Benjamin Williams, Jr. v. State of Arkansas

ar00-429

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN E. JENNINGS, JUDGE

DIVISION II

CACR 00-429

January 9, 2002

BENJAMIN WILLIAMS JR. APPEAL FROM PULASKI COUNTY

APPELLANT CIRCUIT COURT

VS.

HONORABLE JOHN W. LANGSTON,

CIRCUIT JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

A jury found Benjamin Williams Jr. guilty of first-degree murder, and he was sentenced to serve thirty years in prison. Appellant's attorney filed a motion to withdraw as counsel arguing that there is no merit to the appeal. In an unpublished opinion delivered February 7, 2001, we ordered rebriefing as counsel's brief failed to comply with Anders v. California, 386 U.S. 738 (1967) and Rule 4-3(j)(1) of the Rules of the Arkansas Supreme Court and Court of Appeals. He has now submitted an abstract andbrief that contains all of the adverse rulings. Appellant has filed a pro se brief to which the State has responded. We conclude that there are no meritorious issues that would support a reversal of appellant's conviction. Accordingly, we grant counsel's motion to withdraw and affirm appellant's conviction and sentence.

Appellant's conviction resulted from the shooting death of Tommy Garrison in January 1999. Appellant had earlier in the day argued with the victim over the use of the victim's truck. Lori Peppers, who witnessed the argument, testified that she heard appellant tell the victim, "Get out of my face before I shoot you." The two men happened to meet up later that night at an apartment rented by Aaron Johnson. A woman at the apartment, June Crutchfield, testified that appellant began punching Garrison. She stated that the next thing she knew, everyone was running and gunshots were heard. Crutchfield testified that she was hiding behind a chest of drawers when she peeked out and saw appellant firing the fourth shot into Garrison who lay sprawled on the floor. Gerald Johnson testified that he ran from the apartment when he saw appellant reach into the waistband of his pants and that he heard shots as he was running. Johnson stated that, when he returned, he saw Garrison lying in the doorway but that appellant had gone. Both Crutchfield and Johnson identified appellant in a photographic lineup.

Sufficiency of the Evidence

The first adverse ruling was the trial court's denial of appellant's motion for a directed verdict. On appeal, we treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. We will affirm if there is substantial evidence to support the conviction when viewed in the light most favorable to the State. Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999). The credibility of witnesses is an issue for the jury and not for this court. Stewart v. State, 338 Ark. 608, 999 S.W.2d 684 (1999). The evidence presented at trial was sufficient to support appellant's conviction. Peppers testified that she heard appellant threaten the victim. Crutchfield testified that she saw appellant fire the fourth and final shot into the victim. The State's medical examiner testified that there were four gunshot wounds and that the fourth shot was likely fired from a position above the victim. Johnson saw appellant reach for the gun, heard at least three shots fired shortly thereafter, and returned to find the victim lying dead. The jury could conclude from this evidence that appellant purposefully acted to cause Garrison's death.

Motion to Suppress the Photographic Lineup

Appellant filed a motion to suppress the photographic lineup on the basis that it was unduly suggestive and unconstitutional, and the trial court denied that motion. Johnson's and Crutchfield's testimony at the suppression hearing was similar tothat elicited at trial. Both testified that Detective J.C. White did not threaten them nor make any suggestion as to whom they should select in the lineup. The record shows that the photo graphic lineup consisted of six African-American males. Counsel's questions at the suppression hearing went to the weaknesses of the witnesses' identification of appellant, rather than to any alleged unconstitutionality of the lineup itself. We can find no error. Motion for a Continuance

The State's motion for a continuance was apparently granted by the trial court. Appellant did not object to this ruling, so no issue was preserved for review.

Other Adverse Rulings

I.

On re-cross-examination, Gerald Johnson volunteered that the other people in the immediate area where Garrison was shot were gang members. Counsel objected and at first asked for a mistrial; however, counsel withdrew the motion because Johnson did not say that appellant was a gang member. Therefore, no issue is presented for appeal.

II.

Counsel objected to the State's questioning of Johnson on the basis of relevancy about seeing appellant and the victim together on the day of the murder. Counsel argued that the State had failedto establish a time frame. Johnson thereafter testified that he saw appellant and the victim together "earlier that day," and defense counsel raised no further objection. Because the matter was clarified to appellant's satisfaction, we can find no error.

III.

Defense counsel objected during redirect of Crutchfield when she responded to a question about what she knew about Mike Smith by saying, "Evidently, they were waiting on somebody named . . ." Counsel argued that her answer called for speculation. However, defense counsel had "opened the door" by asking in earlier cross-examination whether Crutchfield had mentioned Mike Smith in her statement to police. It was not error for the court to allow her to explain her statement.

IV.

Defense counsel questioned Crutchfield about her statement to police, and counsel essentially began reading from the witness's statement. The State objected that the document was not in evidence and that counsel was, in effect, testifying. The statement was not thereafter offered or admitted into evidence.

The trial court's ruling was correct. In Hinzman v. State, 53 Ark. App. 256, 922 S.W.2d 725 (1996), this court held that a witness's prior inconsistent statement cannot be recited into therecord for impeachment purposes unless the witness is first afforded an opportunity to explain or deny the statement. Here, Crutchfield testified that she did not remember having identified anyone else as the shooter. Counsel cannot introduce the prior statement as substantive evidence because the statement had not been made under oath and was thus hearsay. See Hinzman, supra.

