Jordan v. State

Alvis A. JORDAN v. STATE of Arkansas

CR 95-942                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered March 11, 1996


1.   Appeal & error -- argument cannot be raised for first time on
     appeal -- argument waived if not argued in original brief. --
     Where appellant admitted that he was not convicted of
     attempted capital murder and attempted to change his argument
     to one alleging error for failure to grant a directed verdict
     on the charge of first-degree murder, the attempt to change
     arguments was ineffective; if counsel omits to argue an
     assignment of error in his original brief, such assignment
     must be treated as waived and abandoned by him unless
     permission to amend his brief is asked and granted by the
     court for good cause before the case is submitted.

2.   Jury -- jury may convict on some counts and not on others --
     defendant may not attack his conviction on one count because
     it is inconsistent with his acquittal on another count. --
     Appellant's argument that the conviction for attempted first-
     degree murder of Daniel Williams should be reversed because it
     was inconsistent with the conviction of only second-degree
     murder for killing Broderick Shavis was without merit; a jury
     may convict on some counts but not on others, and may convict
     in different degrees on some counts, because of compassion or
     compromise, and not solely because there was insufficient
     evidence of guilt; a defendant may not attack his conviction
     on one count because it is inconsistent with an acquittal on
     another count; res judicata concepts are not applicable to
     inconsistent verdicts; the jury is free to exercise its
     historic power of lenity if it believes that a conviction on
     one count would provide sufficient punishment.

3.   Appeal & error -- argument procedurally barred -- defendant
     was required to address lesser-included offenses in his motion
     for directed verdict to preserve challenge to sufficiency of
     evidence necessary to support conviction for lesser-included
     offense. -- Where appellant's motion at the close of the
     State's case addressed only capital murder, and did not
     address second-degree murder either by name or by the
     culpability required for the crime, appellant's failure to
     question the sufficiency of the evidence for lesser-included
     offenses, either by name or by apprising the trial court of
     the elements of the lesser-included offenses, at the close of
     the State's case constituted a waiver of the argument; a
     defendant is required to address the lesser-included offenses
     in his motion for a directed verdict to preserve a challenge
     to the sufficiency of the evidence necessary to support a
     conviction for a lesser-included offense.

4.   Appeal & error -- no ruling on motion obtained from trial
     court -- point not preserved for appellate review. -- Where,
     before trial, appellant filed a motion to quash the jury
     panel, but he did not bring the motion to the attention of the
     trial court, and he did not obtain a ruling on the motion, his
     argument was not preserved for appellate review; in order to
     preserve a point for appellate review, a party must obtain a
     ruling from the trial court. 

5.   Trial -- trial court has wide latitude in controlling
     arguments of counsel -- its rulings will not be overturned
     absent clear abuse. -- The trial court has a wide latitude of
     discretion in controlling the arguments of counsel, and its
     rulings in this regard are not overturned in the absence of
     clear abuse. 

6.   Trial -- appellant merely objected to appellee's closing
     argument without requesting limiting instruction or mistrial -
     - trial occur did not abuse its discretion. -- Where appellant
     objected to the prosecutor's closing argument, but did not ask
     for a limiting instruction or a mistrial and the the trial
     court nonetheless gave a limiting instruction that closing
     arguments by counsel were not to be considered as evidence,
     appellant did not ask any relief that was denied by the trial
     court, and there was no abuse of discretion in the rulings by
     the trial court.
   
7.   Evidence -- rebuttal evidence presented during sentencing
     phase of trial -- trial court had discretion to allow such
     evidence. -- A trial court has discretion to allow rebuttal
     evidence during the sentencing phase of the trial.  

8.   Witnesses -- one witness's identification objected to, but
     other witnesses gave similar evidence -- objection without
     merit. -- Appellant's argument that the trial court erred in
     allowing one witness to identify him in court was devoid of
     merit where the day after the crimes, the witness accurately
     described appellant and his clothing, described the co-
     defendant, and accurately picked appellant out of a photo
     line-up and at trial she testified that she observed appellant
     at the crime scene at close range under a street light and was
     certain of his identity, and identified him as the person who
     shot and killed Shavis; additionally, a police officer
     testified without objection that, the day after the crime, the
     witness identified appellant from a photo line-up as the one
     who shot Shavis; yet another witness testified that he had
     known appellant all of his life, that he saw appellant shoot
     Shavis, and he also identified appellant in the courtroom; the
     co-defendant testified that he was at the scene with appellant
     and appellant shot Shavis; appellant took the stand and
     testified that he was at the crime scene and fired a pistol
     when Shavis was killed; identification simply was not an
     issue; even if in some manner the trial court had erred in
     allowing the witness's in-court identification of appellant,
     it would be harmless in light of the other identification
     testimony, especially since appellant testified in court that
     he was at the crime scene with a pistol.


