Bernard Marks v. State of Arkansas
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SUPREME COURT OF ARKANSAS
No.
CR08-472
Opinion Delivered December 19, 2008
BERNARD MARKS,
APPELLANT,
VS.
STATE OF ARKANSAS,
APPELLEE,
APPEAL FROM THE JEFFERSON
COUNTY CIRCUIT COURT, NO. CR2004-0682-1, HON. BERLIN C. JONES,
JUDGE,
AFFIRMED.
ROBERT L. BROWN, Associate Justice
1.
EVIDENCE — TESTIMONY MUST BE BASED ON PERSONAL KNOWLEDGE — CIRCUIT JUDGE DID
NOT ERR IN PERMITTING TESTIMONY WHERE WITNESS CLEARLY HAD PERSONAL KNOWLEDGE
OF THE EVENTS TO WHICH HE TESTIFIED .
— Under Ark. R. Evid. 602, a witness may not
testify to a matter unless evidence is introduced sufficient to support a finding that he has
personal knowledge of the matter; in this case, it was undisputed that the witness was present
at the scene of the crime; he testified that he witnessed appellant beating the victim, that he
heard appellant state that he was going to run over the victim, and that he saw appellant get
into the car and begin driving; finally, immediately after running from the scene, he heard
the sound “bl-bloom, bl-bloom, bl-bloom”; the witness, without question, had personal
knowledge of the events to which he testified; the circuit judge did not err in permitting the
testimony under Rule 602.
2.
EVIDENCE —
— THREE -PRONG TEST FOR DETERMINING
ADMISSIBILITY UNDER RULE 701. — In Carton v. Missouri Pacific Railroad Co., the supreme
court set out a three-prong test for determining admissibility under Ark. R. Evid. 701; first,
the testimony must pass the “personal knowledge” test of Rule 602; second, it must be
rationally based, that is, the opinion must be one that a normal person would form on the
basis of the facts observed; finally, the opinion must meet the “helpful” test.
3.
EVIDENCE — LAY OPINION TESTIMONY — WITNESS’S TESTIMONY SATISFIED REQUIREMENT
THAT TESTIMONY BE BASED ON PERSONAL KNOWLEDGE . — For lay opinion evidence to
satisfy the first prong of Carton, it must pass the “personal knowledge” test of Rule 602;
here, appellant’s testimony concerning appellant’s driving over the victim was based on his
personal knowledge of appellant’s actions at the scene of the crime; this easily satisfies the
first prong of the Rule 701 analysis.
LAY OPINION TESTIMONY
4.
EVIDENCE — LAY OPINION TESTIMONY — OPINION
THAT THE BUMPING SOUND THAT THE
WITNESS HEARD WAS APPELLANT DRIVING A CAR OVER THE VICTIM ’S BODY WAS FORMED ON
THE BASIS OF THE FACTS HE OBSERVED AT THE SCENE OF THE CRIME AND HIS PERCEPTION OF
testimony to satisfy the second Carton
prong, it must rationally based, that is, the opinion must be one that a normal person would
form on the basis of the facts observed; here, the witness’s opinion that the bumping sound
he heard was appellant driving a car over the victim’s body was formed on the basis of the
facts that the witness observed at the scene of the crime and his perception of what happened
to the victim; it was not necessary that the witness actually heard previously the exact sound
a car makes driving over a human body; rather, it is sufficient that his opinion and inference
were ones that a normal person would form on the basis of the facts he observed and what
he heard.
WHAT HAPPENED TO THE VICTIM . — For lay opinion
5.
EVIDENCE — LAY OPINION TESTIMONY — WITNESS’S PERCEPTION WAS NOT LIMITED TO WHAT
WAS ACTUALLY SEEN . — Rule 701(a) speaks in terms of “perception” of the witness;
“perception” is not limited to what is actually seen; “perception” is defined as “[a]n
observation, awareness or realization, usually based on physical sensation or experience;
appreciation or cognition”; here, the witness saw the fight, heard the threat, saw appellant get
into the car and start driving toward the victim, and then heard the sound of the car running
over the body; based on this, he could certainly form his opinion based on perception that
appellant, in fact, ran over the victim.
