London Holman v. State of Arkansas
Annotate this Case
Download PDF
SUPREME COURT OF ARKANSAS
No. CR07317
Opinion Delivered December 13, 2007
LONDON HOLMAN,
APPELLANT,
APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
NO. CR20061390,
HON. BARRY ALAN SIMS, JUDGE,
VS.
STATE OF ARKANSAS,
APPELLEE,
REVERSED AND REMANDED ON
DIRECT APPEAL; ERROR DECLARED
ON CROSSAPPEAL.
JIM HANNAH, Chief Justice
Appellant London Holman appeals the judgment and commitment order of the Pulaski
County Circuit Court convicting him of capital murder and aggravated robbery, for which
he was sentenced to concurrent terms of life imprisonment and forty years, respectively. On
appeal, Holman raises six points for reversal and contends that the circuit court erred: (1) in
allowing the State to present badact evidence; (2) in refusing to allow Holman to present the
testimony of firearms expert, Richard Ernest; (3) in refusing to grant an incamera hearing
to determine if the State would ask irrelevant questions that would force Holman to invoke
his Fifth Amendment privilege against selfincrimination and in refusing to grant a mistrial
when Holman was forced to invoke the privilege in the presence of the jury; (4) in refusing
to grant a hearing on Holman’s motion for new trial; (5) in refusing to instruct the jury that
it was not to draw any inference from Holman’s claim of his privilege against self
incrimination and in denying his motion for new trial; and (6) in showing partiality to the
State over the defense, thereby violating the dueprocess clauses by denying Holman a fair
trial. The State raises one point for reversal on crossappeal, arguing that the circuit court
erred in instructing the jury that felony manslaughter is a lesserincluded offense of felony
murder. As this is a criminal appeal involving a sentence of life imprisonment, our
jurisdiction is pursuant to Ark. Sup. Ct. R. 12(a)(2). We reverse and remand on direct
appeal and declare error on crossappeal. We need address only two points on appeal and
the point on crossappeal.
Because Holman does not challenge the sufficiency of the evidence, only a brief
recitation of the facts adduced at trial is necessary. On the night of February 16, 2006,
Holman’s wife told her godmother, Latona McDonnell, that Holman and others were going
to rob Advance Auto Parts, where he once worked. Later that night, Holman drove
Demontierre Perry and Myesha Cooper to a location near the store. Perry approached John
Shelton, a manager at Advance Auto Parts, demanded money from him, and then shot him,
1
killing him. Holman, Perry, and Cooper were subsequently charged with capital murder and
aggravated robbery. Holman admitted that he participated in planning the robbery, that he
drove Perry and Cooper to the approximate scene of the robbery, and that he advised Perry
to dispose of the gun after Perry told him he shot someone, but he asserted an affirmative
1
This court affirmed Demontierre Perry’s convictions for firstdegree murder and
aggravated robbery. Perry v.State, ___ Ark. ___, ___ S.W.3d ___ (Oct. 4, 2007).
2
CR07317
defense, pursuant to Ark. Code Ann. § 510101(b) (Supp. 2003), averring that he was not
the only participant in the offense and that he did not commit the homicidal act or in any way
solicit, command, induce, procure, counsel, or aid in its commission.
Admission of BadAct Evidence
Holman first argues that the circuit court abused its discretion in admitting evidence
of a statement he made on the telephone to then thirteenyearold Iesha McDonnell and by
admitting checks, drivers’ licenses, and Social Security cards belonging to third parties
discovered during a search of his home. Holman contends that this evidence was admitted,
in violation of Arkansas Rule of Evidence 404(b), to prove that he was a bad person, and
that, even if the evidence were somehow relevant, it nevertheless should have been excluded
under Arkansas Rule of Evidence 403 because its probative value was substantially
outweighed by the danger of unfair prejudice.
