Phillip E. Young v. State of Arkansas

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ar04-275

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

PHILLIP E. YOUNG,

APPELLANT

v.

STATE OF ARKANSAS,

APPELLEE

CACR04-275

APRIL 13, 2005

APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT,

(NO. CR01-269)

HON. TOM SMITHERMAN, JUDGE

AFFIRMED

Sam Bird, Judge

Appellant Phillip Young was charged with criminal attempt to commit first-degree murder after he brutally attacked his wife, Ratesa, on May 8, 2001, repeatedly stabbing her with knives and assaulting her with a fire poker.1 He pleaded not guilty to the charge and raised the defense of mental disease or defect. At the conclusion of a jury trial in the Garland County Circuit Court on November 7, 2003, he was found guilty and was sentenced to fifteen years in the Arkansas Department of Correction.

Appellant raises six points on appeal: (1) that the trial court improperly refused to allow Young and his expert witness to testify that he had been declared disabled [due to a mental disability] under federal social security laws; (2) that the trial court erred in allowing photographs and the victim's testimony regarding an incident that had occurred between the two of them in April 2002; (3) that the trial court erred and abused its discretion in allowing testimony by Officer William Watkins about a conversation he had with appellant a year after the events of the case; (4) that the trial court abused its discretion in allowing gruesome photographs of the victim; (5) that the trial court erred in allowing a statement by Officer

Dawn Roberson regarding a statement made by appellant when he was being booked into the detention center, after being arrested and receiving a Miranda warning; (6) that the trial court erred by commenting on appellant's ability to testify in his own defense, and that a mistrial should have been granted. Finding no error, we affirm the conviction.

1. Evidence that appellant received social security benefits

Prior to trial, the State filed a motion in limine asking that appellant be prohibited from introducing evidence that he was receiving social security disability payments due to a mental disability. The trial court found that the standard for determining social security disability entitlements was substantially different than the statutory description of lack of capacity to engage in criminal misconduct. Ruling that the evidence of social security determination and payments were not relevant to the issue of guilt or innocence, the trial court granted the State's motion not to allow the evidence.

We agree with the State that the circumstances of this case are the same as those considered in Bowden v. State, 328 Ark. 15, 940 S.W.2d 494 (1997), where the defendant asserted an affirmative defense of diminished capacity and sought to present evidence that he received disability benefits from the Social Security Administration based upon the agency's determination of his disability. The Bowden court affirmed the trial court's ruling that the evidence was not admissible, characterizing the issue as follows:

The mere evidence that Mr. Bowden was receiving the Social Security checks would not be relevant. Ark. R. Evid. 401. Even if it could be said to have been marginally relevant, it might well have been confusing to the jury, which might have concluded that a determination by the federal government that Mr. Bowden was entitled to assistance due to a mental disability amounted to proof that he lacked the capacity to commit the crime alleged. See Ark. R. Evid. 403.

Id. at 17, 940 S.W.2d at 495. Decisions on relevancy fall within the broad discretion of the trial court, and we do not reverse unless there has been an abuse of that discretion. Id.

Appellant argues on appeal that the trial court applied Bowden too broadly, preventing relevant testimony of what appellant currently did to make a living; further, he argues that the evidence was not likely to confuse the jury and was clearly relevant to his defense. We note that although the trial court ruled that evidence of the social security determination and payments was not relevant to the issue of guilt or innocence, the court observed that "the basis for why the defendant may be receiving social security benefits," such as depression, was relevant to his case.

We hold that the trial court's ruling, which still allowed for evidence of the underlying condition that led to the determination of disability, was not too broad. We also hold that admission of evidence of the social security determination and payments likely could have confused the jury's consideration of the statutory defense of mental disease or defect. Thus, we find that the trial court did not abuse its discretion in disallowing this testimony.

2. Evidence of the April 2001 incident

Over appellant's objection, his wife testified at trial that he had assaulted her in an incident that occurred on April 24 or 25, 2001, before the May 2001 incident leading to the charges against him. She testified that she was ironing her clothes for work when appellant snatched the iron and began hitting her; she fell while fighting back, and he started kicking her on the hip. She testified that she received a burn on her arm, a cut and bruises to her eye from broken eyeglasses, and injuries to her thigh and arm. Through her testimony three photographs that were taken the following day were admitted into evidence. She testified that they showed the bruises on her arm where appellant held her, the burn on her arm from the iron, and an injury to her thigh where he kicked her.

Appellant argues that the admission of evidence regarding the earlier assault violated the following provision of Ark. R. Evid. 404(b):

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

The admission or rejection of evidence under Rule 404(b) is left to the sound discretion of the trial court, and we will not reverse absent a showing of manifest abuse. Holt v. State, 85 Ark. App. 308, 151 S.W.3d 1 (2004). Evidence that is offered pursuant to Rule 404(b) must be independently relevant. Id. Evidence is independently relevant if it tends to prove a material point and is not introduced solely to prove that the defendant is a bad person. Id. However, even if independently relevant, evidence of other crimes may still be excluded if the probative value of that evidence is substantially outweighed by the danger of unfair prejudice to the defendant. Id. A trial court's ruling relating to the admission of evidence under Rule 404(b) is entitled to great weight and will not be reversed absent an abuse of discretion. McCoy v. State, 354 Ark. 322, 123 S.W.3d 901 (2003).

