Ross Lamar Burnett v. State of Arkansas

cr02-336

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

JUNE 26, 2003

ROSS LAMAR BURNETT, SR.

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 02-336

APPEAL FROM THE CIRCUIT COURT OF DREW COUNTY, NO. CR 2001-55-2, HONORABLE SAMUEL B. POPE, JUDGE

AFFIRMED

Appellant was convicted of the capital murder of Pam Knight and sentenced to life imprisonment without parole. Appellant's counsel has filed a motion to be relieved and a brief pursuant to Anders v. California, 386 U.S. 738 (1967) and Ark. Sup. Ct. R. 4-3(j)(1), asserting that the appeal is wholly without merit. The State concurs. Appellant has filed pro se points for reversal pursuant to Ark. Sup. Ct. R. 4-3(j)(2). We conclude that there are no meritorious issues raised from the rulings that were adverse to appellant. Accordingly, we affirm appellant's conviction and sentence.

Sufficiency of the Evidence

The first adverse ruling is the denial of trial counsel's motion for directed verdict. Counsel made a motion for directed verdict at the close of the State's case and also at the close of all evidence, asserting that the State had failed to show that with "premeditated and deliberate purpose" that appellant killed Knight. He then moved that the case be submitted to the jury with a charge offirst-degree murder rather than capital murder. Appellant's motions were denied.

We treat a motion for directed verdict as a challenge to the sufficiency of the evidence and consider arguments on the sufficiency of the evidence prior to the review of any other claims of trial error. See Dodson v. State, 341 Ark. 41, 46, 14 S.W.3d 489, 492 (2000). "The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial." Smith v. State, 346 Ark. 48, 52, 55 S.W.3d 251, 254 (2001). Substantial evidence is that which is forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. When a defendant challenges the sufficiency of the evidence, the evidence is viewed in the light most favorable to the State, and only evidence supporting the verdict will be considered. Id.

A person commits capital murder if, with the premeditated and deliberated purpose of causing the death of another person, he causes the death of any person. Ark. Code Ann. § 5-10-101(a)(4) (Repl. 1997). "Premeditated and deliberated murder occurs when it is the killer's conscious object to cause death and he forms that intention before he acts and as a result of a weighing of the consequences of his course of conduct." Carmichael v. State, 340 Ark. 598, 602, 12 S.W.3d 225, 228 (2000). Moreover, "premeditation and deliberation may be inferred from the type and character of the weapon used, the manner in which the weapon was used, the nature, extent, and location of the wounds inflicted, and the conduct of the accused." Chase v. State, 334 Ark. 274, 277, 973 S.W.2d 791, 792 (1998).

At trial, evidence was presented that on April 2, 2001, appellant went to the residence of John Henry "Buck" Ferrell where he made the statements, "Pam, I'd (sic) kill that sorry bitch. That sorry bitch, I'll kill that bitch," referring to the victim. Appellant then pulled out a knife. Several witnesses testified that they heard appellant state that he was going to kill Knight. At some point,appellant and Knight met in the street outside the Ferrell residence and an altercation ensued. According to the testimony of Ann Byrd, appellant was swinging at Knight, who was using a board to block him. Finally, Knight screamed that she had been hit, and appellant fled the scene. Knight was stabbed in the left side of her chest. Dr. Charles Kokes of the Arkansas Crime Lab testified that a single knife wound went through the pericardial sac and left ventricle of Knight's heart and that the nature of the wound would cause very quick unconsciousness and death. Given the substantial evidence presented at trial of premeditation and deliberation, we affirm the trial court's denial of appellant's motions for directed verdict. Witness List

The second adverse ruling occurred when the trial court overruled appellant's objection regarding the State's witnesses. Prior to the State calling its first witness, appellant objected to any State's witness being called, claiming that appellant had not been provided a witness list. The State responded that all witnesses' names had been disclosed in open file discovery. The trial court ruled that it was fair for appellant to deduce who might be called as a witness if the State provided appellant with the names during open discovery. The court also gave appellant the opportunity to make any further objection if a witness was called whose statement and name were not provided during open discovery. Moreover, the court found appellant's objection to be "frivolous."

