John Christopher Peeler v. State of Arkansas

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John Christopher PEELER v. STATE of Arkansas

CR 96-605                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered October 28, 1996


1.   Motions -- directed-verdict motion discussed -- substantial
     evidence defined. -- A motion for directed verdict is a
     challenge to the sufficiency of the evidence; the test is
     whether the verdict is supported by substantial evidence,
     direct or circumstantial; substantial evidence is evidence of
     sufficient certainty and precision to compel a conclusion one
     way or another; the appellate court reviews the evidence in
     the light most favorable to the appellee.

2.   Evidence -- corroborative evidence -- requirements. -- Under
     Ark. Code Ann.  16-89-111(e) (1987), a felony conviction
     cannot be had upon the testimony of an accomplice unless
     corroborated by other evidence tending to connect the
     defendant with the commission of the offense; the
     corroboration is not sufficient if it merely shows that the
     offense was committed and the circumstances thereof; the
     corroboration must be sufficient standing alone to establish
     the commission of the offense and to connect the defendant
     with it.

3.   Evidence -- corroborative evidence -- test for sufficiency of.
     -- The test for corroborating evidence is whether, if the
     testimony of the accomplice were totally eliminated from the
     case, the other evidence independently establishes the crime
     and tends to connect the accused with its commission;
     circumstantial evidence qualifies as corroborating evidence
     but it, too, must be substantial; corroborating evidence need
     not, however, be so substantial in and of itself to sustain a
     conviction.

4.   Evidence -- corroborative evidence independently established
     crime and connected accused with it. -- The primary evidence
     presented to corroborate the testimony of appellant's alleged
     accomplice in kidnapping the victim was the testimony of
     appellant's mother and uncle; both testified that appellant
     admitted having murdered the victim; that evidence
     independently established the crime and tended to connect the
     accused with its commission.

5.   Motions -- motion for mistrial discussed -- when granted. --
     A mistrial is a drastic remedy that should only be used 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; a
     trial court has wide discretion in granting or denying a
     motion for a mistrial, and, absent an abuse, the decision will
     not be disturbed; a mistrial will be granted only where any
     possible prejudice cannot be removed by an admonition to the
     jury.

6.   Motions -- motion for mistrial denied -- problem could have
     been cured by jury admonition that was refused -- no error
     occurred. -- Where appellant's uncle, when asked by the
     prosecutor why he was testifying against his nephew, replied
     that "I believe he's guilty," and appellant moved for a
     mistrial but declined the trial court's offer, upon overruling
     the motion, to admonish the jury to disregard the testimony,
     the supreme court declared that it could not gainsay the
     prosecutor's remark, after the mistrial motion was made, to
     the effect that she had not sought the witness's opinion with
     respect to the guilt or innocence of the accused and that it
     regarded the problem as one that could have been cured by an
     admonition to the jury, which was refused by appellant's
     counsel on the ground that it would only call more attention
     to the statement; in those circumstances, the supreme court
     held that no error occurred.


     Appeal from Pulaski Circuit Court; John Langston, Judge;
affirmed.
     William C. McArthur, for appellant.
     Winston Bryant, Att'y Gen., by:  Vada Berger, Asst. Att'y
Gen., for appellee.