6.
EVIDENCE — LAY OPINION TESTIMONY — WITNESS’S OPINION TESTIMONY WAS HELPFUL TO
A DETERMINATION OF A FACT IN ISSUE — NO ABUSE OF DISCRETION TO ALLOW IT INTO
EVIDENCE . — For lay opinion testimony to satisfy the third prong of Carton, it must be
helpful to a determination of a fact in issue; here, the witness’s testimony was helpful to a
fact in issue, namely whether appellant was the driver of the car that ran over the victim’s
body; because the opinion testimony satisfies the three-prong analysis for determining
admissibility under Rule 701, there was no abuse of discretion by the circuit judge in
allowing it into evidence.
7.
APPEAL &
ERROR
—
EXCEPTION TO CONTEMPORANEOUS-OBJECTION REQUIREMENT
—
DEFENSE COUNSEL’S STATEMENTS WERE NOT SO FLAGRANTLY INCORRECT AS TO WARRANT
WICKS EXCEPTION . — It is a fundamental rule that an argument for
reversal will not be considered absent an appropriate objection in the trial court; one of the
recognized exceptions set forth in Wicks v. State is when the serious nature of an error
obligates the trial judge to intervene, without objection, either by admonition to the jury or
the declaration of a mistrial; here, defense counsel started to say that he had reserved his
opening statement until the burden shifted, but then quickly corrected himself to say until the
prosecution rested; he then said that “the responsibility from this point on is for the defendant
to move forward”; nothing in these statements impressed upon the jury the idea that the
defendant had the burden of proving his innocence; rather, the statements referred to the
APPLICATION OF THIRD
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defendant’s ability to proceed with the presentation of defense evidence, if the defendant so
desired; in addition, the correct burden of proof was stated to the jury in the closing argument
of counsel for both parties and in the circuit judge’s final instructions; accordingly, defense
counsel’s statements were not so flagrantly incorrect as to compel a finding that the circuit
judge’s failure to intervene, sua sponte, and instruct the jury as to the law was a manifest
abuse of discretion.
Robinson & Associates, P.A., by: Luke Zakrewski, for appellant.
Dustin McDaniel, Att’y Gen., by: Vada Berger, Ass’t Att’y Gen., for appellee.
Appellant Bernard Marks appeals from his conviction for capital murder and his
sentence to life imprisonment without parole. He asserts two points on appeal. We affirm.
Testimony at trial revealed that on the morning of July 5, 2004, Marks, Chris
Claiborne, and Ricky Howard left the Three Gables nightclub together. Howard was driving
the three men in a car he had borrowed. The three men arrived outside of the residence of
Alvin Benjamin to find Michael Walker, the ultimate victim, standing in the front yard. The
three men got out of the vehicle, and Marks and Claiborne began to beat Walker.
Immediately after that, while Walker was lying unconscious in the road, Marks got in the
borrowed vehicle and proceeded to run over Walker. In the early morning hours of July 5,
2004, Walker was taken to the emergency room of the Jefferson Regional Medical Center
in Pine Bluff. Walker was severely injured and subsequently died of his injuries. Marks was
later arrested and charged with capital murder.
At Marks’s trial, Ricky Howard was called as a witness for the State. On direct
examination by the prosecutor, he testified that he saw Marks pushing, hitting, and kicking
Walker, and that Marks stated that he was going to run Walker over. Howard testified that
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he then observed Marks get into the car and start to move it and that the car ran over Walker.
On cross-examination, Howard testified that he fled the scene when Marks got in the car.
During the prosecutor’s redirect examination, Howard testified that he did not actually see
the car run over Walker, but he heard a noise – “bl-bloom, bl-bloom, bl-bloom.” When the
prosecutor asked Howard what the noise was, defense counsel objected: “He said he heard
it. He didn’t say he saw it.” The judge overruled the objection and said, “If he knows, he
can answer it. If not, he can respond accordingly.” The prosecutor questioned, “What–what
happened to a body,” and Howard stated “Ran over.” At the conclusion of the trial, Marks
was convicted of capital murder and sentenced accordingly.
