Morris v. State

Johnnie MORRIS v. STATE of Arkansas

CA CR 95-556                                       ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division II
                  Opinion delivered May 1, 1996


1.   Criminal law -- evidence of post-crime conduct may be both
     relevant and admissible -- objections to circumstantial
     evidence on irrelevancy grounds not favored. -- Evidence of
     post-crime conduct has been held relevant and admissible in a
     variety of contexts under Arkansas law; a defendant's
     hostility and anger after the killing of his victim was held
     relevant to show intent; in a sexual abuse case, evidence of
     the victim's fear and repulsion after the attack was deemed
     relevant to the issue of consent; even conduct of a defendant
     on the day of trial was relevant to show guilt; objections to
     circumstantial evidence on grounds of irrelevancy are not
     favored because the force and effect of circumstantial facts
     usually and almost necessarily depend upon their connection
     with each other. 

2.   Criminal law -- testimony of appellant's threat relevant -- no
     abuse of discretion found. -- The trial court did not abuse
     its discretion by admitting the testimony of appellant's
     threat; relevant evidence is evidence having any tendency to
     make the existence of any fact of consequence to the
     determination of the action more probable or less probable
     than it would be without the evidence; the fact that the
     threat occurred the day after the crime made it no less
     relevant to the issues of consent, intent, or guilt.

3.   Trial -- motion for mistrial properly denied -- no abuse of
     discretion found. -- It was not an abuse of discretion to deny
     appellant's motion for a mistrial where it was not an abuse of
     discretion to admit the evidence; a mistrial is a drastic
     remedy to which resort should be had only when there has been
     an error so prejudicial that justice cannot be served by
     continuing the trial; the denial of appellant's motion for a
     mistrial was affirmed.  

4.   Motions -- motion in limine properly denied -- no abuse of
     discretion found. -- Where appellant sought to present this
     testimony to show consent in the first rape case but wanted
     also to limit the testimony to avoid any reference that
     witness might make to her own rape that occurred in the same
     bedroom five months later, denial of appellant's motion in
     limine by the trial court was not an abuse of discretion; the
     denial of a motion in limine, by its very nature, often leaves
     the proponent of the evidence with several choices, any of
     them potentially unfavorable; such a dilemma is not improper,
     however uncomfortable it may be for the party affected by it;
     here, the court's ruling did not deny a right or compel
     appellant's decision one way or the other; it was not an abuse
     of discretion for the court to decline to immunize appellant
     from making that choice and facing its consequences. 

5.   Criminal law -- error relating only to punishment corrected by
     reducing sentence -- appellant's kidnapping conviction
     modified to reflect Class B felony. -- Where appellant's
     judgment and commitment listed appellant's kidnapping charge
     as a class Y felony, but, under Ark. Code Ann. 5-11-
     102(b)(Repl. 1993), it should have been a class B felony, the
     appellate court modified the judgment and commitment order to
     reflect kidnapping as a class B felony; an error that relates
     only to punishment may be corrected by reducing the sentence
     in lieu of reversing and remanding for a new trial; the court
     may also reverse, affirm, or modify the judgment or order
     appealed from, in whole or in part and as to any or all
     parties. 

     Appeal from Pulaski Circuit Court; Chris Piazza, Judge;
affirmed as modified.
     William R. Simpson, Jr., Public Defender, by:  C. Joseph
Cordi, Jr., Deputy Public Defender, for appellant.
     Winston Bryant, Att'y Gen., by:  J. Brent Standridge, Asst.
Att'y Gen., for appellee.

     Wendell L. Griffen, Judge.
*ADVREP*CA4*               DIVISION II





                                   CACR 95-556

                                                May 1, 1996


JOHNNIE MORRIS                     AN APPEAL FROM PULASKI         
            APPELLANT              CIRCUIT COURT
                                   NOS. 94-2135 and 94-2136


V.                                 HONORABLE CHRIS PIAZZA, JUDGE

STATE OF ARKANSAS
            APPELLEE               AFFIRMED AS MODIFIED




                   Wendell L. Griffen, Judge.


