Scott v. State

Antwan Terrell SCOTT v. STATE of Arkansas

CR 96-20                                           ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered July 8, 1996


1.   Evidence -- evidence of motive behind a criminal offense is
     generally admissible. -- Generally, evidence of motive behind
     a criminal offense is admissible; the State is entitled to
     produce evidence "showing all circumstances which explain the
     act, show a motive for acting, or illustrate the accused's
     state of mind"; where the purpose of evidence is to disclose
     a motive for killing, anything and everything that might have
     influenced the commission of the act may, as a rule, be shown. 
     
2.   Evidence -- evidence of gang membership presented in testimony
     -- evidence was relevant to show motive. -- Where appellant 
     admitted membership in a gang and then revealed that the
     victim was a member of a rival gang, the evidence of gang
     membership was relevant to show appellant's motive for
     shooting the victim.

3.   Evidence -- weighing of probative value of evidence against
     its danger of unfair prejudice left to trial court's
     discretion -- trial court properly admitted evidence of gang
     affiliation. -- Rule 403 of the Arkansas Rules of Evidence
     allows a trial court to exclude relevant evidence if its
     probative value is substantially outweighed by the danger of
     unfair prejudice; this weighing is a matter left to the trial
     court's sound discretion and will not be reversed absent a
     showing of manifest abuse; under these circumstances, the
     trial court properly found that the prejudicial effect of the
     gang-affiliation evidence was not so great as to outweigh its
     probative value.

4.   Evidence -- one who opens a line of questioning cannot later
     object to it -- no prejudicial error where erroneously
     admitted evidence is cumulative. -- One who opens up a line of
     questioning or is responsible for error should not be heard to
     complain of that for which one was responsible; where similar
     evidence was previously admitted without objection, the
     admission of later testimony on the same subject is not
     prejudicial; the court has refused to find prejudicial error
     where the evidence erroneously admitted was merely cumulative;
     nor will the appellate court reverse in the absence of
     prejudice. 

5.   Evidence -- evidence objected to first brought up by defense
     counsel -- evidence cumulative -- no prejudice shown. -- Where
     it was defense counsel's direct examination that first brought
     the matter of drug use to the attention of the jury, the
     evidence of which he complained was merely cumulative; under
     these circumstances, he could show no prejudice.


     Appeal from Pulaski Circuit Court, First Division; Marion
Humphrey, Judge; affirmed.
     J. Blake Hendrix, for appellant.
     Winston Bryant, Att'y Gen., by:  Vada Berger, Asst. Att'y
Gen., for appellee.

     David Newbern, Justice.
     *ADVREP*SC4*
     

                                   CR96-20
ANTWAN TERRELL SCOTT               Opinion Delivered:

          Appellant                Appeal from Pulaski Circuit
                                   Court, First Division, 
     v.                            (CR 94-3056)

STATE OF ARKANSAS                  Honorable Marion Humphrey,
                                   Circuit Judge
          Appellee
                                   Affirmed





                     David Newbern, Justice.

     Antwan Terrell Scott was charged with first-degree murder
after witnesses identified him as the person who shot and killed
Corey Jones.  He was convicted by jury and sentenced to forty years
imprisonment.  He contends on appeal that the Trial Court should
have suppressed all evidence of his gang membership and should have
granted his motion for mistrial when it was revealed that he smoked
marijuana on the evening of the murder.  The conviction is affirmed
because the gang-affiliation evidence was admissible to show the
motive for the crime and the evidence of drug use was initially
brought out by defense counsel during its case-in-chief.    
     On the evening of September 7, 1994, William Watkins, an
officer with the Little Rock Police Department, received a
disturbance call concerning the discharge of firearms.  Officer
Watkins responded to the call and found three young men standing
over the body of the victim, Corey Jones.  Mr. Jones had been
fatally shot one time in the chest with a small caliber firearm.
     Detective Ronnie Smith was assigned to the case and questioned
the witnesses to the shooting.  As a result of the investigation,
the police determined that Mr. Scott was the shootist.  Mr. Scott,
who was seventeen years old at the time, was transported to the
police station by a school resources officer on September 19, 1994. 
He was mirandized and questioned on his role in the shooting.
     Although Mr. Scott initially denied being at the party, and
later denied his role as the shootist, he ultimately admitted that
he fired the fatal shot.  According to the statement given by Mr.
Scott, he went to the party with two of his friends, left the
party, then returned.  A short time after his return "about fifteen
Crips and Folks started coming in."  
     Mr. Scott told the police that he and his friends left the
house in order to avoid trouble, but approximately five minutes
later the victim and several of his friends followed them out of
the door.  When the victim walked out, Mr. Scott saw him reach for
a handgun and reacted by pulling his own .25 caliber pistol, firing
one shot, and fleeing from the scene.  He explained his actions by
saying that he was in fear for his life.
     Mr. Scott was charged with first-degree murder.  Prior to
trial he filed motions in limine to suppress any evidence of gang
membership.  The Trial Court ruled that the evidence would be
admissible because it was relevant to the motive for the shooting. 
     At trial, the State presented evidence that Mr. Scott was a
member of the Vice Lords gang and the victim was a member of the
Folks gang.  Evidence was also presented that the members of the
two gangs did not get along.  The State theorized to the jury that
the gang rivalry was the motive behind the killing.
     Mr. Scott's brother, Rodney Scott, testified for the defense. 
On direct examination he stated that he did not see his brother
fire a weapon.  However, he admitted that they were in the yard
rolling up a marijuana cigarette just prior to the shooting.  On
cross-examination, he repeated his admissions concerning drug use. 
Following the last admission, Mr. Scott moved for a mistrial but
requested no other relief.  The Trial Court denied the motion.