Arkansas Rule of Evidence 404(b) allows evidence of other crimes, wrongs, or acts
to be admitted if it is relevant to show such things as “motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.” However,
evidence is not admissible under Rule 404(b) if its purpose is to show a defendant’s bad
character traits and to show he acted in conformity therewith in the case at bar. See Morris
v. State, 367 Ark. 406, ___ S.W.3d ___ (2006). For evidence to be admissible under Rule
404(b), it must be relevant to prove the main issue independently from proving bad character.
See Green v. State, 365 Ark. 478, 231 S.W.3d 638 (2006).
Evidence admitted under 404(b) is independently relevant if it has a tendency to make
3
CR07317
the existence of any fact that is of consequence to the determination of the action more or
less probable than it would be without the evidence. Morris, supra. When evidence of a
prior wrong reflects consciousness of guilt of the commission of the crime charged, it is
independently relevant and admissible under Rule 404(b). See Eliott v. State, 342 Ark. 237,
27 S.W.3d 432 (2000).
Statement to Iesha McDonnell
Iesha McDonnell is the daughter of the godmother of Holman’s wife. On March 23,
2006, Holman called the McDonnell home in order to speak with his wife, who was then
living with the McDonnells. When his attempts to speak with his wife and Iesha’s mother,
Latona, were unsuccessful, Holman stated, “All you bitches and some hos, man. I got all you
motherfuckers when I get up out of here. Fuck this shit.” Before admission of this
statement, the jury learned that Iesha’s mother informed the police of Holman’s participation
in the robbery and subsequently wore a wire in order to help identify other people involved.
The information she provided led to the issuance of a warrant to search Holman’s house. On
February 24, 2006, Detective Eric Knowles of the Little Rock Police Department told
Holman that he had been speaking with Holman’s wife and that he knew what happened.
Knowles testified that he thought his interview with Holman’s wife prompted Holman to give
a statement—a thought Holman confirmed in his statement to the police and in his testimony
at trial.
As he did before the circuit court, Holman argues that the recorded statement is
inadmissible because it is improper character evidence and it does not demonstrate his
4
CR07317
“consciousness of guilt.” Both Holman and the State cite to Mendiola v. State, 92 Ark. App.
359, 214 S.W.3d 271 (2005), where the court of appeals held that evidence of a defendant’s
nonverbal threats to a police officer during a pretrial hearing was admissible under Rule
404(b) to show the defendant’s consciousness of guilt. The State contends that Mendiola
supports admission of the statement, while Holman claims that Mendiola is clearly
distinguishable. In Mendiola, at a pretrial hearing, the appellant looked toward a police
investigator, made a “fingergun motion,” and put his thumb down in a shooting motion.
During the same hearing, the appellant mouthed the words “you’re dead” to the police
investigator.
The court of appeals noted:
The State argues that the testimony regarding appellant’s nonverbal threats
was relevant and probative to prove his consciousness of guilt with respect to
the charges of aggravated robbery and kidnapping. They were not offered
simply to show that he was a criminal, but rather to show his attempt to silence
a key witness from testifying at trial. Efforts to conceal evidence demonstrate
a consciousness of guilt and are therefore admissible. Coggin v. State, 356
Ark. 424, 156 S.W.3d 712 (2004); see also Eliott v. State, 342 Ark. 237, 27
S.W.3d 432 (2000) (holding that when evidence of a past crime reflects a
consciousness of guilt, it is independently relevant and admissible under Rule
404(b)). The Eighth Circuit Court of Appeals has specifically held that
evidence of death threats against witnesses or other parties cooperating with
the government is generally admissible against a defendant to show
consciousness of guilt with respect to the crimes charged. United States v.
Griffith, 301 F.3d 880 (8th Cir. 2002).
Mendiola, 92 Ark. App. at 362, 214 S.W.3d at 274.