     Appeal from Ashley Circuit Court; Don E. Glover, Judge;
affirmed.
     Lee R. Watson, for appellant.
     Winston Bryant, Att'y Gen., by:  David R. Raupp, Asst. Att'y
Gen., for appellee.

     Robert H. Dudley, Justice. 
     March 11, 1996   *ADVREP2*





ALVIS A. JORDAN,
                    APPELLANT,

V.

STATE OF ARKANSAS,
                    APPELLEE.



CR95-942


APPEAL FROM THE ASHLEY COUNTY
CIRCUIT COURT,
NO. CR94-48-1A,
HON. DON E. GLOVER, JUDGE,




AFFIRMED.



                   Robert H. Dudley, Justice.


     Appellant Alvis Jordan and co-defendant Cedric Harris were
charged with capital murder for shooting and killing Broderick
Shavis and with attempted capital murder for shooting and injuring 
Daniel Williams.  Appellant and Harris were tried separately. 
Appellant was found guilty of second-degree murder for killing
Broderick Shavis and guilty of attempted first-degree murder for
shooting Daniel Williams.  There was substantial evidence that
appellant was guilty of both crimes.  We affirm both judgments of
conviction.
     In his opening brief, appellant contends that the trial court
erred in denying his motion for a directed verdict on the charge of
attempted capital murder of Daniel Williams.  He argues the
required proof of his culpable mental state for attempted capital
murder was lacking.  We need not address the point in any detail. 
As appellee's brief points out, the ruling could not have been
prejudicial to appellant since he was not convicted of attempted
capital murder, but rather was convicted only of a lesser-included
offense, attempted first-degree murder.  See Hickson v. State, 312
Ark. 171, 847 S.W.2d 691 (1993).  In his reply brief, appellant
admits that he was not convicted of attempted capital murder and
attempts to change his argument to one alleging error for failure
to grant a directed verdict on the charge of first-degree murder. 
The attempt to change arguments is ineffective.  We have long held
that an argument cannot be raised for the first time in the reply
brief.  Partin v. Bar, 320 Ark. 37, 894 S.W.2d 906 (1995).  As far
back as 1919, we wrote: "If counsel should omit to argue any
assignment of error in his original brief, such assignment must be
treated as waived and abandoned by him unless permission to amend
his brief is asked and granted by the court for good cause before
the case is submitted."  Commonwealth Pub. Serv. Co. v. Lindsay,
139 Ark. 283, 293, 214 S.W. 9, 13 (1919).   
     As a sub-point appellant argues that the conviction for
attempted first-degree murder of Daniel Williams should be reversed
because it is inconsistent with the conviction of only second-
degree murder for killing Broderick Shavis.  While both Shavis and
Williams were shot during the one episode, the argument is without
merit.  A jury may convict on some counts but not on others, and
may convict in different degrees on some counts, because of
compassion or compromise, and not solely because there was
insufficient evidence of guilt.  "Indeed, if the rule were
otherwise, the State would be entitled to have the jury warned that
an acquittal on some counts might undermine a guilty verdict on
others -- almost the opposite of the standard instructions, which
is obviously beneficial to criminal defendants."  McVay v. State,
312 Ark. 73, 77, 847 S.W.2d 28, 30 (1993) (quoting United States v.
Greene, 497 F.2d 1968 (7th Cir. 1974)).  The law is clear in that
"a defendant may not attack his conviction on one count because it
is inconsistent with an acquittal on another count.  Res judicata
concepts are not applicable to inconsistent verdicts; the jury is
free to exercise its historic power of lenity if it believes that
a conviction on one count would provide sufficient punishment." 
Id. (quoting United States v. Romano, 879 F.2d 1056 (2d Cir.
1989)). 
     Appellant next contends that the trial court erred in denying
his motion for a directed verdict for the second-degree murder of
Broderick Shavis.  He moved for a directed verdict on the capital
murder charge for killing Broderick Shavis at the close of the
State's case on the ground that there was "insufficient evidence
from which reasonable people could agree" that there was, among
other things, "premeditation or deliberation."  The trial court
denied the motion.  Appellant then put on his case.  At the close
of his case, appellant moved for a directed verdict on capital
murder and attempted capital murder and all lesser-included
offenses on the ground that he had no intent to cause the death of
either victim.  The trial court denied the motion.  
     The argument is procedurally barred.  Appellant's motion at
the close of the State's case addressed only capital murder.
Counsel stated that he "moved for a directed verdict on the charge
of capital murder" and "that there was no intent to commit the
death of the individuals by either party when they went down there. 
There was no premeditation or deliberation."  The motion did not
address second-degree murder either by name or by the culpability
required for the crime. (Premeditation and deliberation are not 
required for second-degree murder.  Instead, it requires proof that
the actor engaged in conduct with the conscious object to produce