According to Ark. R. Crim. P. 17.1:

(a) Subject to the provisions of Rules 17.5 and 19.4, the prosecuting attorney shall disclose to defense counsel, upon timely request, the following material and information which is or may come within the possession, control, or knowledge of the prosecuting attorney:

(i) the names and addresses of persons whom the prosecuting attorney intends to call as witnesses at any hearing or at trial; ...

In Holloway v. State, 310 Ark. 473, 475, 837 S.W.2d 464, 465 (1992), we held that Rule 17.1requires the prosecutor to provide the names and addresses of the State's witnesses, but not the substance of their testimony. Moreover, a criminal defendant cannot rely upon discovery as a total substitute for his own investigation. Rychtarik v. State, 334 Ark. 492, 501, 976 S.W.2d 374, 379 (1998).

Because the State provided appellant with a list of all intended witnesses during open discovery, there was no basis for appellant's objection. In addition, the trial court gave appellant the option to make additional objections if necessary. Because appellant can show no prejudicial error, we find no grounds for reversal on this issue.

Police Diagram

The third adverse ruling occurred when the trial court overruled appellant's objection to State's Exhibit Three, a diagram of the crime scene. Appellant objected to the use of the word "homicide" in the diagram. It appears from the record that the court ruled that the word "homicide" was not prejudicial under the circumstances; however, the court did rule that the word "stalking" should not be included in the exhibit, as that charge was dismissed. Therefore, the exhibit was admitted subject to the word "stalking" being omitted.

State's Exhibit Three was used during the testimony of Special Agent Scott Woodward of the Arkansas State Police. Woodward testified that he was called to the scene of a stabbing at 572 East Railroad and was asked to assist Lieutenant John Dement of the Monticello Police Department in the investigation and to work the crime scene. According to Woodward, upon arriving at the scene, he saw a maroon and silver Ford pickup sitting in the front yard. He testified to the existence of blood on the truck, a blood spatter on the step leading to the porch, and a pool of blood in the areas where the victim's body was found.

Woodward testified that Exhibit Three was a diagram that he constructed on an eight-and-one-half- by-eleven-inch sheet of paper, which was reproduced for trial. He testified that he put the word "homicide" on the diagram because he was working the case as a homicide or murder investigation but that the term did not preclude a finding of justification.

A trial court is accorded wide discretion in evidentiary rulings, and we will not reverse absent an abuse of discretion. General v. State, 79 Ark. App. 219, 220, 86 S.W.3d 15, 16 (2002). According to Ark. R. Evid. 403:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

We find no abuse of discretion as the diagram with the word "homicide" was a representation of the crime scene as depicted by Special Agent Woodward and was important to the jury's understanding of his testimony.

Motion for Mistrial

The fourth adverse ruling is the denial of appellant's motion for a mistrial. "A mistrial is a drastic remedy and should be declared only when there has been an error so prejudicial that justice cannot be served by continuing the trial, or when the fundamental fairness of the trial itself has been manifestly affected." Jenkins v. State, 348 Ark. 686, 704, 75 S.W.3d 180, 191 (2002). A trial court has wide discretion in granting or denying a motion for mistrial, and the court's decision will not be disturbed absent an abuse of that discretion. Id.

Charles Everett testified at trial that he was present at the home of Buck Ferrell when the crime occurred. According to Everett, he did not see Knight with a board, he just heard "licks"and suspected that Knight got a board because she saw appellant with a knife. The following exchange then took place:

THE COURT: Is what you mean you assume she had a board `cause you heard some noises that sounded like it? Is that what you're saying?

THE WITNESS: I assume she had something in the road.

THE COURT: Okay. I think that's what we're getting to, counsel.

MR. COLVIN: Need to approach.

(Whereupon, the following Bench conference was had out of the hearing of the jury:)

MR. COLVIN: I'm going to ask for a mistrial because-

THE COURT: Denied.

MR. COLVIN: You just made a comment on the evidence.

THE COURT: Denied. I didn't make a comment. I asked him a question.

MR. COLVIN: No sir. You did.

THE COURT: I didn't. Denied.

