Puckett v. State

Thomas Scott PUCKETT v. STATE of Arkansas

CR 96-907                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                  Opinion delivered May 5, 1997


1.   Statutes -- construction of penal statutes -- strict
     construction should not defeat obvious intent of legislature.
     -- While the law is well settled that penal statutes must be
     strictly construed, resolving any doubts in favor of the
     accused, it is equally well established that such statutes
     must not be so strictly construed as to defeat an obvious
     intent of the legislature.   

2.   Statutes -- appellant's interpretation of statute would limit
     its applicability -- plain language of statute precluded such
     construction. -- Appellant's claim that Ark. Code Ann.  5-54-
     105(a)(4) (Repl. 1993) required the State to show that he had
     acted to suppress evidence that would have aided in the
     apprehension or identification of the person who committed the
     crimes would have placed an interpretation on  5-54-105(a)(4)
     that would limit its applicability only to a person's acts of
     hindering that transpire before a criminal suspect has been
     identified and arrested, but not afterwards; provision
     (a)(4)'s plain language precluded such a construction; while
     appellant suggested that the identification referred to in
     (a)(4) did not include the actual prosecution or in-court
     identification of the accused, such a suggestion ran counter
     to the clear wording employed in that provision; the General
     Assembly, in enacting  5-54-105(a)(4), utilized no qualifying
     or limiting words when employing the language "identification
     of the person."

3.   Evidence -- substantial evidence presented by appellee from
     which jury could infer violation of law -- violation of Ark.
     Code Ann.  5-54-105 clearly shown. -- The evidence was more
     than sufficient from which a jury could infer appellant
     destroyed the fingerprints on the weapon, hid the gun from the
     authorities, and did not tell the authorities of the gun's
     whereabouts until confronted by the investigating officers;
     Ark. Code Ann.  5-54-105(a)(4) was applicable, and
     substantial evidence was introduced showing that appellant
     violated it by attempting to conceal or otherwise suppress the
     discovery of the murder weapon.

4.   Statutes -- mere existence of overlapping does not render
     statutes constitutionally infirm absent impermissible
     uncertainty in definitions of offenses. -- As long as there is
     no impermissible uncertainty in the definitions of the
     offenses, the mere existence of any overlapping does not
     render a statute constitutionally infirm.
 
5.   Statutes -- defendant chargeable under either of two statutes
     -- prosecutor's being influenced by penalties available upon
     conviction not constitutionally suspect. -- Where a defendant
     is chargeable under either of two statutes with identical
     elements, the fact that the prosecutor may be influenced by
     the penalties available upon conviction, standing alone, is
     not constitutionally suspect.

6.   Evidence -- cross examination concerning letter allowed by
     trial court -- no abuse of discretion found. -- Where the
     trial court ruled that, while the State could not introduce
     the witness's letter into evidence, the defense had opened the
     door for the State to utilize it in the cross examination of
     that witness to explain how she had provided added information
     concerning the crimes, which had prompted the officers to
     continue their investigation regarding those crimes, no abuse
     of discretion was found in the trial court's allowing the
     State's inquiry.


     Appeal from Mississippi Circuit Court; John Fogleman, Judge;
affirmed.
     McDaniel & Wells, P.A., by:  Bill Stanley, for appellant.
     Winston Bryant, Att'y Gen., by:  Sandy Moll, Asst. Att'y Gen.,
for appellee.

