Solomon v. State

Bob SOLOMON v. STATE of Arkansas

CR 95-548                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered January 22, 1996


1.   Evidence -- witness sequestration -- victim's daughters should
     have been sequestered by the trial court. -- The trial court
     stated that the victim's daughters were exempted from the
     witness-sequestration rule by Ark. R. Evid. 616, which
     provides that the victim of the crime, as well as the parent,
     guardian or custodian of a minor victim, has the right to be
     present during the trial notwithstanding Rule 615; the trial
     court ruled in error since none of the victim's daughters was
     the victim of the murder and no minor victim was involved.  

2.   Appeal & error -- prejudice will not be presumed -- no
     reversal absent a showing of prejudice. -- Prejudice is not
     presumed and the appellate court does not reverse absent a
     showing of prejudice. 

3.   Evidence -- sequestration rule -- purpose of. -- The purpose
     of Ark. R. Evid. 615 is to expose inconsistencies in the
     testimonies of different witnesses and "to prevent the
     possibility of one witness's shaping his or her testimony to
     match that given by other witnesses at trial."  

4.   Evidence -- victim's daughters improperly allowed to remain in
     court during trial -- prejudice demonstrated, conviction
     reversed and remanded. -- Where the supreme court found that
     appellant had demonstrated prejudice where the victim's
     daughters were allowed to remain in the courtroom throughout
     the trial and the case was decided by the jury upon the
     conflicting testimonies presented as regards the issue of
     appellant's intent when he shot the victim, the witness-
     exclusion rule should have been applied to prevent the
     possibility of any of the victim's daughters from shaping her
     testimony to that of a preceding witness; accordingly, the
     judgment of conviction was reversed and the case was remanded
     for a new trial. 

5.   Evidence -- evidence alleged insufficient -- substantial
     evidence discussed. -- In determining whether there is
     substantial evidence, the evidence is reviewed in the light
     most favorable to the appellee, and it is permissible to
     consider only that evidence which supports the guilty verdict;
     substantial evidence is that which is forceful enough to
     compel reasonable minds to reach a conclusion one way or
     another. 

6.   Evidence - jury resolves conflicting versions of the facts --
     substantial evidence found to support the verdict. --
     Resolution of the conflicting versions of the facts as
     presented by the witnesses rested with the jury; here it was
     clear that the jury did not believe appellant's version; there
     was substantial evidence to support the conviction for first-
     degree murder.

7.   Evidence -- proffered evidence inadmissible -- direct
     examination did not open the door. -- Arkansas R. Evid. 405
     generally limits proof of character to reputation or opinion
     testimony; however, pursuant to Rule 405(a), a character
     witness may testify on cross-examination as to relevant
     specific instances of conduct; here, appellant's argument that
     proffered evidence of the victim's character, by testimony of
     specific instances of her prior violent conduct toward him,
     was erroneously excluded, was meritless where the abstract
     revealed no evidence from the sheriff, on direct examination,
     regarding the victim's character; hence, the proffered
     evidence was not admissible under Rule 405(a) as it was beyond
     the scope of cross-examination.

8.   Evidence -- victim's violent character not an essential
     element of the murder charge or of appellant's defense of
     accident -- appellant's attempt to use proffered testimony
     circumstantially properly disallowed. -- Arkansas Rule of
     Evidence 405(b) permits proof of character by specific
     instances of conduct in cases in which character or a trait of
     character is an essential element of a charge, claim or
     defense, such a character trait must be "an operative fact
     which under substantive law determines the rights and
     liabilities of the parties"; appellant did not satisfy this
     standard because the victim's violent character was not an
     essential element of the murder charge or of his defense of
     accident; appellant sought to use the proffered testimony
     circumstantially rather than as a direct substantive issue,
     and, therefore, it was not admissible under Rule 405(b). 

9.   Criminal law -- purpose of Miranda warnings -- resolution of
     whether suspect was "in custody." -- The Miranda warnings were
     intended to inhibit abuse of the federal constitutional Fifth
     Amendment right against self-incrimination of a person by
     reason of custodial interrogation by law enforcement officers;
     "in custody" means a person who is deprived of his freedom of
     action by formal arrest or restraint on freedom of movement of
     the degree associated with a formal arrest; in resolving the
     question of whether a suspect was in custody at a particular
     time, the only relevant inquiry is how a reasonable man in the
     suspect's shoes would have understood his situation. 