Appellant argues that the admission of evidence regarding the April 2001 incident was not independently relevant to the crime charged and was so inflammatory that any probative value was overwhelmingly outweighed by its prejudicial effect upon him. He argues that the testimony was "suspect" in that the incident itself was never reported to the police, the prosecution, the victim's divorce attorney, nor anyone else until the time for trial.

In Russey v. State, 322 Ark. 786, 912 S.W.2d 420 (1995), a defendant accused of his wife's first-degree murder claimed that he had accidentally shot her. The State countered with a detective's testimony that he had observed a loaded shotgun lying on a bed when he responded to a disturbance call at the Russeys' residence thirty-nine days prior to the shooting that led to the murder charge; the detective identified the shotgun used in the murder as the same one in the earlier incident. The Russey court, rejecting the defendant's argument that the evidence was more prejudicial than probative, held that the evidence was relevant to show a lack of mistake or accident on his part.

Here, the evidence about which appellant complains involved a violent encounter between him and his wife that occurred several weeks prior to the incident that led to the charge for which he was tried. The two incidents shared similar aspects of violence and blunt-force injury; thus, the evidence was highly probative in showing intent and the absence of mistake or accident. Furthermore, the three photographs served to corroborate the victim's testimony regarding the injuries that appellant inflicted upon her. See, e.g., Barnes v. State, 346 Ark. 91, 105, 55 S.W.3d 271, 281 (2001). We hold that the trial court did not abuse its discretion in admitting testimony and photographs regarding the prior incident.

3. Appellant's statement a year after the attack

William Watkins, an officer of the Hot Springs Police Department, testified at trial about a conversation that he had with appellant approximately a year after the incident that led to the charge and conviction in this case. Watkins testified that he was a church minister, that he and appellant were members of the same church, that they had social interaction through Chester and Constance Carrigan, and that appellant knew Watkins to be a police officer. Watkins testified that in June of 2003, he and his wife were at the Carrigans' home, as was appellant, who then was engaged to Ms. Carrigan's sister. Watkins further testified that appellant initiated a conversation with him, talking about how much he loved Ratesa and the things he did for her, and stating that she cheated on him and was openly seeing another man. Watkins testified that appellant commented that "no one would understand what happened or what he did unless they had gone through it." Watkins testified that appellant asked him what he would do if his wife cheated, that Watkins responded by asking appellant if he had not cheated on Ratesa, and that Watkins walked out of the room without waiting for an answer.

The trial court overruled appellant's objection to the admission of Watkins's testimony, finding as follows:

[T]he statement was a non-custodial statement made in the course of a general conversation and was not the result of any interrogation by Mr. Watkins and there is inadequate proof that this was intended in any way, shape or form to be a pastoral/parishioner type confessional that would fall under the privileged communications.

Appellant argues on appeal, as he did below, that Watkins's testimony was collateral and was not relevant to any issue at trial. He contends that admission of his statement constitutes reversible error because it was made to a law officer who was clearly offended and who knew of the charges pending. Appellant asserts that the evidence was offered only to further inflame the jury against him and to show that he had a conscious desire to hurt his wife. He points to testimony by neurologist Dr. Paul Tucker that appellant later was found to be suffering from an inoperable brain tumor, which most likely was linked to the aberrant conduct for which he was charged. Appellant notes that at the time of his conversation with Watkins, he had been treated for deep depression, he suffered from the brain lesion, he was divorced, and he had the opportunity to view what had occurred from his own hands and to discover what various witnesses claimed he had done and said.

When the purpose of evidence is to show motive, anything and everything that might have influenced the commission of the act may, as a rule, be shown. Lee v. State, 327 Ark.692, 702, 942 S.W.2d 231, 235 (1997). Here, the testimony indicated that Watkins was off duty and in a social setting when appellant made comments that were neither solicited nor initiated by Watkins. Additionally, appellant's statement appeared to be an explanation that he attacked his wife because she had been unfaithful to him; as such, the testimony could be considered by the jury as a possible motive for attacking her. Thus, we hold that the trial court did not abuse its discretion in admitting the statement made by appellant a year after the attack upon his wife.

4. Six photographs of the victim's injuries

Appellant contends that six gruesome photographs of the victim's body should have been excluded at trial. He argues that the photographs had no probative value, that their only purpose was to inflame the jury, and that they were cumulative to four physicians' graphic and detailed testimony of the injuries. He asserts that the photographs, which included one that showed the victim's eyeball hanging completely out of its socket and resting on her cheek, were so horrifying and graphic that exclusion was required.