Holman claims that Mendiola is not on point because the evidence in the case at bar
does not show an attempt to silence a witness from testifying at trial; thus, it does not
5
CR07317
constitute evidence of consciousness of guilt with respect to the crimes charged. For its part,
the State claims that, when Holman spoke to Iesha on March 23, 2006, he may well have
known that her mother gave information to the police about the robbery and he certainly
knew that his wife had. While it is not clear from the record whether Holman knew that
Latona had been cooperating with the police, it is certainly evident that Holman knew police
had spoken to his wife. As previously mentioned, on February 24, 2006, Detective Knowles
told Holman that he had been speaking with Holman’s wife and that he knew what happened,
and Holman admitted that the communication with his wife prompted him to give a statement
to police. The State contends that Holman was aware that his wife was cooperating with the
police in the investigation of his crimes, and that, against that backdrop, his claim that those
staying in the McDonnell household were “bitches” and “hos” and that, when “he g[o]t up
out of here[,]’ he was going to “g[e]t all you motherfuckers[ ]” could reasonably be
understood as a threat against the women who had cooperated with the police.
Holman claims that his conversation with Iesha did not demonstrate his consciousness
of guilt, but that it merely showed his frustration at not being able to speak to his wife about
arranging bail. As pointed out by the State, the jury was aware that Holman was frustrated
about not being able to speak with his wife. Iesha testified that Holman called and wanted
to speak to his wife, but that his wife did not want to speak to him. She also stated that she
could tell Holman was frustrated by the tone of his voice. Thus, the State contends that the
jury could decide for itself whether Holman’s threat stemmed from his frustration about not
being able to speak to his wife or from a combined frustration that the women of the
6
CR07317
McDonnell household were conspiring against him, a conspiracy that included refusing to
speak with him as well as cooperating with the police. As previously noted, it is not clear
from the record that Holman knew that Latona had been cooperating with the police, but it
is quite clear from the record that he knew that his wife had been speaking to the police.
What prompted Holman’s statement to Iesha, be it his frustration over not being able to speak
to his wife or his frustration over his wife’s conversation with police, was a matter for the
jury to decide. Accordingly, we hold that the circuit court did not abuse its discretion in
2
admitting evidence of the recorded conversation.
Still, Holman argues that, even if this court determines that the statement was
independently relevant, the circuit court should have excluded it pursuant to Arkansas Rule
of Evidence 403 because the statement had no probative value and was highly prejudicial.
The balancing of probative value against prejudice, under Rule 403, is a matter left to the
sound discretion of the circuit court. Davis v. State, 368 Ark. 401, ___ S.W.3d ___ (2007).
The lower court’s decision on such a matter will not be reversed absent a manifest abuse of
that discretion. Id. We cannot say that the circuit court abused its discretion in concluding
that the statement was admissible pursuant to Rule 403.
2
We note that Holman claims that the jury heard only a snippet of the conversation rather
than the entire conversation, which allegedly would have shown that his remarks reflected only his
anger about not being able to speak with his wife. The record reflects that the circuit court did
not prevent Holman from playing a recording of the entire conversation. Before trial, the deputy
prosecutor stated that if the defense wanted him to, he would play the entire conversation, and the
circuit court did not rule that it could not be played. When the deputy prosecutor played the
portion of the conversation, Holman did not request that it be played in full.
7
CR07317
Finally, Holman argues that the admission of his conversation with Iesha was unduly
prejudicial because it revealed that he was incarcerated at the time. The State claims that
Holman did not raise this argument below. The State is incorrect. The record clearly reflects
that Holman raised this argument at the trial level. Nevertheless, Holman’s argument is
without merit. We have stated that facts which indicate that a defendant is incarcerated are
not prejudicial per se. Banks v. State, 315 Ark. 666, 869 S.W.2d 700 (1994). We have
further stated that prejudice will not be presumed. Id. The fact that Holman was in jail at
the time he spoke to Iesha is not prejudicial in and of itself. The jurors knew, per testimony
at trial, that Holman had been arrested on February 24, 2006, for the crimes for which he was
on trial; thus, the jury would likely not be surprised by the fact that Holman was still in jail
on March 23, 2006, the day he made the statement to Iesha. See Banks, 315 Ark. at 672, 869
S.W.2d at 704 (stating that “[i]t would come as no surprise to the jury to learn that a person
charged with capital murder was a resident of the county jail before trial”). For the foregoing
reasons, we hold that the circuit court did not abuse its discretion in admitting the statement
Holman made to Iesha.