Moreover, counsel admits that he was attempting to use what he thought were inconsistent statements by the witness in order to bolster his theory that Mike Smith was the real shooter. In that regard, counsel would have been making an impermissible Zinger argument. In Zinger v. State, 313 Ark. 70, 852 S.W.2d 320 (1993), the supreme court held that evidence that someone other than the defendant may have committed the crime is inadmissible unless it points directly to a third party's guilt. If it creates no more than an inference or conjecture as to the third party's guilt, it is inadmissible. Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996).

V.

At the suppression hearing, when questioning whether Crutchfield had described the shooter as being six feet tall, the State objected on the basis of "asked and answered." The trial judge asked defense counsel whether the line of questioning had been raised within the scope of redirect. The court agreed thatcounsel could try to show that Mike Smith fit the description Crutchfield had given the police, but the court cautioned counsel to "stay away from the rest of it," which was an implicit reference to avoid pointing a finger at Smith through the use of mere conjecture. See Zinger, supra. The court's ruling did not harm appellant as counsel was able to show the identification conflict in front of the jury.

VI.

The trial court instructed defense counsel that his question to Crutchfield about the photographic lineup had been asked and answered. Counsel apparently agreed because he apologized to the court and moved on to another topic. Arkansas Rule of Evidence 611 provides that the court shall exercise reasonable control over the mode and order of interrogating witnesses. The trial court did not abuse its discretion in having counsel move along in the interest of avoiding needless consumption of time.

VII.

Defense counsel attempted to ask June Crutchfield whether her prior drug conviction was for crack cocaine, and the State objected. The trial court asked defense counsel for the relevancy of his question, and defense counsel conceded that the question was not relevant. Although Arkansas Rule of Evidence 609 permitsevidence that a witness has been convicted of a crime for impeach ment purposes, the cross-examiner may not go into the details of the convictions. See Floyd v. State, 278 Ark. 342, 645 S.W.2d 690 (1983). Arguably, the fact that Crutchfield's conviction was related to crack cocaine was not so specific as to be a detail. However, because counsel acquiesced in the trial court's ruling by agreeing that the question was not germane to Crutchfield's veracity, he cannot now attack it on appeal. See Rutledge v. State, 345 Ark. 243, 45 S.W.3d 825 (2001). In any event, Crutchfield resumed testifying and admitted that she was smoking crack cocaine on the evening of the shooting. Thus, counsel ultimately got precisely what he wanted from her testimony.

VIII.

Defense counsel asked permission from the bench to inquire about whether Detective White had requested a polygraph from Aaron Johnson. The State objected on the basis that polygraph evidence is inadmissible. Counsel explained that Johnson was identified as being at the murder scene and that he was not present at trial despite the fact that he had been subpoenaed. The State argued that counsel was proceeding into Zinger territory without any evidence to infer that Johnson may have committed the murder. Counsel ultimately agreed with the court that Johnson's willingness to be in court was not an element of the crime and was not relevantto the issues in the case. Evidence which does no more than create an inference or conjecture as to another's guilt is inadmissible. Zinger, supra.

IX.

In closing arguments, the State rhetorically asked what motivation the State would have to conspire against appellant. The court sustained counsel's objection to this suggestion but allowed the State to point out that it did not get to pick its witnesses but, instead, took them as it found them. Defense counsel did not object to this line of argument, so the issue was not preserved.

X.

During the sentencing phase, following an outburst for which appellant was admonished, appellant and his counsel differed on whether the trial should be recessed until the following day. The trial court advised counsel that it was his, and not appellant's, tactical decision, and the matter was recessed. Trial strategy and tactics are generally a matter within the discretion of trial counsel. See Coston v. State, 284 Ark. 144, 680 S.W.2d 107 (1984). Besides, no harm was demonstrated by counsel's decision to delay sentencing.

XI.

Also during the sentencing phase, the trial court twice instructed appellant not to ask the jurors how they would feel if they were unjustly accused of committing a crime. Counsel argues that any party's violation of the "golden rule" is improper.

A golden rule argument is one where the jury is implored to put themselves in the position of the victim. Lee v. State, 340 Ark. 504, 11 S.W.3d 553 (2000). Appellant's plea to the jury was not technically a violation of the "golden rule," but it was an irrelevant hypothetical all the same.

Appellant's Pro Se Arguments

Appellant argues that the trial court erred in limiting his counsel's questioning of a witness about fingerprints. To have allowed Detective White to testify that appellant's brother's fingerprints were found in the victim's truck would have violated Zinger. Zinger, supra. The trial court properly limited the questioning because the testimony would have only created conjec ture about a third party's guilt.

Next, appellant argues that his counsel was ineffective in failing to impeach two witnesses. We do not address this argument on direct appeal because that issue was not considered by the trial court. See Alexander v. State, 55 Ark. App. 148, 934 S.W.2d 927 (1996). In any event, appellant has not shown that either of the witnesses could have been impeached.

Rule 4-3(h) Review

From the review of the record and the briefs before us, we conclude that counsel has complied with Ark. Sup. Ct. R. 4-3(h) and that there are no arguable issues that would support an appeal. Counsel's motion to be relieved is granted, and the judgment is affirmed.

Affirmed.

PITTMAN and VAUGHT, JJ., agree.