                      1.  Gang affiliation
     Generally, evidence of motive behind a criminal offense is
admissible.  Cooper v. State, 324 Ark. 135, 919 S.W.2d 205 (1996); 
Williams v. State, 321 Ark. 344, 902 S.W.2d 767 (1995).  The State
is entitled to produce evidence "showing all circumstances which
explain the act, show a motive for acting, or illustrate the
accused's state of mind."  Smith v. State, 310 Ark. 247, 837 S.W.2d 279 (1992);  Richmond v. State, 302 Ark. 498, 791 S.W.2d 691
(1990).  See also Snell v. State, 290 Ark. 503, 721 S.W.2d 628
(1986), cert. denied, 484 U.S. 872 (1987), 490 U.S. 1075 (1989). 
Where the purpose of evidence is to disclose a motive for killing,
anything and everything that might have influenced the commission
of the act may, as a rule, be shown.  Cooper v. State, supra;  See
Sullivan v. State, 171 Ark. 768, 286 S.W. 939 (1926). 
     In Mr. Scott's statement he admitted membership in a gang
called the Vice Lords.  He then revealed that the victim was a
member of the Folks gang, and that the members of the two gangs did
not get along.  Quawn Marshall, a witness for the State testified
that Corey Jones was a Folk and Mr. Scott was a Vice Lord.  He
stated that the Crips and Folks did not get along with the Vice
Lords.  Brad Howard, another witness for the State, also identified
the victim and Mr. Scott as members of rival gangs.  We hold that
the evidence of gang membership was relevant to show Mr. Scott's
motive for shooting the victim.
     Rule 403 of the Arkansas Rules of Evidence allows a trial
court to exclude relevant evidence if its probative value is
substantially outweighed by the danger of unfair prejudice. 
Passley v. State, 323 Ark. 301, 915 S.W.2d 248 (1996);  Larimore v.
State, 317 Ark. 111, 877 S.W.2d 570 (1994).  This weighing is a
matter left to the Trial Court's sound discretion and will not be
reversed absent a showing of manifest abuse.  Passley v. State
supra;  Billett v. State, 317 Ark. 346, 877 S.W.2d 913 (1994).  We
hold that under these circumstances the Trial Court properly found
that the prejudicial effect of the gang-affiliation evidence was
not so great as to outweigh its probative value.

                          2.  Mistrial
     On direct examination a defense witness, Rodney Scott, stated
that just prior to the shooting "We [including Mr. Scott] was
rolling up a sack of weed."  On cross-examination, Rodney Scott
again mentioned, without an objection by the defense, that they
were "rolling up a blunt" in the yard before the shooting occurred. 
Later in the cross-examination, the State asked Rodney if he drank. 
Rodney denied drinking anything but again admitted that he smoked
"dope", and admitted that his brother, the appellant, smoked "weed"
on the night of the shooting. 
     After the last admission, defense counsel moved for a mistrial
on the ground that the evidence of the drug use was not admissible. 
The Trial Court noted that Rodney mentioned marijuana use on direct
examination and denied the motion.  Mr. Scott did not ask for any
other relief.
     One who opens up a line of questioning or is responsible for
error should not be heard to complain of that for which one was
responsible.  Russell v. State, 306 Ark. 436, 815 S.W.2d 929
(1991);  Berry v. State, 278 Ark. 578, 647 S.W.2d 453 (1983).  The
record shows that it was defense counsel's direct examination which
first elicited testimony concerning drug use.  Where similar
evidence was previously admitted without objection, the admission
of later testimony on the same subject is not prejudicial.  Hooper
v. State, 311 Ark. 154, 842 S.W.2d 850 (1992).  We have refused to
find prejudicial error where the evidence erroneously admitted was
merely cumulative.  Griffin v. State, 322 Ark. 206, 909 S.W.2d 625
(1995);  Bunn v. State, 320 Ark. 516, 898 S.W.2d 450 (1995); 
Gibson v. State, 316 Ark. 705, 875 S.W.2d 58 (1994); Snell v.
State, supra.  Nor will we reverse in the absence of prejudice. 
Bunn v. State, supra.
     Mr. Scott was responsible for bringing the matter of drug use
to the attention of the jury.  The evidence of which he complains
was merely cumulative.  Under these circumstances he can show no
prejudice.
     Affirmed.
     Dudley, J., not participating.