10.  Criminal law -- review of voluntariness of confession -- trial
     judge's ruling not clearly against the preponderance of the
     evidence. -- On appeal, the court makes an independent
     determination of the voluntariness of a confession and does
     not reverse the trial court, absent a finding of clear error,
     recognizing that conflicts in the testimony are for the trial
     court to resolve; here, the record showed that appellant made
     the challenged pre-arrest statement in the hospital's waiting
     room after the sheriff had twice advised appellant that he was
     not there to take any statements and just wanted to locate and
     secure the weapon, and that, after the challenged statement
     was made, the sheriff left appellant unattended in the waiting
     room to locate the weapon, then returned to appellant in the
     waiting room approximately ten minutes later and verbally
     advised appellant of his Miranda rights; on these facts the
     trial judge's ruling was not clearly against the preponderance
     of the evidence.   

11.  Motions -- motion for mistrial properly denied -- trial court
     did not abuse its discretion. -- Where the trial judge was in
     a superior position to evaluate the prejudicial effect of the
     witness's display upon the jury and to evaluate the
     credibility of the witnesses regarding the lunchtime incident,
     and the record, as abstracted, failed to show that appellant
     obtained any cautionary instruction to the jury, the appellate
     court found no abuse of discretion was committed by the trial
     court in denying appellant's third motion for mistrial;
     emotional outbursts by the relatives of murder victims are not
     unusual and are difficult to control; the trial court
     exercises a wide latitude of discretion in the control of the
     trial and resorts to the drastic remedy of a mistrial as a
     last resort.


     Appeal from Pope Circuit Court, Fifth Judicial District; John
S. Patterson, Judge; reversed and remanded.
     Stuart Vess, for appellant.
     Winston Bryant, Att'y Gen., by:  J. Brent Standridge, Asst.
Att'y Gen., for appellee.

     Donald L. Corbin, Justice.
Associate Justice Donald L.
Corbin, 1-22-96
*ARKREP7*




BOB SOLOMON,
                    APPELLANT,

V.

STATE OF ARKANSAS,
                    APPELLEE,



CR 95-548



APPEAL FROM THE POPE COUNTY
CIRCUIT COURT, FIFTH JUDICIAL
DISTRICT, NO. CR 93-241,
HON. JOHN S. PATTERSON, JUDGE,





REVERSED AND REMANDED.




