpose of impeaching Lagnion's testimony that he had no knowledge of Smith's abusive behavior toward Gately.

On appeal, a reviewing court will not reverse a trial court's ruling on the admission of evidence absent an abuse of discretion. Davis v. State, 350 Ark. 22, 86 S.W.3d 872 (2002). In evidentiary determinations, a court has wide discretion. Id. Here, the trial court excluded the letter from evidence, finding that it was "clearly hearsay."

Rule 801(c) of the Arkansas Rules of Evidence defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Statements classified as hearsay are generally not admissible into evidence. Ark. R. Evid. 802.

Under Ark. R. Evid. 613(b), however, extrinsic evidence of a prior inconsistent statement is admissible if certain requirements are met. Rule 613(b) states, in relevant part, as follows:

Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require.

Gately now asserts that the requirements of Rule 613(b) were met, and, as a result, the trial court erred in failing to allow her to introduce the handwritten letter to impeach Lagnion. We hold that this argument is not preserved for appellate review because Gately failed to make the argument below. It is well-settled that this court will not address arguments raised for the first time on appeal. See Dowty v. State, ___ Ark. ___, ___ S.W.3d ___ (June 23, 2005). In this case, the following colloquy occurred when defense counsel attempted to introduce the letter into evidence:

Defense Counsel: Your Honor, I move to introduce Defendant's Number One.

The Court: Any objection?

Prosecutor: That's the same letter we attempted to put in yesterday, Judge, and he was asked about that handwriting and denied it, so.

The Court: Is that an objection?

Prosecutor: Yes, it is.

The Court: Sustained, it's clearly hearsay.

Defense Counsel: Your Honor, I think its ---

The Court: I've ruled, counsel.

During this exchange, defense counsel never mentioned Ark. R. Evid. 613(b), nor did he claim that the letter should have been admitted to impeach Lagnion's testimony. Gately now argues that when defense counsel tried to clarify to the court the basis of the argument why the letter should be admitted, he was cut off by the trial court. While we agree that the trial court interrupted counsel's apparent attempt to express the reason he believed the letter should have been admitted, it was counsel's obligation to request that the trial court allow him to make a record. We do not believe that an attorney who begins to state a reason why evidence should be admitted, but then acquiesces in the judge's interruption, has taken measures sufficient to preserve his argument for appeal. To consider Gately's argument now, we would have to speculate that counsel was about to make the argument at trial that he now seeks to make on appeal. Because it was raised for the first time on appeal, we decline to reach the merits of the argument.

Photographs

Finally, Gately contends that the court erred in allowing "prejudicial and inflammatory" photographs of Smith's body into evidence, claiming that the prejudicialeffect of these photographs on the jury far outweighed any probative value that they may have had.

The admission of photographs into evidence rests within the sound discretion of the trial court and will not be reversed absent an abuse of that discretion. Barnes v. State, 346 Ark. 91, 55 S.W.3d 271 (2001). In Weger v. State, 315 Ark. 555, 559-60, 869 S.W.2d 688, 690 (1994) (internal citations omitted), our supreme court stated as follows:

"Relevant evidence" [is] evidence [having] any tendency to make the existence of any fact of consequence to the determination of guilt ... more or less probable. However, even if relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. We have repeatedly held that the balancing of probative value against prejudice is a matter left to the sound discretion of the trial court, and a trial court's ruling on this issue will not be disturbed absent a showing of manifest abuse.

Although we give great deference to the trial court's discretion in a Rule 403 weighing of probative value versus prejudice, we have rejected giving a trial court unlimited authority to admit photographs. We require a trial court to first consider whether relevant evidence creates a danger of unfair prejudice, and then to determine whether the danger of unfair prejudice substantially outweighs its probative value. The mere fact that a photograph is inflammatory or is cumulative is not, standing alone, sufficient reason to exclude it. Even the most gruesome photographs may be admissible if they assist the trier of fact in any of the following ways: by shedding light on some issue, by proving a necessary element of the case, by enabling a witness to testify more effectively, by corroborating testimony, or by enabling jurors to better understand the testimony. Of course, if a photograph serves no valid purpose and could be used only to inflame the jurors' passions, it should be excluded.

Here, over objection from Gately, the trial court allowed the State to introduce pictures of Smith's body showing the bullet wounds. In denying Gately's objection, the trial judge stated as follows:

Well, I'm obviously looking at the exhibit, they're not unduly gruesome. Of course, this body is apparently in a state of some decomposition, but I think this certainly aids the jury in understanding the location of wounds to the body. There's apparently some dispute as to when the shots were fired and where.

The court was clearly entitled to exercise its discretion in determining that the photographs served a valid purpose and did so. Accordingly, we hold that the trial court did not abuse its discretion in admitting the photographs, and we affirm on this point.

Affirmed.

Pittman, C.J., and Neal, J., agree.

1 Gately gave a six-and-a-half page written statement to police on January 24, 2003. In the statement, she admitted that she "shot and killed" her husband inside their residence. She stated that she shot him four times while he was sleeping in their bed, and that he got up and went into the kitchen, where she shot him again and he died. Gately said that Smith's brother, William Lagnion, was present in the house after the shooting and wanted to "wrap up the body and split [Smith's] assets." Gately said that she and Lagnion put Smith's body in the basement and took an $8000 cashier's check from Smith's wallet. She described Smith as a "severe meth addict" who was abusive toward her. Gately believed that "the only way out ... was shooting him, getting caught, and serving whatever time necessary" so that she could be "safe in jail." She went on to explain that, after she killed Smith, Lagnion was "very high on [Smith's] dope" and would not go to sleep. Gately said that, when Lagnion finally fell asleep, she loaded her belongings and drove to Hot Springs, where she wrote out her confession in a hotel room.