For his first point on appeal, Marks contends that the circuit judge erred by overruling
his objection to Howard’s testimony that the sound he heard was Marks driving over Walker.
Marks claims that Howard lacked the requisite personal knowledge to testify under Arkansas
Rule of Evidence 602. He claims that “the record lacks any basis for a conclusion that
Howard had sufficient knowledge to distinguish the sound of a vehicle running over a human
body as opposed to some other similar object.”
The State responds that Marks has
mischaracterized Rule 701 under the Arkansas Rules of Evidence as a Rule 602 objection.
The State adds that Marks’s true argument on appeal is that Howard was not qualified as a
lay witness under Rule 701 to make the inference that the sound he heard was that of a car
driving over a human body. The State claims that the circuit judge did not abuse his
discretion because Howard’s opinion testimony was rationally based on his perception and
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the surrounding circumstances and was helpful to a clear understanding of the determination
of whether Marks was driving the car that ran over Walker.1 Additionally, the State argues
that Marks cannot show prejudice because the testimony of other witnesses established that
Marks ran over Walker with the car.
Trial courts have broad discretion in deciding evidentiary issues, and their decisions
are not reversed absent an abuse of discretion. Smith v. State, 351 Ark. 468, 95 S.W.3d 801
(2003). This court will not reverse an evidentiary decision by the trial court in the absence
of prejudice. McFerrin v. State, 344 Ark. 671, 42 S.W.3d 529 (2001).
As already noted, Marks first contends that Howard’s testimony was inadmissible
under Arkansas Rule of Evidence 602. Rule 602 provides, in pertinent part, as follows:
A witness may not testify to a matter unless evidence is introduced sufficient
to support a finding that he has personal knowledge of the matter. Evidence
to prove personal knowledge may, but need not, consist of the testimony of the
witness himself.
Ark. R. Evid. 602.
In the case before us, sufficient evidence was introduced at trial to support a finding
that Howard had personal knowledge of the matter to which he testified. It was undisputed
that Howard was present at the scene of the crime. He testified that he witnessed Marks
beating Walker, that he heard Marks state that he was going to run over Walker, and that he
saw Marks get into the car and begin driving. Finally, immediately after running from the
1
The fact that Walker had been run over with a car was undisputed at trial.
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scene, he heard the sound – “bl-bloom, bl-bloom, bl-bloom.” Howard, without question, had
personal knowledge of the events to which he testified. The circuit judge did not err in
permitting the testimony under Rule 602.
Rule 701, which the State maintains is the appropriate rule for our analysis, reads:
If the witness is not testifying as an expert, his testimony in the form
of opinions or inferences is limited to those opinions or inferences which are
(1) Rationally based on the perception of the witness; and
(2) Helpful to a clear understanding of his testimony or the
determination of a fact in issue.
Ark. R. Evid. 701.
We agree with the State that Rule 701 governs this case. In Carton v. Missouri
Pacific Railroad Co., 303 Ark. 568, 798 S.W.2d 674 (1990), we set out a three-prong test
for determining admissibility under Rule 701. First, the testimony must pass the “personal
knowledge” test of Rule 602. Id. Second, it must be rationally based, that is, the opinion
must be one that a normal person would form on the basis of the facts observed. Id. Finally,
the opinion must meet the “helpful” test. Id.
The facts in this case are these:
•
Marks, Howard, and Claiborne left a club together on the morning of
July 5, 2005. The three men went to the home of Alvin Benjamin.
•
Upon arriving at Benjamin’s house, Howard observed Marks and
Claiborne assaulting the victim, Michael Walker.
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•
Howard then heard Marks state that he was going to run Walker over,
and saw Marks get into a car and begin driving.
•
When Marks started to move the car, Howard turned and ran from the
scene. While running away, Howard heard the sound – “bl-bloom, blbloom, bl-bloom.”