     Appellant, Bob Solomon, appeals the judgment of the Pope
County Circuit Court convicting him of the first-degree murder of
his spouse, Janice Solomon, and sentencing him to imprisonment for
forty years.  Jurisdiction is properly in this court pursuant to
Ark. Sup. Ct. R. 1-2(a)(2).  Appellant admitted that he shot the
victim, but argued that the shooting was accidental.  Appellant
raises five arguments for reversal, among them that it was error
for the trial court to refuse to exclude three of the state's
witnesses from the courtroom pursuant to the witness-sequestration
rule, Ark. R. Evid. 615.  We agree and reverse for a new trial.  We
find appellant's other arguments are meritless, but discuss them
for the benefit of the trial court upon retrial.
                   Witness-sequestration rule
     At the commencement of the trial, the trial court ruled that
state's witnesses, Jennifer Patty, Peggy Barker, and Teresa Patty,
the victim's daughters, could remain in the courtroom despite
appellant's invocation of the witness-sequestration rule.  Rule
615.  The trial court stated that the victim's daughters were
exempted from the witness-sequestration rule by Ark. R. Evid. 616,
which provides that the victim of the crime, as well as the parent,
guardian or custodian of a minor victim, has the right to be
present during the trial notwithstanding Rule 615.  As the state
concedes, the trial court ruled in error since none of the victim's
daughters was the victim of the murder and no minor victim was
involved.  See Williams v. State, 320 Ark. 67, 894 S.W.2d 923
(1995).
     The state argues that the trial court's error does not warrant
reversal, however, because appellant has failed to demonstrate
prejudice.  Appellant argues he was prejudiced by the fact that the
victim's daughters were allowed to listen to the other testimony,
thereby allowing them a clear opportunity to shape their
testimonies to match the other witnesses.  Prejudice is not
presumed and we do not reverse absent a showing of prejudice.  King
v. State, 322 Ark. 51, 907 S.W.2d 127 (1995); Wallace v. State, 314
Ark. 247, 862 S.W.2d 235 (1993); Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), cert. denied, 470 U.S. 1085 (1985).   
     Rule 615 expressly provides that "the court shall order
witnesses excluded so that they cannot hear the testimony of other
witnesses[.]"  We have stated that the purpose of Rule 615 is to
expose inconsistencies in the testimonies of different witnesses
and "`to prevent the possibility of one witness's shaping his or
her testimony to match that given by other witnesses at trial.'" 
King, 322 Ark. 51, 55, 907 S.W.2d 127, 129 (quoting Fite v. Friends
of Mayflower, Inc., 13 Ark. App. 213, 682 S.W.2d 457 (1985)). The
state called thirteen witnesses in all, six of whom testified prior
to the victim's daughters.  The victim's daughters were not
recalled to the stand.   
     Briefly summarized, the testimony of the state's six witnesses
who testified before the victim's daughters is as follows. 
Attorney William F. Smith first testified that the victim was his
former client, that part of his practice consisted of divorce
cases, and that, approximately one month prior to the shooting, the
victim inquired about his retainer for a divorce action and stated
that she might be coming to see him.  The next four witnesses,
Nurses Paula McAlister and Becky McCain and Drs. Roxanne Marshall
and Charles Woodrow Jones, Jr., each testified to attending the
victim at St. Mary's Hospital emergency room in Russellville, where
the victim was taken by appellant after the shooting.  The sum of
these witnesses' testimonies was that the victim was alert and that
she stated that she and her husband had argued about a divorce,
that her husband had shot her, and that it was no accident.  Nurse
McAlister also testified that the victim stated that she wanted to
see her daughters.  The state's sixth witness, Dr. Mark Myers,
testified as to the details of the victim's gunshot injury which he
observed as he performed surgery on the victim at St. Mary's.  The
victim died during the surgery.
     Jennifer Patty, the victim's twenty-two-year-old daughter,
next testified that she went to the emergency room because
appellant called and told her that she was needed there, and that
he and the victim were out target shooting when the victim stepped
in the way and he shot her.  Ms. Patty testified that her sister,
Peggy, met her at the emergency room later on, and that they went
to the waiting room where they found appellant.  Ms. Patty
testified that she heard appellant tell Sheriff Winters in the
waiting room that he had told the victim he was "gonna blow her
head off."
     Peggy Barker, the victim's eldest daughter, next testified
that when she went to the emergency room one of the nurses let her
see the victim.  Ms. Barker stated that the victim took her hand
and told her to "tell them" that she and appellant had been arguing
and that appellant had shot her on purpose.  Ms. Barker testified
that she remembered talking to Pope County Sheriff's Office
Investigator James Hardy after the shooting and telling him that
the victim had told her that appellant had shot her on purpose. 
Ms. Barker testified that appellant had told her that he had argued
with the victim over a credit problem.  Ms. Barker testified that
she never told appellant's counsel that she knew appellant would
not intentionally kill the victim.  Ms. Barker also testified as