Checks, Drivers’ Licenses, and Social Security Cards
During its caseinchief, the prosecution presented evidence that, during a search of
Holman’s home, a black plastic bag was found in the crawl space underneath the bathroom,
3
which was accessed by a hole in the bathroom floor. Inside the bag was a “Styrofoam
3
According to Todd Hurd, a detective with the Little Rock Police Department, police
searched in the bathroom crawl space because after they announced their presence before
8
CR07317
holder” containing thirtyone rounds of .38 Special ammunition. Testimony was offered
showing that a revolver seized at Perry’s residence contained six live Winchester .38 caliber
rounds. Further testimony showed that four additional Winchester .38 rounds were
discovered on Perry’s dresser. The prosecution also offered evidence to prove that the
cartridges discovered in the revolver and on the dresser at Perry’s residence could have come
from the box of cartridges originally contained in the “Styrofoam holder” discovered at
Holman’s residence. Testimony showed that the bunter marks on the rounds found at
Holman’s residence were similar to the bunter marks on the rounds found in the revolver and
the rounds found on the dresser.
In rebuttal, the prosecution sought to introduce evidence of checks, drivers’ licenses,
and Social Security cards belonging to others which were found in Holman’s home. Holman
argued below, as he does on appeal, that the evidence was inadmissible under Rule 404(b)
because it related to uncharged conduct and had no independent relevance to the charges
against him. Holman states that the evidence was highly prejudicial in that it likely
persuaded the jury that he was a criminal who must have also committed the crimes at issue
in the case at bar.
The State contends:
The prosecution’s theory was that appellant provided Perry the bullets used in
the crimes and knew that discovery of the bullets in his house could link him
to the crimes. Consequently, when he learned that the police were getting
executing the warrant, they heard a noise, like something being banged against ceramic, coming
from the direction of the bathroom.
9
CR07317
ready to enter his house, he hid the box of bullets, implicating him in a
murder, instead of hiding the checks, drivers’ licenses, and Social Security
cards implicating him in significantly less serious crimes. Had appellant not
known the bullets connected him to the crimes, he would not have hidden
them, but, instead, would have hidden evidence of his other crimes. Because
this evidence tended to show appellant’s knowledge and rebut his claim that
he was not aware Perry had a gun—a claim crucial to his affirmative defense
to firstdegree murder pursuant to Ark. Code Ann. § 510102(b)(3) (Repl.
2006)—the trial court did not abuse its discretion by admitting it over his
objections.
We are unimpressed with the State’s argument. Apparently, the State asks us to infer
from the facts that when Holman realized that the police were about to enter his home, he
decided that he only had time to hide either the evidence of his complicity in the murder of
John Shelton or the evidence of his lesser and wholly unrelated crime of identification theft.
Based on this inference, we are asked to make yet another inference, which is that Holman
naturally chose to hide the evidence of the more serious crime. From these two inferences,
we are asked to reach a third inference—that leaving the evidence of the crime of
identification theft where it could be found shows that Holman was involved in the murder
and knew Perry had a gun. This sort of deduction is not even permissible in a civil case. In
State Farm Mutual Automobile Insurance Co. v. Traylor, 263 Ark. 92, 565 S.W.2d 595
(1978), we stated that an inference is not a substitute for evidence. Further, the indulgence
of inferences will not supply a nonexistent fact. Id. An inference may not be forced and
guesswork is not an allowable substitute for evidence. Id. Even if we were to indulge the
State’s stacking of inferences, the evidence would still be inadmissible because its probative
value is less than slight and the prejudicial harm is great. The circuit court clearly abused
10
CR07317
its discretion in admitting this evidence.
