Larry Wayne Barnes v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

DECEMBER 14, 2000

LARRY WAYNE BARNES

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CR 99-145

AN APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY,

NO. CR-98-758

HONORABLE JOHN LANGSTON,

CIRCUIT JUDGE

AFFIRMED

Appellant, Larry Wayne Barnes, was convicted by a jury of capital murder and sentenced to life imprisonment without the possibility of parole. Pursuant to Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967), appellant's attorney has filed a brief and a motion to be relieved as counsel stating there is no merit to the appeal. Appellant has not filed a pro se brief as permitted by our Rule 4-3(j). We find no merit in appellant's appeal and, accordingly, grant the motion to withdraw and affirm appellant's conviction and sentence.

These are the events which led to appellant's conviction. On January 28, 1998, appellant went to the home of his estranged wife, Debra O'Neal. He parked away from the house so that when Ms. O'Neal and her son arrived home they were unaware that appellant was present. When Ms. O'Neal and her son approached the house, appellant came out of the darkness and confronted her. Ms. O'Neal proceeded into the house with her son and attempted to call the police. Appellant,however, had cut the phone lines. The victim's son was sent to a neighbor's home to call the police while Ms. O'Neal dealt with appellant. As the boy was approaching the neighbor's home he heard four or five gunshots behind him; he turned around and saw his mother lying on the ground and appellant running towards the woods. Appellant was charged with capital murder. He did not deny shooting Ms. O'Neal; however, he claimed the shooting was an accident.

ADVERSE RULINGS

The first adverse ruling that we must discuss is the denial of appellant's motion for a directed

verdict. This court considers arguments on the sufficiency of the evidence prior to the review of trial errors. Jameson v. State, 333 Ark. 128, 970 S.W.2d 785 (1998). At the close of the State's case, appellant moved for a directed verdict arguing that the State had failed to prove the requisite mental state for capital murder. Specifically, appellant contended that there was no showing that the homicide was committed with a premeditated and deliberated purpose.

On appeal, we treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. When we review a challenge to the sufficiency of the evidence, we will affirm the conviction if there is substantial evidence to support it, when viewed in the light most favorable to the State. Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without mere speculation or conjecture. The evidence may be either direct or circumstantial. Only evidence supporting the verdict will be considered. Circumstantial evidence can provide the basis to support a conviction, but it must be consistent with the defendant's guilt and inconsistent with any other reasonable conclusion. Id. Whether the evidence excludes every hypothesis is left to the jury to decide. Williams v. State, 338 Ark. 97, 991 S.W.2d 565 (1999). Guilt may be proved in the absence of eyewitness testimony, and evidence of guilt is not less because it is circumstantial. McDole v. State, 339 Ark. 391, 6 S.W.3d 74 (1999). The trier of fact is free to believe all or part of a witness's testimony. Moreover, the credibility of witnesses is an issue for the jury and not for this court. Bangs, supra. The jury may resolve questions of conflicting testimony and inconsistent evidence and may choose to believe the State's account of the facts rather than the defendant's. Stewart v. State, 338 Ark. 608, 999 S.W.2d 684 (1999).

Here, the jury was presented with evidence that appellant, armed with a gun, parked his car away from the victim's house at night. Appellant remained out of view until Ms. O'Neal arrived home and then he approached her. The record reveals that the victim and her son entered the house to try and phone the police. Appellant admitted that he cut the phone lines to prevent Ms. O'Neal from calling the police. When the victim was unable to phone the police, she sent her son for help. Appellant shot Ms. O'Neal four times in her back while the victim's child was running to the neighbor's house. Appellant did not deny shooting the victim but claimed it was an accident. The jury was free to disbelieve appellant's explanation, and it is the jury's duty to weigh the evidence. Thus, based on the record before us there is substantial evidence to support the jury's verdict that appellant killed Ms. O'Neal with a premeditated and deliberate purpose.

Prior to trial, appellant filed a motion to dismiss the capital murder charge because of its asserted overlap with the first-degree murder statute, Ark. Code Ann. § 5-10-102 (Repl. 1997). Appellant argued at trial that the same conduct was proscribed in both statutes, thus rendering the capital murder statute unconstitutionally void for vagueness because it failed to give adequate notice of the proscribed conduct, thus violating due process and depriving him of equal protection under the law. In his motion to the trial court, appellant requested that the capital murder charge bedismissed, or, in the alternative, that the trial court omit the jury instruction on first-degree murder as a lesser-included offense to capital murder, offering only second-degree murder instruction in its place. The trial court denied appellant's motion.

