Lee v. State

Ledell LEE v. STATE of Arkansas

CR 96-590                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered November 11, 1996


1.   Trial -- closing arguments -- when reversal may be required. -
     - The trial court is given broad discretion to control counsel
     in closing arguments, and the court does not interfere with
     that discretion absent a manifest abuse of it; closing remarks
     that require reversal are rare and require an appeal to the
     jurors' passions.  

2.   Trial -- appellee's closing argument merely rebutted
     appellant's closing -- no error in trial court's refusal to
     grant mistrial. -- Where appellant's counsel devoted his
     entire closing argument to the impact of appellant's death
     sentence in an unrelated case on his sentence in this case,
     the deputy prosecutor's remark was seen as a rebuttal of
     appellant's own closing remarks; because appellant opened the
     door to the prosecutor's closing remarks, the trial court did
     not err in refusing to grant a mistrial.

3.   Criminal law -- rape and kidnapping charges -- factors
     considered in determining whether a separate kidnapping
     conviction is supportable. -- It is only when the restraint
     exceeds that normally incidental to the crime that the rapist
     or robber should also be subject to prosecution for
     kidnapping; the kind of restraint that is considered necessary
     to consummate rape is that which is necessary to consummate
     the act; any additional restraint will support a conviction
     for kidnapping ; included among the factors that have been
     considered by courts in determining whether a separate
     kidnapping conviction is supportable are whether the movement
     or confinement (1) prevented the victim from summoning
     assistance; (2) lessened the defendant's risk of detection; or
     (3) created a significant danger or increased the victim's
     risk of harm.    

4.   Criminal law -- restraint employed by appellant not merely
     incidental to his rape of victim -- evidence supported
     appellant's separate conviction for kidnapping. -- Where
     appellant dragged the victim for approximately one city block
     from a lighted city street to a dark area behind a school,
     thus preventing the victim from summoning assistance and
     lessening his risk of detection, and where the restraint
     itself posed a substantial risk of harm to the victim, who
     suffered both a bruised face and swollen neck from having been
     dragged and strangled to the point that she nearly lost
     consciousness, the evidence supported the conclusion that the
     restraint employed exceeded that which was necessary to
     effectuate the crime of rape and thus supported appellant's
     separate conviction for kidnapping.
 
5.   Civil procedure -- motion for continuance -- when trial
     court's ruling will be overturned. -- To obtain a continuance,
     the appellant must make a showing of good cause; he must also
     demonstrate prejudice from the denial of the continuance; when
     a motion for continuance is based on a lack of time to
     prepare, the court will consider the totality of the
     circumstances; the burden of showing prejudice is on the
     appellant; the trial court's ruling will not be overturned
     unless the appellant has demonstrated an abuse of discretion. 
      

6.   Civil procedure -- no prejudice shown in trial court's denial
     of continuance motion -- no abuse of discretion found. --
     Where the evidence that appellant claimed he would have
     introduced had he been granted a continuance was stipulated to
     by the State, appellant's argument that he lacked time to
     prepare because the trial was his third in four weeks was
     meritless; appellant failed to meet his burden of
     demonstrating prejudice.


     Appeal from Pulaski Circuit Court, First Division; Marion
Humphrey, Judge; affirmed.
     Montgomery, Adams, & Wyatt, by:  Dale E. Adams, for appellant.
     Winston Bryant, Att'y Gen., by:  Kent G. Holt, Asst. Att'y
Gen., for appellee.