regards numerous other matters that were not addressed by any
witness who testified before her.
     Teresa Patty, the victim's twenty-three-year-old daughter,
next testified that, shortly after the shooting, appellant told her
that he and the victim were arguing about a credit problem, that he
got out the gun, that they were "arguing over the gun," and that he
shot her, but had not meant to.  Ms. Patty testified that she was
the closest of her sisters to appellant.  Ms. Patty's testimony did
not reveal whether she was present at St. Mary's Hospital on the
day of the shooting.
     We find appellant has demonstrated prejudice.  This case was
decided by the jury upon the conflicting testimonies presented as
regards the issue of appellant's intent when he shot the victim. 
It illustrates the need for the witness-exclusion rule to prevent
the possibility of any of the victim's daughters from shaping her
testimony to that of a preceding witness.  King, 322 Ark. 51, 907 S.W.2d 127; see also Fite, 13 Ark. App. 213, 682 S.W.2d 457
(decided under the presumed-prejudice rule of law). 
     Accordingly, we reverse the judgment of conviction and remand
for a new trial.  The following points of asserted error are
addressed since they are likely to arise on retrial.
                Sufficiency of evidence of intent
     Appellant argues that the evidence was insufficient to prove
that he acted with the purpose of causing the victim's death.  In
determining whether there is substantial evidence, we review the
evidence in the light most favorable to the appellee, and it is
permissible to consider only that evidence which supports the
guilty verdict.  Williams v. State, 321 Ark. 635, 906 S.W.2d 677
(1995).  Substantial evidence is that which is forceful enough to
compel reasonable minds to reach a conclusion one way or another. 
Id.   
     Appellant testified that he shot the victim as they were
driving in their 1984 Ford pickup truck on a state highway near
Moreland on the afternoon of July 17, 1993.  The evidence showed
that appellant and the victim were seated as driver and passenger,
respectively, when appellant fired a single bullet into the
victim's chest with a Smith and Wesson semi-automatic nine
millimeter caliber firearm.  Appellant testified that, at the time
of the shooting, he and the victim were arguing about a credit
problem, that the victim had become very upset, and, that, with one
hand, he retrieved the weapon, which he knew to be loaded, from the
console between their seats to put the weapon beyond the victim's
reach.  Appellant testified that the victim simultaneously grabbed
the weapon's barrel and it accidentally discharged.  As noted
above, appellant's story was contradicted by the testimony of the
victim's emergency-room health-care providers who stated that she
told them that appellant shot her on purpose.    
     Resolution of the conflicting versions of these facts rested
with the jury.  Harris v. State, 262 Ark. 680, 561 S.W.2d 69
(1978).  Clearly, the jury did not believe appellant's version. 
There is substantial evidence to support the conviction for first-
degree murder.
                  Prior bad acts of the victim 
     Appellant also argues that proffered evidence of the victim's
character, by testimony of specific instances of her prior violent
conduct toward him, was erroneously excluded.  Our review is
limited to the proffered cross-examination testimony of state's
witness, Pope County Sheriff Jay Winters, that he heard appellant
tell another law enforcement officer that the victim had pulled a
gun on him during their previous arguments and, once, had gotten
mad and almost shot off his ear.  Ark. R. Evid. 103; Stewart v.
State, 316 Ark. 153, 870 S.W.2d 752 (1994).  Appellant asserts the
excluded testimony was relevant to his defense of accident. 
Because appellant's defense was accident, rather than self-defense,
the trial court excluded testimony of the victim's prior bad acts. 
     Appellant argues that the proffered testimony was admissible
as evidence of a pertinent trait of the victim's character, in
light of his defense of accident, pursuant to Ark. R. Evid. 404(a),
and as evidence of other acts by the victim that were relevant to
proof of his intent on the day of the shooting, pursuant to Ark. R.
Evid. 404(b).  We need not address this argument on its merits. 
Even assuming Sheriff Winters's excluded evidence was admissible
under Rule 404, it was not admissible under Ark. R. Evid. 405,
which governs methods of proving character.       
     Rule 405 generally limits proof of character to reputation or
opinion testimony.  However, pursuant to Rule 405(a), a character
witness may testify on cross-examination as to relevant specific
instances of conduct.  Wilburn v. State, 289 Ark. 224, 711 S.W.2d 760 (1986).  The abstract, however, reveals no evidence from
Sheriff Winters, on direct examination, regarding the victim's
character.  Hence, the proffered evidence was not admissible under
Rule 405(a) as it was beyond the scope of cross-examination.  Ark.
R. Evid. 611.
     Rule 405(b) also permits proof of character by specific
instances of conduct in cases in which character or a trait of
character is an essential element of a charge, claim or defense. 
Such a character trait must be "an operative fact which under
substantive law determines the rights and liabilities of the
parties."  McClellan v. State, 264 Ark. 223, 226, 570 S.W.2d 278,
280 (1978).  Appellant does not satisfy this standard because the
