James Avery Slack v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

CHIEF JUDGE JOHN F. STROUD, JR.

DIVISION IV

JAMES AVERY SLACK

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 99-809

February 21, 2000

APPEAL FROM THE FAULKNER

COUNTY CIRCUIT COURT, FIRST

DIVISION [CR97-441]

HONORABLE DAVID L.

REYNOLDS, CIRCUIT JUDGE

AFFIRMED

Appellant, James Slack, was charged with the offenses of kidnaping, terroristic threatening, and being a felon in possession of a firearm. He was tried by a jury and found guilty of the offenses of kidnaping and second-degree terroristic threatening. The jury found that he was not guilty of the felon in possession of a firearm charge. He was sentenced as an habitual offender and received 720 months on the kidnaping conviction and twelve months on the second-degree terroristic threatening conviction, with the sentences to run concurrently. We affirm.

For his first point of appeal, appellant contends that the trial court erred in refusing to instruct the jury on second-degree false imprisonment, a lesser-included offense of kidnaping. The State responds by arguing, first, that the issue is barred because appellant failed to abstract the instruction. We do not agree that the issue is barred. In the colloquy among the attorneys and the trial court, the second-degree false imprisonment instruction was quoted to the court. That colloquy has been abstracted and is adequate to allow our review of this issue. The proffered instruction on second-degree false imprisonment provides:

To sustain the charge of False Imprisonment in the Second Degree the State must prove the following things beyond a reasonable doubt that James Avery Slack, without consent and without lawful authority, knowingly restrained Johnny Allison so as to interfere substantially with his liberty.

A person is "restrained without consent" if he is restrained by physical force or threat or deception.

"Knowingly" - - A person acts knowingly with respect to the results of his conduct when he is aware that it is practically certain that his conduct will cause such results.

In determining whether to instruct the jury on this offense, the trial court had to determine if there was a rational basis for doing so in accordance with Arkansas Code Annotated section 5-1-110(c) (Repl. 1997), which provides:

(c) The court shall not be obligated to charge the jury with respect to an included offense unless there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.

(Emphasis added.)

In Nichols v. State, 69 Ark. App. 212, 215-16, 11 S.W.3d 19, 21 (2000), we explained:

It is not error for the court to refuse or fail to instruct on the lesser offense where the evidence clearly shows that the defendant is either guilty of the greater offense charged or innocent.

In Doby v. State, 290 Ark. 408, 720 S.W.2d 694 (1986), the court held that when a defendant asserts that he is entirely innocent of any crime, no rational basis exists to instruct the jury on a lesser-included offense, as the only issue for the jury is whether the defendant is guilty as charged. The supreme court stated:

Doby rested his entire defense on his credibility against that of the officers. So as a practical matter, it came down to whom should the jury believe. There would be no rational basis to find the officers lied in part in this case. Their testimony so sharply conflicted with Doby's that it would not be reasonable to expect a jury to pick and choose and come up with a finding of a lesser offense when to do so would require a finding that Doby was a liar and the officers liars in part. If Doby had admitted possessing the drugs, it might make sense to require the charge of the lesser offense. But his defense was that he was entirely innocent of any crime: he possessed nothing. Therefore, the jury only had one question to decide, whether he was guilty as charged.

(Citations omitted.)

Here, appellant's defense was similarly based upon his claim that he was entirely innocent of any crime connected with the alleged victim, John Allison. Appellant was serving an eighty-eight-year sentence on another conviction when he escaped from prison on May 18, 1997, and headed to Conway, Arkansas. His version of the events that happened thereafter differ in significant respects from that of Allison.

Allison testified that on the morning of June 5, 1997, he arrived at his office and began returning telephone calls; that his secretary told him a "Bill Lewis"was there to see him; and that he welcomed the man identified as "Bill Lewis" into his office, not realizing that he was actually James Slack, appellant. Allison said that he began to get an uneasy feeling in talking with the man, and that about that time appellant pulled a gun out fromunderneath his coat and said, "I'm going to blow your fucking brains out." According to Allison, appellant also threatened to kill the woman "sitting out front," and said he wanted money. Allison said that he tried to signal his secretary with his eyes as he and appellant left the building, and that he dropped his watch in the parking lot as he got in the car. Allison testified that he tried to establish a rapport with appellant as they drove around; that he (Allison) was very nervous; that they eventually drove to a store to get sandwiches because appellant was hungry; that appellant tucked his gun in his pants and they entered the store together and ordered and paid for the food; that they then continued to drive around; and that they then went back to the river where Slack kept "flipping" his gun. While at the river, appellant wanted to know how he (Allison) was going to get the money. Allison said that he told appellant he would call the bank and tell them he needed cash to buy some "repos"; and that he would have his secretary bring the money, $100,000, to a mobile home park. Allison said that he thought a SWAT team would be waiting for them there because of the "clues" he had left. When they arrived at the park, however, there were no police. He said that he then decided on a plan to wreck the car in which they were driving while they were waiting for the money to arrive. He said that he deliberately turned into the path of a dump truck and was knocked "cuckoo" for a little bit, losing track of appellant at that time.

Appellant testified to essentially the same sequence of events, but insisted that the knife he was carrying was concealed and that he did not have a firearm. He also denied making any threats of any kind toward Allison and denied asking him for any money. Rather, he stated that he simply wanted Allison's help in getting out of prison legitimately. That is, he claimed that he had been misled on his guilty plea in the earlier case and that all of his appeal avenues were exhausted; that Allison was powerful and had helped Bill Lewis get out of prison; and that he wanted Allison to do the same for him.

In short, appellant denied any of the conduct that would fit the definition of second-degree false imprisonment, eliminating any rational basis for instructing the jury on that offense. Consequently, we find no error in the trial court's refusal to give the instruction.

For his second point of appeal, appellant contends that "the trial court erred in allowing the prosecution to overreach its boundaries in Arkansas Rules of Evidence, Rule 609" with respect to the prosecution's cross-examination of appellant about the conviction for which he was serving an eighty-eight-year sentence when he escaped, the "Lieblong matter." We disagree.

Although appellant cites Arkansas Rule of Evidence 609, which deals with impeachment by evidence of conviction of crime, the true focus of his argument at trial and on appeal seems to be based upon Rule 403, which deals with balancing the probative value of evidence against the danger of unfair prejudice. Regardless, we find no error because appellant opened the door to the types of questions asked by the prosecution on cross-examination. Where a defendant, himself, initiates discussion of a certain subject, he opens the door to a line of questioning by the State. See, e.g., Cavin v. State, 313 Ark. 238, 855 S.W.2d 285 (1993); Williams v. State, 304 Ark. 218, 800 S.W.2d 713 (1990).

Here, on direct examination appellant claimed that he was serving an illegal sentence for a conviction in the "Lieblong matter"; described Mr. Alex Lieblong, who was JohnAllison's partner, as "a hater"; accused Lieblong of threatening to murder appellant's wife and children; and said that he would "not trust Lieblong anywhere." In countering those assertions, the prosecution questioned appellant about some of the details of the Lieblong matter to establish that appellant was convicted in 1993 of two counts of kidnaping, burglary, two counts of theft of property, terroristic threatening, and felony possession of a firearm; that the only way he was out of prison on June 5, 1997, was by escaping; and that the reason Mr. Lieblong did not like appellant was probably because "I broke into his house, tied him up, took his wife, asked for a million dollars, stole his Jeep, and threatened to blow his son's legs off." We find no abuse of the trial court's discretion in allowing this line of inquiry in light of appellant's assertions on direct examination.

Affirmed.

Bird and Vaught, JJ., agree.