     David Newbern, Justice.
     John Christopher Peeler was convicted of capital murder for
having killed Chris Cummings.  Mr. Peeler was referred to at the
trial as "Chris Peeler."  Chris Cummings disappeared in 1992.  Amy
Blankenship was Mr. Peeler's fifteen-year-old girlfriend at that
time.  She became Amy Peeler when she married Mr. Peeler on her
sixteenth birthday in 1993.  At Chris Peeler's trial, which took
place in 1995, Amy Peeler testified about her role in kidnapping
Mr. Cummings prior to the murder.  Mr. Peeler contends that, as Amy
Peeler was his alleged accomplice, corroborating evidence
sufficient to demonstrate that the crime was committed and that he
was connected with it was required and that it was not forthcoming. 
His second point is that the Trial Court erred in refusing his
request for a mistrial when a witness testified he thought Mr.
Peeler was "guilty."  We hold the evidence corroborating Ms.
Peeler's testimony was sufficient and that any prejudice resulting
from the testimony which gave rise to the mistrial motion was not
such as to require reversal.  We affirm the judgment in which Mr.
Peeler was sentenced to life imprisonment without parole.
     On the evening of December 19, 1992, Chris Cummings, a tenth-
grade student, told his parents that he was going to watch a movie
with "Amy" and that he would be back later.  Chris did not return. 
The next day his parents instigated a search and notified police
authorities.  His picture was circulated on flyers and on milk
cartons to no avail.  Investigators recovered neither his body nor
any physical evidence which could reveal what happened to him.
     In December 1994, the police received a call from a friend of
Amy Peeler who said Amy had revealed that her husband, Chris
Peeler, killed Chris Cummings because Cummings had raped her.  The
police arrested Amy Peeler, and she gave them a statement, repeated
at Chris Peeler's trial, implicating her husband in the murder of
Chris Cummings.
     Mr. Peeler was arrested and charged with kidnapping and
capital murder.  The State waived the death penalty, and the case
proceeded to trial.  Chris Cummings' father testified that on the
evening of Saturday, December 19, 1992, Chris Cummings was given
permission to go out to watch a movie with a girl named Amy who had
called their home that evening.  He stated that Chris Cummings had
not previously run away and had always returned home within fifteen
minutes of his curfew.
     Amy Peeler testified that Chris Cummings had been a classmate
and friend.  She testified they passed notes and talked during
their school lunch periods but did not date because she was going
out with Chris Peeler.  She was asked on direct examination to tell
of an incident involving Chris Cummings that occurred in her
father's home in November 1994.  (The question apparently was meant
to refer to November 1992.)  She responded that Chris Cummings came
to her and her father's home and raped her when her father was
away.  For a time she told no one of the incident except Chris
Peeler and his mother, Cindy Sheridan.  
     According to Amy's testimony, Chris Peeler, who was then her
boyfriend and who had returned to Arkansas at Christmas time from
Marine Corps boot camp in California, listened on another line
while she called Chris Cummings and asked why he had raped her. 
Chris Cummings made a remark during the phone conversation
confirming that the event had occurred.  Chris Peeler then had Amy
set up a meeting at Sawyer's Grocery Store.  Amy drove to the rear
of the store at about 10 p.m., after the store had closed, with
Chris Peeler hiding in the rear floorboard of the car.  When Chris
Cummings entered the vehicle, Chris Peeler jumped him, tied him up,
and put him in the trunk.  Amy testified that Chris Peeler then
took her home.  The next day he told her that he had killed Chris
Cummings and that it "took forever for him to die."  Amy stated
that Chris Peeler told her he took the body to a place near Scott
and dumped it in the water.  Chris Peeler's grandparents owned
property near Scott where they fished and with which he was
familiar.  Arkansas River backwater and slough areas are nearby.
     Amy Peeler testified that, after marrying Chris Peeler in June
1993, she lived with him for a year and a half but left him because
she could not go on "living a lie," knowing what he had done.
     Chris Peeler's mother, Cindy Sheridan, a witness for the
State, testified that her son asked her, "Mom, do you know the boy
that raped Amy?" and that when she responded affirmatively he said
he "took care of it."  She said she asked what he had done and he
stated that he "had taken the boy out to the swamp out to Scott and
did him in."  
     Randy Alford, Chris Peeler's uncle, testified that Chris
Peeler told him that he killed somebody named Chris because that
person had raped Amy.  
     Gloria Denton testified that on the nineteenth or twentieth of
December, 1992, she was living on Old River Road in Scott.  She
identified Mr. Peeler as a person who came to her house during that
time and asked to use her phone because his car was stuck in her
field.  
     Selena Johnson testified that Mr. Peeler, while at a party,
stated that he had committed the perfect murder.
     Mr. Peeler made timely motions for a directed verdict on the
ground the State had failed to present evidence that a homicide had
occurred and had failed to corroborate the accomplice testimony of
Amy Peeler.  The motions were denied.

                 1.  Sufficiency of the evidence
     A motion for directed verdict is a challenge to the
sufficiency of the evidence.   Stewart v. State, 320 Ark. 75, 894
S.W.2d 930 (1995);  Evans v. State, 317 Ark. 449, 878 S.W.2d 409
(1994).  The test is whether the verdict is supported by
substantial evidence, direct or circumstantial.  Evans v. State,
supra;  Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993). 
Substantial evidence is evidence of sufficient certainty and
precision to compel a conclusion one way or another.  Evans v.
State, supra;  Coleman v. State,  314 Ark. 143, 860 S.W.2d 747,
(1993).  We review the evidence in the light most favorable to the
appellee.  Id.
     Mr. Peeler contends a verdict should have been directed in his
favor because the State failed to produce enough evidence to
corroborate Amy Peeler's testimony.  