     Tom Glaze, Justice.
     Appellant Thomas Puckett was charged under Ark. Code Ann.  5-
54-105 (Repl. 1993), with the Class B felony of hindering the
apprehension or prosecution of Calvin Adams about four months after
Adams's arrest for the capital murder of Richie Austin and
attempted murder of his wife, Cassandra Austin.  Following a jury
trial, Puckett was found guilty and sentenced to seven years in
prison and fined $10,000.00.  Puckett appeals, arguing that the
trial court erred in its interpretation and application of  5-54-
105, and its failure to grant Puckett's motion for directed
verdict.  He also seeks reversal of the court's ruling that allowed
the State the use of a letter in cross examining defense witness,
Zenia Adams, Calvin's wife and Puckett's cousin.  We affirm.
     Puckett first submits that, if the trial court had strictly
construed  5-54-105, as required, it would necessarily have found
the State's evidence insufficient to show he had the purpose and
intent to hinder the apprehension or prosecution of Adams.  At
most, Puckett argues his actions were chargeable under Ark. Code
Ann.  5-53-111 (Repl. 1993), the offense of tampering with
physical evidence, which is a Class D felony.  These statutes in
relevant part are set out in juxtaposition as follows:
     5-54-105.  Hindering apprehension or prosecution.
           (a)  A person commits an offense under this section
     if, with purpose to hinder the apprehension, prosecution,
     conviction, or punishment of another for an offense, he:
          (1)  Harbors or conceals the person; or
          (2)  Provides or aids in providing the person with
     a weapon, money, transportation, disguise, or other means
     of avoiding apprehension, discovery, or effecting escape;
     or   
          (3)  Prevents or obstructs anyone from performing an
     act which might aid in the discovery, apprehension, or
     identification of the person by means of force,
     intimidation, or the threat of such, or by means of
     deception; or 
          (4)  Conceals, alters, destroys, or otherwise
     suppresses the discovery of any fact, information, or
     other thing related to the crime which might aid in the
     discovery, apprehension, or identification of the person;
     or
          (5)  Warns the person of impending discovery,
     apprehension, or identification; or 
          (6)  Volunteers false information to a law
     enforcement officer.  (Emphasis added.)
     5-53-111.  Tampering with physical evidence.
          (a)  A person commits the offense of tampering with
     physical evidence if he alters, destroys, suppresses,
     removes, or conceals any record, document, or thing with
     the purpose of impairing its verity, legibility, or
     availability in any official proceeding or investigation.
     Puckett's argument is simple and primarily focuses on  5-54-
105(a) (4) -- the only provision of the statute which arguably
could be applicable.  In short, he claims that provision (a)(4)
required the State to show that he had acted to suppress evidence
which would have aided in the apprehension or identification of the
person (Calvin Adams) who committed the Austin crimes.  While he
concedes he found and hid the suspected murder weapon used by
Calvin Adams to commit the crimes, he submits his actions took
place after Calvin had already been apprehended, identified, and
had confessed to the crimes.  Consequently, he contends the
language in provision (a)(4) precludes its applicability to the
facts in this case.  We disagree.
     While the law is well settled that penal statutes must be
strictly construed resolving any doubts in favor of the accused,
Nelson v. State, 318 Ark. 146, 883 S.W.2d 839 (1994), it is equally
established that such statutes must not be so strictly construed as
to defeat an obvious intent of the legislature.  Id.  Here, Puckett
suggests we place an interpretation on  5-54-105(a)(4) that would
limit its applicability only to a person's acts of hindering that
transpire before a criminal suspect has been identified and
arrested, but not afterwards.  Provision (a)(4)'s plain language
precludes such a construction.  In reading provision (a), a person
commits the offense of hindering the apprehension or prosecution
when he does so with the purpose to hinder the apprehension,
prosecution, conviction, or punishment of another for an offense. 
(Our emphasis.)  Thus, in reading the full text of provision
(a)(4), Puckett can be said to have committed the crime of
hindering if the State showed that, with purpose, he hindered the
prosecution, conviction, or punishment of Calvin Adams by
suppressing evidence that might have aided the State in identifying
Calvin Adams as having committed the Austin crimes.  And while
Puckett suggests the identification referred to in (a)(4) does not
include the actual prosecution or in-court identification of Calvin
Adams, such a suggestion runs counter to the clear wording employed
in that provision.  In addition, the General Assembly in enacting
 5-54-105(a)(4) utilized no qualifying or limiting words when
employing the language "identification of the person."
     In turning to the evidence, we conclude the evidence was more
than sufficient from which a jury could infer Puckett destroyed the
fingerprints on the weapon, hid the gun from the authorities, and
did not tell the authorities of the gun's whereabouts until
confronted by the investigating officers.  Although Puckett claims