MR. COLVIN: I want to have the jury instructed that the comments of the Court were not made to be evidence--

THE COURT: I'll instruct them that when I give them their closing instructions.

In Holt v. State, 15 Ark. App. 269, 692 S.W.2d 265 (1985), appellant argued that the trial court erred in refusing to grant a mistrial. According to appellant, the fact that the trial judge inquired of a witness on direct examination as to his opinion regarding the danger presented by allowing appellant to continue driving while intoxicated constituted a comment on the evidence, entitling him to a mistrial. The Arkansas Court of Appeals disagreed, holding that while it is true that the judge did ask a question of the witness, that action did not constitute a comment on the weight to be given the answer. Id. at 271, 692 S.W.2d at 267. According to the court, "A mistrial is an extreme remedy, and should be utilized only as a last resort." Id. The same is true in the instant case. Although the trial judge did question Everett, it was not a comment on the weight tobe given his testimony; therefore, we find no abuse of discretion in the trial court's refusal to grant appellant's motion for a mistrial.

Relevancy of Victim's Test Results for the Presence of HIV Virus and Hepatis C

The fifth adverse ruling occurred when the trial court sustained the State's objection to the relevancy of questions concerning whether the victim tested positive for HIV or Hepatitis C. During the testimony of Dr. Charles Kokes, a forensic pathologist with the Arkansas State Crime Lab, trial counsel asked Dr. Kokes if the victim had been tested for AIDS. Dr. Kokes responded that she was tested for the presence of the HIV virus and that the test was negative. The State objected to the relevancy of the question. Trial counsel than asked if the victim tested positive for Hepatitis C. The State again questioned the relevancy of the issue.

The court asked trial counsel if there was any "logical relevance" to this line of questioning, and counsel stated that the information was in a report and that it would be tied in later. The court then asked counsel to approach the bench and explain his reasoning. Counsel stated that appellant was going to testify that the victim was a prostitute and, according to counsel, HIV and Hepatitis were "indications that a person has been exposed to blood and things." The State responded by stating that it did not know what the victim's sexual activities had to do with the case and that counsel's motive was to make her look like a "tramp." The court sustained the State's objection.

Arkansas Rule of Evidence 401 states, "`Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Arkansas Rule of Evidence 402 states that "[a]ll relevant evidence is admissible, except as otherwise provided by statute or by these rules or by other rules applicable in the courts of this State. Evidence which is not relevant is not admissible." We have held that a ruling on the relevancy of evidence is discretionary and willnot be reversed absent an abuse of discretion. Cobb v. State, 340 Ark. 240, 246-47, 12 S.W.3d 195, 199 (2000). Because the victim's test results are not relevant to the case at hand, we find that the trial court did not abuse its discretion.

State's Objection to Witness's Use of the Word "They"

The sixth adverse ruling occurred when the court sustained an objection by the State during the testimony of Buck Ferrell. Ferrell testified that he knew nothing about Knight hitting an individual named A.C. Cavaness in the head with a board. According to Ferrell, "They just was saying he hit him with it, but later on A.C. told me she didn't, so I don't know." The following exchange then took place:

MR. COLVIN: Where they say that Pam hit A. C. Cavaness? Is that what you were talking about?

MR. DEEN: Objection. There was no "they" who said that.

THE WITNESS: Uh-huh.

MR. DEEN: Ross Burnett's the only one who said that.

THE COURT: Sustained.

MR. COLVIN: Your Honor, I just heard a few minutes ago this witness say "they said," and I don't know who "they" is.

THE COURT: Well, I sustained the objection. You can ask him about the statement, Mr. Colvin, and what he has knowledge of.

THE WITNESS: That's all I know.

Although the court sustained the State's objection, appellant was given the opportunity to question the witness regarding his statement and his knowledge of the events. "The law is well settled that prejudice is not presumed, and we will not reverse absent a showing of prejudice." Donovan v. State, 71 Ark. App. 226, 241, 32 S.W.3d 1, 10-11 (2000). Because appellant wasallowed to question the witness further, he has not shown that he suffered prejudice as a result of the court's ruling. Accordingly, we find no reversible error on this issue.