Denial of Motions for Mistrial
We next turn to Holman’s argument that the circuit court erred in denying his motions
for mistrial after he was forced to invoke his privilege against selfincrimination in front of
the jury. Early in the trial, Holman notified the court and the prosecutor that, because the
prosecutor had informed his counsel that he may be charged with a federal crime if he were
not convicted of the charges in state court, he would invoke the privilege against self
incrimination to questions which may be posed by the prosecutor about domestic abuse or
ownership of a gun. The prosecutor responded that Holman’s taking the stand would result
in a waiver of his Fifth Amendment privilege, making all questioning “fair game.” Holman
replied that a criminal defendant cannot be forced to choose between testifying and not
incriminating himself with regard to potential charges that the government may bring. In
addition, Holman gave notice that if he were forced to invoke the privilege in the jury’s
presence, he would request a mistrial.
Holman argued that, on crossexamination, the prosecutor could question him
regarding those areas that could result in future charges only if Holman opened the door to
those areas on direct examination. The circuit court disagreed, stating: “If he takes the stand,
he’s opening himself up to anything that’s asked.” In addition, the circuit court rejected
Holman’s request for an incamera review of Holman’s testimony prior to his taking the
stand. Holman took the stand and invoked the privilege several times, prompting defense
counsel to make motions for mistrial. Each motion was denied.
11
CR07317
First, we must address the circuit court’s ruling that, once Holman took the stand, the
State was free to question him on any matter. The circuit court erred. The Supreme Court
of the United States has explained:
It is well established that a witness, in a single proceeding, may not testify
voluntarily about a subject and then invoke the privilege against self
incrimination when questioned about the details. See Rogers v. United States,
340 U.S. 367, 373 (1951). The privilege is waived for the matters to which the
witness testifies, and the scope of the “waiver is determined by the scope of
relevant crossexamination,” Brown v. United States, 356 U.S. 148, 15455
(1958). “The witness himself, certainly if he is a party, determines the area of
disclosure and therefore of inquiry,” id., at 155.
...
The justifications for the rule of waiver in the testimonial context are evident:
A witness may not pick and choose what aspects of a particular subject to
discuss without casting doubt on the trustworthiness of the statements and
diminishing the integrity of the factual inquiry. As noted in Rogers, a contrary
rule “would open the way to distortion of facts by permitting a witness to
select any stopping place in the testimony,” 340 U.S. at 371. It would, as we
said in Brown, “make of the Fifth Amendment not only a humane safeguard
against judicially coerced selfdisclosure but a positive invitation to mutilate
the truth a party offers to tell,” 356 U.S. at 156. The illogic of allowing a
witness to offer only selfselected testimony should be obvious even to the
witness, so there is no unfairness in allowing crossexamination when
testimony is given without invoking the privilege.
Mitchell v. United States, 526 U.S. 314, 32122 (1999). See also Hill v. State, 285 Ark. 77,
685 S.W.2d 495 (1985) (stating that, where the defendant took the stand and raised the
subject on direct, the State’s crossexamination of the defendant on that subject was proper).
The circuit court clearly erred in concluding that, if Holman testified, he waived the
privilege as to any questioning by the State. Holman waived his privilege only to those
matters to which he testified. But our inquiry does not end here. We must determine
12
CR07317
whether the questions to which Holman asserted the privilege were within the scope of
relevant crossexamination. We look to Holman’s testimony and claims of privilege to
determine whether Holman was, in fact, entitled to assert the privilege and, if so, whether
his assertion of the privilege in front of the jury warranted a mistrial.
On direct examination, Holman testified that he realized Perry had a gun when Perry
got back into his truck after the robbery, that he did not hear a loud crashing noise that
Detective Hurd had reported hearing when officers arrived at his house, and that the
bathroom under which the officers found cartridges was not usable, as it was being
remodeled and there was a hole in the floor. On crossexamination, the following occurred:
Q:
I’d like to ask you some questions about the gun. Are you saying that
you’ve never seen that gun before?
A:
I’d like to plead the Fifth on that.
Q:
Well, I’m asking you. . .
At that point, defense counsel approached the bench and moved for a mistrial. The
circuit court denied the motion. Further, the circuit court stated that he would instruct
Holman to answer the question and informed Holman that if he did not answer, the court
would hold him in contempt. Crossexamination then resumed:
Q:
Mr. Holman, have you ever seen that gun before?
A:
I’d like to plead the Fifth.