The capital murder statute, Ark. Code Ann. § 5-10-101 (a) (4) (Repl. 1997), provides that a person commits capital murder if: "With the premeditated and deliberated purpose of causing the death of another person, he causes the death of another person . . ." Id. Murder in the first degree occurs when, "with a purpose of causing the death of another person, he causes the death of another person." Ark. Code Ann. § 5-10-102 (a) (2) (Repl. 1997). On numerous occasions, we have held that there is no constitutional infirmity in the overlapping of the "premeditated and deliberated" mens rea in the capital murder statute and the "purposeful" mens rea in the first-degree murder statute. Camargo v. State, 327 Ark. 631, 940 S.W.2d 464 (1997) (citing Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995); Greene v. State, 317 Ark. 350, 878 S.W.2d 384 (1994); Sanders v. State, 317 Ark. 328, 878 S.W.2d 391 (1994); Buchanan v. State, 315 Ark. 227, 866 S.W.2d 395 (1993); Mauppin v. State, 309 Ark. 235, 831 S.W.2d 104 (1992); Van Pelt v. State, 306 Ark. 624, 816 S.W.2d 607 (1991); Smith v. State, 306 Ark. 483, 815 S.W.2d 922 (1991); White v. State, 298 Ark. 55, 764 S.W.2d 613 (1989) ). We have explained that it is impossible to avoid the use of general language in the definition of offenses, and that one or the other offense may be established depending on the testimony of witnesses. Id. We have consistently found no constitutional or other impediment to the discretion conferred by the "overlap" upon the State to choose between the two laws in charging a particular homicide. Coulter v. State, 304 Ark. 527, 804 S.W.2d 348, cert. denied 502 U.S. 829, 116 L. Ed. 2d 72, 112 S. Ct. 102 (1991). We have decided this issue adversely to appellant's position on many occasions, and adhere to these previous holdings. See Echols v. State,supra ; Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995), cert. denied, 134 L. Ed. 2d 558, 116 S. Ct. 1436 (1995).

Appellant also filed a pre-trial motion for individual voir dire of the prospective jurors. Appellant requested that he be allowed to individually question jurors about domestic abuse because that controversial and emotional topic may be raised during the trial. He believed that jurors would be more reluctant to discuss the issue in public. The trial court denied appellant's motion.

This court has held that the extent and scope of voir dire is left to the sound discretion of the trial judge, and the trial judge's ruling will not be disturbed on appeal, absent an abuse of discretion. Britt v. State, 334 Ark. 142, 974 S.W.2d 436 (1998); Ferrell v. State, 325 Ark. 455, 929 S.W.2d 697 (1996). The proper role of a trial judge in voir dire is to direct the process, and he is given great discretion to ensure that no undue advantage is gained. Britt, 334 Ark. 142, 974 S.W.2d 436; Anderson v. State, 278 Ark. 171, 644 S.W.2d 278 (1983). The record does not contain the voir dire of the jury. The record only contains appellant's motion and responses by the State and appellant prior to trial. Based on that limited information, we cannot say that the trial court abused its discretion in denying appellant's motion. Additionally, it appears that appellant accepted the jury that was chosen after voir dire without any objections. Thus, appellant waived this issue on appeal. See Edens v. State, 235 Ark. 996, 363 S.W.2d 923 (1963).

During the direct testimony of appellant, counsel for appellant approached the bench to ask the court to remove members of the audience that were making comments. The prosecutor responded that the victim assistance person would ensure that no further comments were made by members of the audience. The court stated: "All right. There was a reaction made. They need to know if it happens again I may follow the Defenses's motion to have them removed." The recordindicates that there were no further interruptions by the audience. 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. Solomon v. State, 323 Ark. 178, 913 S.W.2d 288 (1996). The record does not indicate the comments made by the audience or whether the comments were heard by the jury. Therefore, we cannot say that the trial court abused its discretion not removing members of the audience.

4-3(h) Review

In compliance with Ark.Sup.Ct.R. 4-3(h), the record has been examined for all objections, motions, and requests made by either party that were decided adversely to appellant, and no error has been found. From the review of the record and the briefs before us, we find the appeal to be without merit. Counsel's motion to be relieved is granted and the judgment is affirmed.

Affirmed.

Thornton, J. not participating.