death.  See Ark. Code Ann.  5-10-103 (a)(1) (Repl. 1993) and
Original Commentary.)  We have held that a defendant is required to
address the lesser-included offenses in his motion for a directed
verdict to preserve a challenge to the sufficiency of the evidence
necessary to support a conviction for a lesser-included offense.
Walker v. State, 318 Ark. 107, 883 S.W.2d 831 (1994).  Appellant's
failure to question the sufficiency of the evidence for lesser-
included offenses, either by name or by apprising the trial court
of the elements of the lesser-included offenses, at the close of
the State's case constituted a waiver of the argument.
     Appellant's third point of appeal is also procedurally barred. 
Before trial, appellant filed a motion to quash the jury panel.  He
did not bring the motion to the attention of the trial court, and
he did not obtain a ruling on the motion.  In fact, to the
contrary, the trial court commenced the trial by asking both the
State and appellant, "Is this a good jury?" and both responded
affirmatively.  In order to preserve a point for appellate review,
a party must obtain a ruling from the trial court.  Terry v. State,
309 Ark. 64, 826 S.W.2d 817 (1992). 
     Appellant's next point of appeal concerns the State's closing
argument.  The evidence tended to show that Broderick Shavis was
struck by both a .25 caliber bullet and a .38 caliber bullet. 
Appellant contends the trial court erred in allowing the prosecutor
to draw an improper inference from the evidence by stating "you
can't put a five-sixteenths bullet through that one-eighth, I mean
one eighth hole."   He additionally argues that the prosecutor was
erroneously allowed to argue that victim Daniel Williams' beeper
could have been used in his job with a temporary agency.  Appellant
objected to the statements, but did not seek any relief other than
a ruling on the objection.
     The case of Littlepage v. State, 314 Ark. 361, 863 S.W.2d 276
(1993) is directly in point.  There, the defendant objected to
arguments made by the prosecutor, but did not ask the trial court
for any relief other than a ruling on his objection.  We noted that
the trial court gave a limiting instruction that counsel's remarks
were not evidence and should be disregarded if not supported by
evidence.  The trial court explained to the jurors that attorneys
are given leeway in closing arguments and can make every argument
that is plausible from the evidence.  We said, "The trial court has
a wide latitude of discretion in controlling the arguments of
counsel, and its rulings in this regard are not overturned in the
absence of clear abuse."  Id. at 371, 863 S.W.2d  at 281 (citation
omitted).
     In the present case, appellant objected, but, just as in
Littlepage v. State, did not ask for a limiting instruction or a
mistrial.  After the prosecutor's argument about the size of the
wounds the trial court gave a limiting instruction that closing
arguments by counsel were not to be considered as evidence.  The
trial court did not give another limiting instruction after the
argument about the beeper, but rather instructed the prosecutor to
proceed, and the prosecutor did so without further mention of the
beeper.  Appellant did not ask any relief that was denied by the
trial court, and there was no abuse of discretion in the rulings by
the trial court.   
     Appellant next argues that the trial court erred in allowing
the State to present rebuttal evidence during the sentencing phase
of the trial.  We addressed this issue in Caldwell v. State, 322
Ark. 543, 910 S.W.2d 667 (1995), and held that a trial court has
discretion to allow rebuttal evidence during the sentencing phase
of the trial.  
     Appellant's final point of appeal is that the trial court
erred in allowing Kim Walker to identify him in court.  The 
argument is devoid of merit.  The day after the crimes, Kim Walker
accurately described appellant and his clothing, described the co-
defendant, and accurately picked appellant out of a photo line-up. 
At trial she testified that she observed appellant at the crime
scene at close range under a street light and was certain of his
identity, and identified him as the person who shot and killed
Shavis.  David Oliver, a police officer, testified without
objection that, the day after the crime, Kim Walker identified
appellant from a photo line-up as the one who shot Shavis.  Wayne
Sherrer testified that he has known appellant all of his life and
that he saw appellant shoot Shavis.  He also identified appellant
in the courtroom.  Cedric Harris, the co-defendant, testified that
he was at the scene with appellant and appellant shot Shavis. 
Appellant took the stand and testified that he was at the crime
scene and fired a pistol when Shavis was killed.  He contended that
he merely shot into the air while Harris shot and killed Shavis.  
     Identification simply was not an issue.  Even if in some
manner the trial court had erred in allowing Walker's in-court
identification of appellant, it would be harmless in light of the
other identification testimony, especially since appellant
testified in court that he was at the crime scene with a pistol.
     Affirmed.