     This appeal arises from separate rape convictions of the same
defendant, Johnnie Morris.  On November 28, 1994, appellant Morris
was convicted of the June 18, 1994, rape, battery, and kidnapping
of his Jane Doe.  One week later, Morris was convicted of the
February 17, 1994, rape of Mary Roe.  The Roe rape, although it
occurred first, was tried second.  
     Morris raises three points on appeal.  First, he argues that
the trial court abused its discretion when it allowed into evidence
Jane Doe's testimony about an alleged threat that Morris
communicated to her the day after she was raped.   Appellant also
asks us to reverse the court's denial of his motion in limine which
sought to limit the scope of testimony from Jane Doe, his second
victim, in the rape trial involving the attack on Mary Roe.  Third,
appellant asks us to correct an error in the judgment and
commitment order that mistakenly listed the kidnapping charge as a
Class Y, instead of a Class B, felony.  We affirm the first two
points and modify the judgment to reflect the appropriate felony
class on the third point. 
     Jane Doe was raped at appellant's residence on June 18, 1994. 
She reported the attack to the police, and an article concerning a
reported rape appeared in a local newspaper the next day.  At the
rape trial, appellant's counsel sought to exclude Doe's testimony
concerning a telephone conversation that appellant had with her
after the newspaper article appeared.  Appellant allegedly
mentioned to her during the conversation that if she had reported
a rape, and accused him, then he would be tried for murder rather
than rape.  Appellant objected to her testimony regarding his post-
crime statements on relevancy grounds.       
     Evidence of post-crime conduct has been held relevant and
admissible in a variety of contexts under Arkansas law.  A
defendant's hostility and anger after the killing of his victim was
held relevant to show intent.  Segerstrom v. State, 301 Ark. 314,
783 S.W.2d 847 (1990).  In a sexual abuse case, evidence of the
victim's fear and repulsion after the attack was deemed relevant to
the issue of consent.  Skiver v. State, 37 Ark. App. 146, 826 S.W.2d 309 (1992).  Even conduct of a defendant on the day of trial
was relevant to show guilt.  Morris v. State, 21 Ark. App. 228, 731
S.W.2d (1987).  Objections to circumstantial evidence on grounds of
irrelevancy are not favored because the force and effect of
circumstantial facts usually and almost necessarily depend upon
their connection with each other.  Grigsby v. State, 260 Ark. 499,
542 S.W.2d 275 (1976).  
     The trial court did not abuse its discretion by admitting the
testimony of appellant's threat.  Relevant evidence is evidence
having any tendency to make the existence of any fact of
consequence to the determination of the action more probable or
less probable than it would be without the evidence.  Ark. R. Evid.
401.  The fact that the threat occurred the day after the crime
made it no less relevant to the issues of consent, intent, or
guilt.  
     Because it was not an abuse of discretion to admit the
evidence, we also hold that it was not an abuse of discretion to
deny appellant's motion for a mistrial.  A mistrial is a drastic
remedy to which resort should be had only when there has been an
error so prejudicial that justice cannot be served by continuing
the trial.  Reel v. State, 318 Ark. 565, 886 S.W.2d 615 (1994). 
The denial of appellant's motion for a mistrial is affirmed.  
     Appellant's second point on appeal involves his motion in
limine in the second (Mary Roe) rape case.  He sought to present
testimony from Jane Doe, the victim in the first rape case, that
she was knocking on appellant's bedroom window about the time of
the Mary Roe rape, and that she heard nothing unusual.  Appellant
sought to present this testimony to show consent in the Mary Roe
case, but wanted also to limit the testimony to avoid any reference
Jane Doe might make to her own rape that occurred in the same
bedroom five months later. 
     The trial court denied appellant's motion in limine. 
Appellant then elected not to present testimony from Jane Doe.  On
appeal, appellant assigns error to the trial court's denial of the
motion, and he contends that he should not have been forced to make
the Hobson's choice between presenting testimony from a witness
with both exculpatory and inculpatory information and presenting no 
testimony from that witness at all.  However, the denial of a
motion in limine, by its very nature, often leaves the proponent of
the evidence with several choices, any of them potentially
unfavorable.  The proponent may decide to forego presenting any
proof from the witness.  He may decide to present the proof through
another source deemed less damaging.  Or, the proponent may decide
to run the risk of the damaging testimony in the hope that the
trier of fact will give it less weight than the testimony that is
not damaging.  This dilemma is not improper, however uncomfortable
it may be for the party affected by it.  Here, the court's ruling
did not deny a right or compel appellant's decision one way or the
other.  Whether to put Jane Doe on the stand or not was a matter of
trial strategy -- a process that trial lawyers and their clients
must undertake in every trial.  It was not an abuse of discretion
for the court to decline to immunize appellant from making that
choice and facing its consequences. 
     For his final point, appellant urges us to correct the
judgment and commitment order that listed appellant's kidnapping
charge as a Class Y felony.  Appellant points us to Ark. Code Ann.
 5-11-102(b) (Repl. 1993) which classifies kidnapping as a Class
Y felony "except that if the defendant shows by a preponderance of
the evidence that he or an accomplice voluntarily released the
person restrained alive and in a safe place prior to trial, it is
a Class B felony."  The jury specifically found that appellant
voluntarily released Jane Doe "alive and in a safe place." 
Appellant asserts, and appellee agrees, that the correct
classification of kidnapping on these facts should have been
Class B.  
     An error which relates only to punishment may be corrected by
reducing the sentence in lieu of reversing and remanding for a new
trial.  Richards v. State, 309 Ark. 133, 827 S.W.2d 155 (1992).  By
statute, this court may also reverse, affirm, or modify the
judgment or order appealed from, in whole or in part and as to any
or all parties.  Ark. Code Ann.  16-67-325(a) (1987). 
Accordingly, we modify the judgment and commitment order to reflect
kidnapping as a Class B felony in this matter.  Otherwise, the
judgment is affirmed.
     Affirmed as modified.
     Mayfield, J., agrees.
     Pittman, J., concurs in the result.