Martha Owen v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN MAUZY PITTMAN, JUDGE

DIVISION III

MARTHA OWEN

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR01-903

September 11, 2002

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FOURTH DIVISION

[NO. CR 2000-1260]

HON. JOHN W. LANGSTON,

JUDGE

AFFIRMED

The appellant in this criminal case was charged with committing first-degree murder by shooting Joe Hines. After a jury trial, she was convicted of second-degree murder, fined $15,000, and sentenced to twenty years' imprisonment. From that conviction, comes this appeal.

For reversal, appellant contends that the trial court erred in denying her motion for a directed verdict because the evidence was insufficient to support her conviction of second-degree murder, that the trial court erred in denying her motion to suppress the statement she made to police officers after the shooting, and that the trial court erred in denying her motion for mistrial on the grounds that the prosecution had prejudiced the jury against her by asking

questions relating to the jurors' views on voluntary intoxication as a defense to criminal acts. We affirm.

We first address appellant's argument that the trial court erred in denying her motion for a directed verdict of acquittal on the charge of first-degree murder. Our standard of review is well-settled:

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Consequently, we must first address this issue because the Double Jeopardy Clause precludes a second trial when a judgment of conviction is reversed for insufficient evidence. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984) (citing Burks v. United States, 437 U.S. 1 (1978)). We disregard any alleged trial errors in determining the sufficiency question, because to do otherwise would result in avoidance of the sufficiency argument by remanding for retrial on other grounds. Rose v. State, 72 Ark. App. 175, 35 S.W.3d 365 (2000).

When the sufficiency of the evidence is challenged on appeal from a criminal conviction, we view the evidence in the light most favorable to the State, considering only the evidence that tends to support the verdict, and will affirm if there is any substantial evidence to support the finding of guilt. Hardrick v. State, 47 Ark. App. 105, 885 S.W.2d 910 (1994). Substantial evidence is evidence of sufficient force and character to compel a conclusion one way or the other, inducing the mind to pass beyond mere suspicion or conjecture. Id.

Coon v. State, 76 Ark. App. 250, 253, 65 S.W.3d 889, 890-91 (2001).

With regard to sufficiency, the only specific argument raised was that a directed verdict should be granted because appellant established the defense of justification. We could reverse on this point only if we could say that justification was established as a matter of law. Clearly, it was not.

The defense of justification is a matter of intent and a question of fact for the jury, and the State has the burden of negating the defense of justification once it is put in issue. Humphrey v. State, 332 Ark. 398, 966 S.W.2d 213 (1998). One who claims self-defense must show not only that the person killed was the aggressor, but that the accused used all reasonable means within his power and consistent with his safety to avoid the killing. Id. In the present case, appellant and other eyewitnesses testified that appellant was addicted to crack cocaine; that the victim, with whom appellant resided, habitually and frequently supplied her with crack cocaine; that the victim refused to provide her with crack cocaine shortly before he was murdered; and that appellant shot the victim as he entered a doorway. Although appellant asserted that she shot appellant because she was afraid of him, appellant was shot from a distance of greater than three feet. Although other witnesses were present at the shooting and testified at trial, appellant's testimony of being physically threatened or abused by the victim was uncorroborated, she bore no significant injuries, and the jury could properly have inferred that she shot the victim because she was angry with him for refusing to give her the crack cocaine she had asked for prior to the shooting. The issue is one of credibility, and appellant's second-degree murder conviction is unquestionably supported by substantial evidence.

Appellant next argues that the trial court erred in denying her motion to suppress the statement she made to police officers. This argument relates to appellant's capacity to make a knowing and intelligent waiver of her right to remain silent when she made her inculpatory statement to the police after the shooting.

When we review a trial court's ruling on a motion to suppress a custodial statement, we make an independent determination of the voluntariness of that statement based upon the totality of the circumstances, including the age, education, and intelligence of the accused; the lack of advice as to her constitutional rights; the length of the detention; the repeated and prolonged nature of the questioning; the use of mental or physical punishment; and statements made by the interrogating officers and the vulnerability of the defendant. Diemer v. State, 340 Ark. 223, 9 S.W.3d 490 (2000). We will reverse a trial court's ruling on a motion to suppress only if the ruling was clearly erroneous. Steggall v. State, 340 Ark. 184, 8 S.W.3d 538 (2000).

In the present case, the record shows that appellant is a literate adult who completed ten years of formal schooling and holds a GED. She was first encountered by a police officer as a result of a suspicious person call at 7:45 p.m., and she gave her recorded statement at approximately 9:00 p.m. Police officers testified that appellant, though obviously upset and to some extent under the influence of cocaine, calmed down appreciably after being spoken to by a female police officer (who was then unaware that there had been a murder), and that by the time appellant made her statement she had been advised of her Miranda rights. She appeared to understand her rights, to know exactly what she was saying, and to understand her situation and the rights that she was waiving. Furthermore, appellant testified at trial that she required a dose of crack cocaine every fifteen minutes or so to maintain her "high," and she did not give her statement until approximately two hours after her last dose. In anyevent, a confession given by a person who has recently used crack cocaine is not ipso facto involuntary:

Detective Connell had been informed that appellant had been smoking crack on the evening in question, and he testified that he observed no signs of intoxication and that appellant did not appear to be incapable of giving a statement due to the influence of drugs or alcohol. However, even if she had been intoxicated, that issue would be a question of fact regarding whether she lacked capacity to waive her rights intelligently, and would be a question for the trial court to resolve. Standridge v. State, 329 Ark. 473, 951 S.W.2d 299 (1997). Also, evidence of intoxication reflects on the credibility of the statement, not its admissibility. Id.

Smith v. State, 334 Ark. 190, 205, 974 S.W.2d 427, 434 (1998). Despite the evidence that appellant was under the influence of crack cocaine when she spoke to the police, when we consider the totality of the circumstances surrounding appellant's statement, we cannot say that the trial court erred in denying her motion to suppress.

We note that, in any event, any error in denying the motion to suppress would be harmless because appellant testified at trial and repeated virtually every incriminating aspect contained in the statement she sought to have suppressed. Under similar circumstances, our supreme court has held that such a pretrial statement was harmless beyond a reasonable doubt in view of the fact that an appellant testified at his trial and repeated every material aspect of his pretrial statement. Isbell v. State, 326 Ark. 17, 22, 931 S.W.2d 74, 77 (1996).

Finally, appellant contends that the trial court should have granted a mistrial because the prosecution asked questions in voir dire regarding the jurors' attitudes regarding voluntary intoxication as a defense to criminal acts. Apparently, appellant argues that,because she did not plead voluntary intoxication or assert that such a condition would constitute a defense to her actions, asking questions concerning voluntary intoxication prejudiced the jurors against her. We do not agree. There was uncontroverted evidence that appellant was in fact intoxicated or impaired virtually all of the time. Appellant herself testified that she was a crack addict who used the substance every fifteen minutes. There is no question, then, of the jurors being wrongly led to believe that appellant habitually abused alcohol or narcotics - by her own admission, she did habitually abuse crack cocaine almost constantly. Under these circumstances, we see no possible harm that could come from the prosecution asking questions about the jurors' beliefs regarding the responsibility of intoxicated persons for their actions.

Affirmed.

Roaf and Griffen, JJ., agree.