THE COURT: I’m instructing you to answer that question,
Mr. Holman.
HOLMAN: I’d like to plead the Fifth, Your Honor.
13
CR07317
Q:
So you’re telling us that you’re going to refuse to answer that question?
A:
I would like to plead the Fifth Amendment on that question.
Q:
Okay, well, now, I didn’t ask you if you were pleading the Fifth; I
asked specifically if you were refusing to answer that question. That’s a
pretty simple question, yes or no?
A:
I have a constitutional right, sir.
Q:
Okay. Well, how about this? You were asked earlier what kind of
things you and Mr. Perry do together; is that correct?
A:
Yes.
Q:
And you said you liked to go and play pool or whatever; is that correct?
A:
Yes, it is.
Q:
You ever went to go shoot this gun with Mr. Perry on New Year’s Eve?
A:
I would like—
Q:
This last year?
A:
I would like to plead the Fifth Amendment.
Q:
You’re refusing to answer that question?
A:
I would like to plead the Fifth Amendment.
DEFENSE COUNSEL: Your Honor, we would again renew our
motion.
THE COURT: It’s overruled.
Q:
Would you agree that you kept—before Mr. Shelton was killed, you
kept that gun at your house under your mattress?
A:
I would like to plead the Fifth Amendment, Your Honor.
14
CR07317
Q:
So are you refusing to answer that question?
DEFENSE COUNSEL: Same objection, Your Honor.
THE COURT: Overruled. Answer the question.
A:
I would like to plead the Fifth Amendment, Your Honor.
Q:
As it relates to, I guess, would you—you were saying earlier that you
had a hole in your house, in the floor of your house, correct?
A:
Yes, I do.
Q:
And there was water damage in that hole?
A:
Yes.
Q:
Is that a reasonable place to keep ammunition?
A:
No, it’s not.
Q:
It’s not? Why’d you put ammunition under the house?
A:
I would like to plead the Fifth Amendment on that, also.
The State contends that the deputy prosecutor’s questions regarding the gun and
ammunition were permissible because Holman’s knowledge of the gun before the robbery
and his use of a hole in the floor of an unusable bathroom for the storage of bullets were
reasonably related to his testimony on direct examination. We agree. The questions
regarding the gun and ammunition were within the scope of relevant crossexamination. The
United States Supreme Court has stated:
If he takes the stand and testifies in his own defense his credibility may be
impeached and his testimony assailed like that of any other witness, and the
breadth of his waiver is determined by the scope of relevant cross
examination. ‘[H]e has no right to set forth to the jury all the facts which tend
15
CR07317
in his favor without laying himself open to a crossexamination upon those
facts.’ Fitzpatrick v. United States, 178 U.S. 304, 315; and see Reagan v.
United States, 157 U.S. 301, 30405.
Brown v. United States, 356 U.S. 148, 15455 (1958).
Because the deputy prosecutor’s questions regarding the gun and ammunition were
within the relevant scope of crossexamination, Holman was not entitled to assert his
privilege against selfincrimination as to those questions. The circuit court did not err in
denying Holman’s motion for mistrial as to this questioning.
Holman next asserted the privilege when asked about the checks, drivers’ licenses,
and Social Security cards belonging to other individuals that were found during the search
of his home. The deputy prosecutor contended that questions regarding these items were
within the relevant scope of crossexamination because Holman had testified that he was
4
having financial difficulties. The following occurred:
Q:
When the police did their search warrant on your desk here, why would
you have Micah Davidson’s driver’s license?
A:
I would like to plead the Fifth, sir.
Q:
Why would you have Joshua Norton’s Social Security card and driver’s
license?
A:
I also plead the Fifth on that, too.
Q:
Why would you have Christopher Carrots’ Social Security card and
4
Although we have determined that the circuit court abused its discretion in admitting the
evidence on rebuttal pursuant to Ark. R. Evid. 404(b), the evidence could potentially be
admissible on crossexamination if, as the State alleges, Holman opened the door to questions
about the checks, drivers’ licenses, and Social Security cards during direct examination.