he voluntarily led authorities to the weapon Calvin used in the
crimes, substantial evidence was presented by the State that
permitted the jury to infer and believe otherwise.  
     On the night of April 15, 1994, Richie and Cassandra Austin
were kidnapped from their home and taken to a rural area where
Richie was fatally wounded and Cassandra was shot several times,
twice in the head and once in the shoulder.  Cassandra survived,
walked to where she found help, and subsequently gave investigating
officers a sufficient description which allowed them to arrest
Calvin Adams at about 6:00 a.m. on April 16, 1994.  That morning,
Puckett learned of the crimes and of his friend's, Calvin Adams,
arrest.  The proof shows Puckett went to Calvin and Zenia Adamses'
house several times and discussed the matter with Zenia.  During
this period of time, Puckett learned the police had been to the
Adams home twice searching for the murder weapon.  Puckett said
that the officers' search prompted him, Zenia, and Dianah Rowan
(another cousin of Puckett's) to initiate their own separate search
of the house with the avowed purpose to show Calvin's innocence. 
Puckett found the gun at about 11:00 a.m., the same morning, but
did not tell anyone.  Instead, he hid it in his pants and left the
house.  Puckett testified he went to the police station, but by his
own admission, never told any officer he had found the gun. 
Rather, Puckett went to his house, wrapped the gun in a blanket,
and placed it in a closet.  He never revealed to anyone that he had
located the weapon until after Zenia and Dianah told officers that
Puckett must have found the gun, and the officers confronted
Puckett concerning the gun's whereabouts.  When asked where the gun
was, Puckett's initial response was, "What's Calvin say?"  After
the officers told Puckett that Adams had confessed to the crimes
and to where the weapon was located, Puckett admitted that he had
the murder weapon, and took officers to his residence to retrieve
it.  Puckett conceded he had obliterated any fingerprints on the
weapon.  From the foregoing proof, and under our interpretation of
 5-54-105(a)(4), we have no difficulty in concluding  5-54-105
applies to Puckett's case and that substantial evidence was
introduced, showing Puckett had violated it by attempting to
conceal or otherwise suppress the discovery of the murder weapon.
     Puckett also argues that the hindering and tampering statutes,
 5-54-105 and  5-53-111, originate from the same Act 280 of 1975,
and that fact, alone, reflects the General Assembly did not intend
for the removal and alteration of physical evidence to be covered
by both statutory provisions.  He cites no legal authority to
support his argument, and our law runs counter to such a notion. 
While both  5-54-105(a)(4) and  5-53-111 deal with the wrongful
manipulation of physical evidence by a third party, this court has
held that as long as there is no impermissible uncertainty in the
definitions of the offenses, the mere existence of any overlapping
does not render a statute constitutionally infirm.  Dansby v.
State, 319 Ark. 506, 839 S.W.2d 331 (1995).  This court also held
that, where a defendant is chargeable under either of two statutes
with identical elements, the fact that the prosecutor may be
influenced by the penalties available upon conviction, standing
alone, is not constitutionally suspect.  Simpson v. State, 310 Ark.
493, 837 S.W.2d 475 (1992).
     Puckett's final argument challenges the trial court's ruling
allowing the State to cross examine Zenia Adams regarding a letter
she had sent Puckett on October 1, 1994, or about five months after
the Austins were shot and after Puckett was arrested and
incarcerated on the hindering charge.  At trial, defense counsel
had cross examined officers concerning why they delayed four months
before arresting Puckett on the hindering charge when the police
had nothing more in the way of evidence than they had at the time
Adams committed his crimes.  To explain the delay, the State sought
to show Zenia had reignited the officers' investigation because in
September 1994, she told police a second unnamed person was
involved in the shooting of the Austins, and she had sent a letter
dated October 1, 1994, to Puckett wherein she wrote, "I love you. 
I know who you are protecting."  The trial court overruled
Puckett's objection to the State's proposed inquiry into the
contents of Zenia's letter, stating the following:
          The Court does want the record to be clear that if
     the defense had not made an issue out of the fact that
     the police or prosecutors waited four or five months to
     file the charges [sic, charge], the Court would not have
     allowed this evidence in, but almost every police witness
     the defense has asked questions related to the delay. 
     . . . [T]he Court thinks it is only fair that the jury
     knows the basis for the actions the police took. 
     In sum, the trial court ruled that while the State could not
introduce Zenia's letter into evidence, the defense had opened the
door for the State to utilize it in the cross examination of Zenia
to explain how Zenia had provided added information concerning the
Austin crimes, which had prompted the officers to continue their
investigation regarding those crimes.  We are unable to say the
trial court abused its discretion in allowing the State's inquiry
in these circumstances.  See Hicks v. State, 327 Ark. 652, ___
S.W.2d ___ (1997).
     For the reasons above, we affirm.