     A conviction cannot be had in any case of felony upon the
     testimony of an accomplice unless corroborated by other
     evidence tending to connect the defendant with the commission
     of the offense.  The corroboration is not sufficient if it
     merely shows that the offense was committed and the
     circumstances thereof.

Ark Code Ann.  16-89-111(e)(1) (1987).  The corroboration must be
sufficient standing alone to establish the commission of the
offense and to connect the defendant with it.  Hogue v. State, 323
Ark. 515, 915 S.W.2d 276 (1996);  Daniels v. State, 308 Ark. 53,
821 S.W.2d 778 (1992).  The test for corroborating evidence is
whether, if the testimony of the accomplice were totally eliminated
from the case, the other evidence independently establishes the
crime and tends to connect the accused with its commission.  Meeks
v. State, 317 Ark. 411, 878 S.W.2d 403 (1994);  Daniels v. State,
supra.  Circumstantial evidence qualifies as corroborating evidence
but it, too, must be substantial.  Id.  Corroborating evidence need
not, however, be so substantial in and of itself to sustain a
conviction.  Id.  See also Rhodes v. State, 280 Ark. 156, 655
S.W.2d 421 (1983).
     The primary evidence presented to corroborate the testimony of
Amy Peeler was the testimony of Mr. Peeler's mother and uncle. 
Both testified that Mr. Peeler admitted the murder.  That evidence
independently establishes the crime and tends to connect the
accused with its commission.

                     2.  Motion for mistrial
     Mr. Alford, Chris Peeler's uncle, when questioned as to why he
was testifying against Chris, stated, "I believe he's guilty." 
Counsel moved for a mistrial on the ground that the question and
answer were improper.  He contended the remark expressed a
conclusion reserved to the jury and was highly prejudicial and
could not be cured by an admonition to the jury.  The prosecutor
stated it had not been her intention to elicit the response Mr.
Alford made to her question.  The mistrial motion was overruled,
but the Trial Court offered to admonish the jury to disregard the
testimony.  Counsel declined the offer.  Mr. Peeler contends it was
error not to grant the motion. 
     "A mistrial is a drastic remedy which should only be used 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."  Puckett v. State,
324 Ark. 81, 918 S.W.2d 707 (1996).  See also Stewart v. State, 320
Ark. 75, 894 S.W.2d 930 (1995);  Richmond v. State, 302 Ark. 498,
791 S.W.2d 691 (1990).  A trial court has wide discretion in
granting or denying a motion for a mistrial, and absent an abuse,
the decision will not be disturbed.  Stewart v. State, supra;  King
v. State, 298 Ark. 476, 769 S.W.2d 407 (1989).  A mistrial will be
granted only where any possible prejudice cannot be removed by an
admonition to the jury.  Trull v. State, 322 Ark. 157, 908 S.W.2d
83 (1995);  Furlough v. State, 314 Ark. 146, 861 S.W.2d 297 (1993).
     Prior to asking the question, the prosecutor noted that Mr.
Alford was a "reluctant witness," and Mr. Alford confirmed it. 
Although the open-ended, follow-up question asked of Mr. Alford as
to why he had agreed to testify may have sought a response of
questionable relevance, we cannot gainsay the prosecutor's remark,
after the mistrial motion was made, to the effect that she had not
sought Mr. Alford's opinion with respect to the guilt or innocence
of the accused.  Finally, we regard the problem as one which could
have been cured by an admonition to the jury.  See Weaver v. State,
324 Ark. 290, 920 S.W.2d 491 (1996); Boyd v. State, 318 Ark. 799,
889 S.W.2d 20 (1994).  Mr. Peeler's counsel refused the Trial
Court's offer to admonish the jury on the ground that it would only
call more attention to the statement.  In these circumstances, we
hold no error occurred.

                         3. Rule 4-3(h)
     The record has been reviewed for any error resulting from
rulings prejudicial to Mr. Peeler, and none have been found.
     Affirmed.