Argumentative Questioning

The seventh adverse ruling also occurred during Ferrell's testimony. Ferrell testified regarding the events on the night of the stabbing. Ferrell responded to counsel's questioning by stating, "I'm just telling you what happened that night." Ferrell went on to testify that he did not know anything about the past relationship between appellant and Knight and that he was just trying to explain what happened that night. Trial counsel again asked, "And you don't know what happened that night?" The State objected to the question as argumentative, and the court sustained the objection.

Arkansas Rule of Evidence 611(a)(3) provides that the court exercise reasonable control over the mode of interrogating witnesses so as to protect them from harassment. Ferrell testified to what he knew of the events surrounding the stabbing; therefore, we find no abuse of discretion by the trial court.

Witness's Cocaine Use

The eighth adverse ruling involves an objection by the State regarding a witness's cocaine use. During the testimony of Addie Mae Thomas, trial counsel asked if Knight used cocaine, and Thomas responded in the affirmative. According to Thomas, she used cocaine with Knight. Trial counsel then asked Thomas if she still used cocaine, and she responded, "No, I do not." Thomas testified that she did not know if Knight was using cocaine on the night of the stabbing. Trial counsel asked Thomas when she last used cocaine with Knight, and Thomas responded, "March." Counsel then asked Thomas if she was still using cocaine. The State objected to the redundancy of the question, as it had been asked and answered. The court agreed and sustained the objection.

As stated, Arkansas Rule of Evidence 611(a)(3) provides that the court exercise reasonable control over the mode of interrogating witnesses. We find that the trial court did not abuse its discretion by sustaining the State's objection and having counsel move along in the interest of time.

Appellant's Points for Reversal

Appellant spends the majority of his pro se brief making unsubstantiated allegations regarding Knight's reputation for stealing and drug use, appellant's poor health, and the events leading up to the fatal stabbing. However, it is unclear what specific trial errors he believes warrant reversal. We will not consider an argument where appellant presents no citation to legal authority, makes no convincing argument in support of his allegations, and it is not apparent without further research that the argument is well-taken. McFarland v. State, 337 Ark. 386, 398, 989 S.W.2d 899, 905-06 (1999). Appellant's allegations regarding Knight's reputation and his health are conclusory with no factual substantiation, and it is unclear which specific rulings or procedures form the basis of his claims. Accordingly, we find no meritorious grounds for reversal.

Victim's Prior Bad Acts

Appellant also appears to assert that the trial court erred in excluding evidence of Knight's prior violent acts toward him. However, the absence of such evidence from the trial record is not attributable to any adverse ruling by the trial court but rather to appellant's decision not to testify. In fact, the court denied the State's motion in limine to exclude evidence of Knight's acts of violence toward appellant, stating that the "past history between these two people is free to come in, I think, whether charged or uncharged." When the trial court grants a defendant the relief requested, he cannot allege error on appeal. McGehee v. State, 338 Ark. 152, 177, 992 S.W.2d 110, 125 (1999). Accordingly, we find no grounds for reversal.

Authentication

Appellant also alleges that the trial court erred by admitting into evidence State's Exhibit Eighteen, the board that Knight used to fight off appellant's attack. According to appellant, Exhibit Eighteen was not the same board used by Knight. However, we will not consider this argument as it was not preserved for appeal.

We have stated that "the purpose of the contemporaneous-objection rule is to give the trial court a fair opportunity to consider an allegation of error and to correct it, if the allegation is meritorious." Gamble v. State, 351 Ark. 541, 548, 95 S.W.3d 755, 760 (2003). To preserve an issue for appeal, a proper objection must be made at the first opportunity after the matter to which objection has been made occurs. Id. at 549, 95 S.W.3d at 760. Appellant did not lodge an objection to the admission of the exhibit; therefore, we affirm the court's ruling below.

Conflict of Interest

Finally, appellant claims that he did not receive a fair trial because the prosecutor was previously acquainted with Knight's daughter, causing a conflict of interest. However, we decline to consider this argument as it is raised for the first time on appeal. See Windsor v. State, 338 Ark. 649, 655, 1 S.W.3d 20, 24 (1999). Accordingly, appellant's claim is procedurally barred.

Affirmed.

Corbin, J., not participating.