16
CR07317
driver’s license?
DEFENSE COUNSEL: We renew our motion for a mistrial, Your Honor.
THE COURT:
That’s denied.
A:
I also plead the Fifth on that.
Q:
Why would you have Marcello Covington’s blank check?
A:
I’d also like to plead the Fifth on that.
Q:
Sarah Weedman’s blank check?
A:
I’d also like to plead the Fifth on that.
Q:
A check made out for $603.12 to Engeli Clark.
A:
I’d also like to plead the Fifth on that.
Q:
This is at your house, is it not?
A:
I would like to plead the Fifth.
Upon review of the record, we conclude that the questions regarding the checks,
drivers’ licenses, and Social Security cards found at Holman’s house were not within the
relevant scope of crossexamination. Holman testified that he was having financial
difficulties. He did not testify that he was engaged in identification theft to resolve his
financial problems. Because his answers to those questions could incriminate him in a
matter wholly unrelated to the case at bar and because Holman did not open the door to such
questions when he testified on direct examination that he was having financial difficulties,
Holman should not have been forced to invoke his privilege against selfincrimination in
front of the jury. Holman argues that he was entitled to a mistrial, and we agree. We have
17
CR07317
made it very clear that a mistrial is a drastic remedy that should only be granted when justice
cannot be served by continuing at trial, or when the error cannot be cured by an instruction
or admonishment. See, e.g., Jackson v. State, 368 Ark. 610, ___ S.W.3d ___ (2007).
Whether the error could have been cured by an instruction or admonishment is not at issue
here because the circuit court refused a requested instruction regarding privilege. Here, once
Holman was forced to assert his privilege against selfincrimination in front of the jury, with
respect to the questions concerning the checks, drivers’ licenses, and Social Security cards
found at his home, justice could not be served by continuing the trial. At that point, the
granting of a mistrial was warranted, and the circuit court erred in denying Holman’s mistrial
motion.
On direct appeal, we have addressed the points that require reversal, as well as the
points that are likely to come up again upon retrial. We hold that the circuit court did not
abuse its discretion in admitting evidence of a statement he made on the telephone to Iesha
McDonnell. We hold that the circuit court abused its discretion in admitting evidence of
checks, drivers’ licenses, and Social Security cards belonging to third parties. We hold that
the circuit court did not err in denying Holman’s motion for mistrial when Holman asserted
his privilege against selfincrimination in front of the jury with respect to questions
concerning the gun and ammunition. We hold that the circuit court erred in denying
Holman’s motion for mistrial when Holman asserted his privilege against selfincrimination
in front of the jury with respect to questions concerning the checks, drivers’ licenses, and
Social Security cards belonging to third parties. We need not address the remaining points
18
CR07317
on appeal.
We will, however, address the State’s argument on crossappeal. The State contends
that the circuit court erred in instructing the jury that felony manslaughter is a lesserincluded
offense of felony murder. We agree. Recently, in Perry v. State, ___ Ark. ___, ___ S.W.3d
___ (Oct. 4, 2007), we reaffirmed our holding in Hill v. State, 344 Ark. 216, 40 S.W.3d 751
5
(2001), that a negligent homicide under felony manslaughter is not a lesserincluded offense
of capitalfelony murder or firstdegree felony murder. Accordingly, we held in Perry that
the circuit court erred in instructing the jury on felony manslaughter as a lesserincluded
offense of felony murder. Likewise, we hold in this case that the circuit court erred in
instructing the jury that felony manslaughter is a lesserincluded offense of felony murder.
As a final observation, we note that the State, on a variety of points, claimed that
Holman’s arguments were procedurally barred. While not specifically addressed because
of our reversal of this case, our review of the record reveals that several of the issues were
indeed clearly preserved. We bring this to the parties’ attention merely to point out that
appellate parties must take great care in reviewing the record and making arguments to this
court.
Reversed and remanded on direct appeal; error declared on crossappeal.
5
Hill was overruled on other grounds by Grillot v. State, 353 Ark. 294, 107 S.W.3d 136
(2003).
19
CR07317
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