     Bradley D. Jesson, Chief Justice.
     The appellant, Ledell Lee, was convicted of the rape,
kidnapping, and robbery of a Jacksonville woman and was sentenced
to consecutive terms of life, fifty years, and forty years,
respectively.  He raises three issues of appeal, none of which has
merit.  We affirm.
     On the evening of March 7, 1991, the fifty-year-old victim was
returning home from Knight's Grocery Store on Main Street in
Jacksonville.  As she was walking in front of Jacksonville
Elementary School, she noticed that a tall, black male was
following her.  When she stepped off the sidewalk to allow the man
to pass her, he grabbed her around the neck and began strangling
her, causing her to drop her groceries.  The man began rummaging
through her purse in an attempt to find money.  Warning the victim
to stay quiet if she wanted to live, the man then dragged her
approximately one city block to the back of the school building
where there was no light.  When she attempted to cry out for help,
the man would strangle her until she thought she would pass out. 
At one point, the victim thought she was going to die.          
     Once behind the school building, the man removed the victim's
belt and bound her hands with it.  Dumping the contents of her
purse, he discovered an apron that he used to cover her face. 
After removing the victim's tennis shoes, jeans, girdle, and
panties, he demanded oral sex.  When the victim refused, the man
vaginally raped her.  The man then left the victim, her hands still
bound and her face blindfolded.  
     Following a rape-kit examination that was performed on the
victim, semen samples were submitted to the State Crime Lab for
analysis.  Appellant and another man became suspects in the case. 
Their blood samples as well as the victim's blood were submitted
for testing.  The State's expert who performed the DNA analysis
testified that the probability of the perpetrator being someone
other than appellant was one in eighty-five million from the black
population.  The jury found appellant guilty as charged, and he
appeals.      
                       I. Closing argument
     Appellant first argues that the trial court erred in denying
his motion for mistrial, which he made after the State presented
its rebuttal argument during the penalty phase.  During appellant's
closing argument, his counsel posed to the jurors that the State
had wasted two days of their time to try appellant when it had
already obtained a death sentence against him in an unrelated
capital-murder case.  Urging that appellant's death sentence was
"going to be carried out," his counsel asked the jury to recommend
that appellant receive the minimum sentences for his convictions. 
During rebuttal, the deputy prosecutor responded:
          Ladies and gentlemen, [defense counsel] argues to
     you that you know that the death penalty will be carried
     out.  Do you know that?  

Appellant moved for mistrial on the basis that the State was
improperly minimizing the jury's responsibility.  In response to
the motion, the trial court admonished the jury as follows:
          I will instruct the jury.  The defendant has
     received the death penalty, so that is the sentence of
     the Court of the Second Division of Pulaski County
     Circuit Court. 
          You may now pass to the jury room to deliberate on
     sentencing.    

     The trial court is given broad discretion to control counsel
in closing arguments, and we do not interfere with that discretion
absent a manifest abuse of it.  Mills v. State, 322 Ark. 647, 910 S.W.2d 682 (1995).  Closing remarks that require reversal are rare
and require an appeal to the jurors' passions.  Id.  
     Appellant's counsel devoted his entire closing argument to the
impact of appellant's death sentence in the unrelated case on his
sentence in this case.  When reviewing the deputy prosecutor's
remark in light of these circumstances, we do not view it as an
appeal to the jurors' passions, but as a rebuttal of appellant's
own closing remarks.  We have recognized the propriety of "fighting
fire with fire" when one of the parties makes an improper closing
argument.  See Larimore v. State, 317 Ark. 111, 977 S.W.2d 570
(1994).  By opening the door, that which might have been
impermissible becomes permissible.  See McFadden v. State, 290 Ark.
177, 717 S.W.2d 812 (1986).  Because appellant opened the door to
the prosecutor's closing remarks, we cannot say that the trial
court erred in refusing to grant a mistrial.