In Barnes v. State, 346 Ark. 91, 55 S.W.3d 271 (2001), the supreme court discussed the admission of photographs:

The admission of photographs is a matter left to the sound discretion of the trial court. When photographs are helpful to explain testimony, they are ordinarily admissible. Further, the mere fact that a photograph is inflammatory or is cumulative is not, standing alone, sufficient reason to exclude it. Even the most gruesome photographs may be admissible if they assist the trier of fact in any of the following ways: by shedding light on some issue, by proving a necessary element of the case, by enabling a witness to testify more effectively, by corroborating testimony, or by enabling jurors to better understand the testimony. Other acceptable purposes are to show the condition of the victims' bodies, the probable type or location of the injuries, and the position in which the bodies were discovered. Absent an abuse of discretion, this court will not reverse a trial court for admitting photographs into evidence.

Id. at 104, 55 S.W.3d at 281 (citations omitted).

In the present case, the State notes that the evidence about which appellant complains actually consists of four photographs taken shortly after appellant's attack upon the victim and contemporaneous to his arrest, and of two computer-generated diagrams that depict multi-layer views of the injuries. The State asserts that the photographs, while graphically depicting the violent nature of the attack, clearly corroborated the testimony of law-enforcement and emergency medical personnel who first responded to the scene and, additionally, supported the State's case that appellant was guilty of attempted murder. The State also asserts that the computer-generated diagrams were helpful to the jury in that they were used by medical experts to describe the wounds and to illustrate the surgical procedures that were required to treat the various injuries. We agree, and we find no abuse of discretion in the ruling of the trial court that the photographs and diagrams were admissible.

5. Testimony regarding appellant's statement at the time of booking

Appellant submits that the trial court erred in allowing Deputy Dawn Roberson of the Garland County Sheriff's Department to testify as to certain statements she overheard appellant make when he was brought to the detention center for booking on May 8, 2001. Roberson testified that appellant, talking loudly to no one in particular and not in response to any questions, stated that "Ms. Young provoked him" and that he had done "what they were saying he did."

The trial court allowed this testimony on the basis that the statements were of a voluntary nature while he was in custody and that they were spontaneous. On appeal appellant argues that the admission of the overheard conversation, when taken in the context of appellant's defense that he was not guilty due to a brain tumor or lesion, was unfairly admissible under Ark. R. Evid. 403. Because this argument was not made to the trial court, we will not address it on appeal. Walker v. State, 353 Ark. 12, 19, 110 S.W.3d 752, 757 (2003). The fifth point on appeal is affirmed.

6. Motion for mistrial based upon a comment by the trial court

Appellant's final point on appeal is that the trial court improperly referred to the fact that he could testify in his own behalf at trial, and that a mistrial should have been granted because of this error. The State notes that appellant could have requested an admonition to the jury but did not do so.

This colloquy occurred during the testimony of Officer William Watkins:

Witness Watkins: The conversation turned to what happened on May 8, 2001, and he talked about how much he loved Ratesa and the things he's done for her and that there was nothing he wouldn't do for her, buy her clothes, a home, cars and things like that. And he went on to say nobody can say anything about what he's done because nobody would know what he would-

(From the Defense Table)

Appellant: He's lying on me! Why are you lying on me? Why is he lying on me? I can't stand it.

The Court: Mr. Young, you're gonna have to remain silent, Sir, okay?

Appellant: He's lying on me.

The Court: Okay, well you'll get a chance to testify if you so desire. However, you're gonna have to be quiet at this point, Sir.

(Emphasis ours.) Appellant approached the bench and moved for a mistrial "on the basis of the court's instruction in front of the jury" that appellant in fact could testify. The trial court denied the motion but allowed a recess so that appellant could regain his composure.

In Barnes v. State, supra, the supreme court set out the well-settled standard concerning a motion for mistrial:

[A] mistrial is a drastic remedy that should be ordered only when the fundamental fairness of the trial itself has been manifestly affected. King, 317 Ark. at 297. An admonition to the jury usually cures a prejudicial statement unless it is so patently inflammatory that justice could not be served by continuing the trial. Id. However, among the factors we consider on appeal is whether the defendant requested a cautionary instruction or admonition to the jury, and the failure of the defense to request an admonition may negate the mistrial motion. Bragg v. State, 328 Ark. 613, 946 S.W.2d 654 (1997) (citing Boyd v. State, 318 Ark. 799, 889 S.W.2d 20 (1994)). It is also true that the failure to give an admonition or cautionary instruction is not error where none is requested. Id. Here, although Barnes requested a mistrial, he did not request an admonition to the jury. Having failed to [do] so, he cannot now assert prejudice on this point.

Id. at 104, 55 S.W.3d at 280.

Similarly, in the present case appellant requested a mistrial but did not request an admonition to the jury; thus, he cannot now assert prejudice on this point. We hold that the trial court did not err in denying appellant's request for a mistrial.

Affirmed.

Baker and Roaf, JJ., agree.

1 The victim and appellant were divorced in 2002.