victim's violent character was not an essential element of the
murder charge or of his defense of accident.  As the trial court
correctly ruled, had appellant's defense been self-defense, the
result might have been otherwise.  Thompson v. State, 306 Ark. 193,
813 S.W.2d 249 (1991).  Appellant sought to use the proffered
testimony circumstantially rather than as a direct substantive
issue, and, therefore, it was not admissible under Rule 405(b). 
McClellan, 264 Ark. 223, 570 S.W.2d 278.  
         Suppression of appellant's pre-arrest statement
     Sheriff Winters testified:  "[Appellant] said that he pointed
the gun at her and said, `I'm going to blow your head off'; but
that he didn't mean it and that the gun just went off."  Appellant
argues his statement should have been suppressed because it was
given before the Miranda warnings were administered.  The trial
court ruled that the testimony was admissible because appellant's
statement was voluntarily given under circumstances that did not
constitute a custodial situation that required prior Miranda
warnings.    
     Appellant testified that he did not make the challenged
statement.
     The Miranda warnings were intended to inhibit abuse of the
federal constitutional Fifth Amendment right against
self-incrimination of a person by reason of custodial interrogation
by law enforcement officers.  Stone v. State, 321 Ark. 46, 900 S.W.2d 515 (1995).  "In custody" means a person who is deprived of
his freedom of action by formal arrest or restraint on freedom of
movement of the degree associated with a formal arrest.  Id.  In
resolving the question of whether a suspect was in custody at a
particular time, the only relevant inquiry is how a reasonable man
in the suspect's shoes would have understood his situation.  State
v. Spencer, 319 Ark. 454, 892 S.W.2d 484 (1995).
     On appeal, we make an independent determination of the
voluntariness of a confession.  Trull v. State, 322 Ark. 157, 908 S.W.2d 83 (1995).  We do not reverse the trial court, absent a
finding of clear error, recognizing that conflicts in the testimony
are for the trial court to resolve.  Id.  Here, the record shows
that appellant made the challenged pre-arrest statement in the
hospital's waiting room after Winters had twice advised appellant
that he was not there to take any statements and just wanted to
locate and secure the weapon, and that, after the challenged
statement was made, Winters left appellant unattended in the
waiting room to locate the weapon, then returned to appellant in
the waiting room approximately ten minutes later and verbally
advised appellant of his Miranda rights.  On these facts, we are
not persuaded that the trial judge's ruling was clearly against the
preponderance of the evidence.   
                            Mistrial
     Appellant argues it was error to refuse his three motions for
mistrial based upon the emotional displays of the victim's
daughters in the presence of the jury.  The first two motions
related to incidents that occurred because of the Rule 615
violation and therefore will not arise on retrial.  
     The third motion was made on the third day of trial, during an
in-camera proceeding that was conducted when the court reconvened
following its lunch break after closing arguments.  Appellant moved
for a mistrial on the ground that the victim's daughters had
approached the jury in close proximity as they were escorted by the
bailiff from the courthouse to a van to conduct them to lunch, and
had created a scene by screaming "I want my momma" and crying.  The
bailiff, when questioned by the trial court, corroborated
appellant's description of the scene.  The bailiff also stated that
he had seen no one trying to speak to the jury and that he had
hurried the jury into the van.  The bailiff stated that he had not
seen the victim's family at the scene of the disruption before, but
had seen appellant's family there every morning.  The trial judge
denied the motion, but stated that he would admonish the families
not to engage in similar displays.  
     Appellant then informed the trial judge that two or three
other bystanders, including Mr. John Lynch, who were friends and
relatives of appellant, had observed the lunch scene and would
testify in accordance with the bailiff.  Subsequently, appellant
filed a motion for a new trial and attached Mr. Lynch's affidavit
that he had observed two of the victim's daughters "laughing and
snickering and making light of the situation" after the bailiff had
left with the jury.  
     We have held that emotional outbursts by the relatives of
murder victims are not unusual and are difficult to control. 
Venable v. State, 260 Ark. 201, 538 S.W.2d 286 (1976).  The trial
court exercises a wide latitude of discretion in the control of the
trial and resorts to the drastic remedy of a mistrial as a last
resort.  Id.  The record, as abstracted, fails to show that
appellant obtained any cautionary instruction to the jury.  The 
only indication that the emotional display was extreme or was
orchestrated was Mr. Lynch's affidavit.  Clearly, the trial judge
was in a superior position to evaluate the prejudicial effect of
the display upon the jury and to evaluate the credibility of the
witnesses, including Mr. Lynch, regarding the lunchtime incident. 
We conclude no abuse of discretion was committed by the trial court
in denying appellant's third motion for mistrial.
     The judgment is reversed on the basis of the Rule 615
violation and remanded for retrial.