                   II. Kidnapping conviction  
     Next, appellant claims that there was insufficient evidence to
support a separate charge for kidnapping because the State failed
to show that he employed any greater restraint on the victim than
that normally incident to rape.
     A person commits the offense of kidnapping if, without
consent, he restrains another person so as to interfere
substantially with her liberty with the purpose of inflicting
physical injury upon her or of engaging in sexual intercourse,
deviate sexual activity, or sexual contact with her. Ark. Code Ann.
 5-11-102(a)(4) (1987).  In defining kidnapping, the Criminal Code
speaks in terms of restraint rather than removal.  The Commentary
to this statute explains that the exclusion of de minimis
restraints from the definition of kidnapping is desirable since
offenses such as rape or robbery necessarily contemplate
restrictions on the victim's liberty while the crime is actually
committed.  
     In Arkansas, it is only when the restraint exceeds that
normally incidental to the crime that the rapist or robber should
also be subject to prosecution for kidnapping.  Summerlin v. State,
296 Ark. 347, 756 S.W.2d 908 (1988).  The kind of restraint that is
considered necessary to consummate rape is that which is necessary
to consummate the act.  Harris v. State, 299 Ark. 433, 774 S.W.2d 121 (1989).  Any additional restraint will support a conviction for
kidnapping.  Id.  Among the factors that have been considered by
courts in determining whether a separate kidnapping conviction is
supportable include whether the movement or confinement (1)
prevented the victim from summoning assistance; (2) lessened the
defendant's risk of detection; or (3) created a significant danger
or increased the victim's risk of harm.  Frank J. Wozniak,
Annotation: Seizure of Detention for Purpose of Committing Rape
Robbery, or Other Offense as Constituting Separate Crime of
Kidnapping, 39 A.L.R. 5th 283, 358 (1996).   
     In support of his argument that the kidnapping conviction
should not stand, appellant cites Summerlin v. State, supra, and
Shaw v. State, 304 Ark. 381, 802 S.W.2d 468 (1991).  In Summerlin,
the victim was jogging along a lakeside path when she was
approached by her attacker, who was nude and holding his penis.
When the victim declined his offer to "go for a swim," he tackled
her from behind and tried to take off her shorts.  While the victim
was able to escape, her attacker was charged and convicted of
attempted rape and kidnapping.  We reversed the kidnapping
conviction, concluding that the restraint employed did not exceed
that normally incident to attempted rape.  In Shaw, the victim
voluntarily got into her attacker's vehicle, but was later driven
to a dead-end road and raped.  We reversed the kidnapping
conviction due to the victim's testimony that she consented to her
attacker's actions until the point at which he raped her.   
     Unlike the facts in Summerlin and Shaw, the restraint employed
by appellant in this case was not merely incidental to his rape of
the victim.  Appellant dragged the victim for approximately one
city block from a lighted city street to a dark area behind a
school.  We cannot say that, standing alone, the length of
asportation supports the kidnapping charge.  However, when
combining the dragging of the victim this distance with other
factors present, we conclude that the restraint employed by
appellant supports a separate conviction for kidnapping.  By taking
the victim to a dark and secluded place, appellant allowed the rape
to be carried out more easily, thus preventing the victim from
summoning assistance and decreasing his risk of being caught. 
Moreover, the restraint itself posed a substantial risk of harm to
the victim, who suffered both a bruised face and swollen neck from
having been dragged and strangled to the point that she nearly lost
consciousness.  Under these circumstances, we hold that the
restraint employed exceeded that which was necessary to effectuate
the crime of rape, and thus supported appellant's separate
conviction for kidnapping. 

                  III. Motion for continuance 
     Finally, appellant argues that the trial court erred in
denying his motion for continuance.  In order to have a continuance
granted, appellant must make a showing of good cause.  ARCP 27.3. 
He must also demonstrate prejudice from the denial of the
continuance. Davis v. State, 318 Ark. 212, 885 S.W.2d 292 (1994). 
When a motion for continuance is based on a lack of time to
prepare, we will consider the totality of the circumstances.  Id. 
The burden of showing prejudice is on appellant; we will not
overturn the trial court's ruling unless appellant has demonstrated
an abuse of discretion.  King v. State, 324 Ark. 205, 862 S.W.2d 229 (1993).    In this case, the crimes with which appellant was
charged were committed on March 7, 1991.  The State's information
was filed on September 23, 1993.  Represented by attorney
Christopher Mercer, appellant was arraigned on September 23, 1993. 
In October of 1993, attorney Mercer was relieved and the public
defender was appointed.  That same month, appellant was committed
to the State Hospital for evaluation.  In March of 1994, the State
Hospital reported that he was competent and fit to proceed.  On
March 14, 1995, the trial court relieved the public defender and
appointed Dale Adams as counsel.  After unsuccessfully moving for
a continuance on March 19, 1995, August 28, 1995, and again at
trial, appellant's jury trial began on October 18, 1995, at which
he was represented by Adams and attorney Buddy Hendry.  
     We initially observe that appellant, who had waived speedy
trial, was tried more than two years after the State had filed
charges against him, and over four years after the commission of
the offense.  Nevertheless, appellant's counsel argues generally
that he lacked time to prepare due to the fact that appellant's
trial was his third trial in four weeks.   Specifically, he
proffered at trial that, had he had more time, he would have
subpoenaed Don Smith and Ken King of the State Crime Lab to
testify.  According to Mr. Adams, King would have testified that
the hair samples found at the rape scene did not match appellant's,
and Smith would have testified that the fingerprints taken were
insufficient for identification.  However, the State agreed to
stipulate to their reports.  Under these circumstances, appellant
has not met his burden of demonstrating prejudice.
     The record has been examined in accordance with Ark. Sup. Ct.
R. 4-3(h), and no prejudicial error has been found that would
warrant reversal.
     Affirmed.