•
At trial, Howard testified that the “bl-bloom, bl-bloom” sound was the
sound of Marks running over Walker’s body.
Marks asserts that the trial judge abused his discretion in allowing Howard to testify
that the tell-tale bumping sound was the sound of Marks driving over Walker because
Howard did not actually see what caused the sound. He contends that Howard lacked
sufficient knowledge to distinguish the sound of a vehicle running over a human body as
opposed to another object because there was no evidence that Howard had seen or heard a
vehicle run over a human body on a prior occasion.
Marks is incorrect. For the first prong, under the Carton test, Howard’s testimony
concerning Marks driving over Walker was based on his personal knowledge of Marks’s
actions at the scene of the crime as already noted in the opinion. See Ark. R. Evid. 602
(“Evidence to prove personal knowledge may, but need not, consist of the testimony of the
witness himself.”). This easily satisfies the first prong of the Rule 701 analysis.
Turning to the second prong, under Carton, Howard’s opinion that the bumping
sound he heard was Marks driving a car over Walker’s body was formed on the basis of the
facts Howard observed at the scene of the crime and his perception of what happened to
Walker. It is not necessary that Howard actually heard previously the exact sound a car
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makes driving over a human body. Rather, it is sufficient that his opinion and inference
were ones that a normal person would form on the basis of the facts he observed and what
he heard. In Felty v. State, 306 Ark. 634, 816 S.W.2d 872 (1991), we stated that opinion
testimony by lay witnesses is admissible “in observation of everyday occurrences, or matters
within the common experience of most persons.” The common experience of most persons
when coupled with the facts Howard observed and what he heard at the scene of the crime
reasonably leads to the inference Howard made in regard to the source of the sound.
Rule 701(1) speaks in terms of “perception” of the witness. “Perception” is not
limited to what is actually seen, as Marks would have it. Rather, “perception” is defined in
Black’s Law Dictionary as “[a]n observation, awareness or realization, usually based on
physical sensation or experience; appreciation or cognition.” Black’s Law Dictionary 1172
(8th ed. 2004) (emphasis added). Here, Howard saw the fight, heard the threat, saw Marks
get into the car and start driving toward Walker, and then heard the sound of the car running
over the body. Based on this, he could certainly form his opinion based on perception that
Marks, in fact, ran over Walker.
Finally, Howard’s opinion testimony was helpful to a determination of a fact in issue,
which is the third prong. That fact was whether Marks was the driver of the car that ran over
Walker’s body. Because Howard’s opinion testimony satisfies the three-prong analysis for
determining admissibility under Rule 701, there was no abuse of discretion by the circuit
judge in allowing it into evidence.
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Marks next urges that the circuit judge erred by failing to correct, sua sponte, defense
counsel’s misstatement of the law regarding the burden of proof during his opening
statement. At trial, Marks’s counsel reserved his opening statement until after the State had
presented its case-in-chief. After the prosecution rested, Marks’s counsel began his opening
statement by saying, “If you will recall, yesterday morning the judge told you that I would
reserve my opening statement until such time as the burden shifts, or at least until the close
of the State’s case. The responsibility from this point on is for the defendant to move
forward.” Defense counsel failed to raise an objection to his own statement.
Marks recognizes that this court does not recognize “plain-error” and that the
contemporaneous-objection rule has not been complied with here. Marks, nevertheless, asks
this court to expand the recognized Wicks exceptions to the contemporaneous-objection rule
to include a statement that the burden of proof in a criminal case has shifted to the
defendant, when made by the defendant’s own trial counsel, even though defense counsel
did not object to his own statement.
Marks is correct that Arkansas does not recognize the plain-error rule, under which
plain errors affecting substantial rights may be reviewed on appeal although they were not
brought to the attention of the trial judge. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366
(1980). It is a fundamental rule of this court that an argument for reversal will not be
considered absent an appropriate objection in the trial court. Id. Four exceptions are
recognized: (1) when a trial court fails to bring to a jury’s attention a matter essential to the
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consideration of the death penalty; (2) when an error is made by a trial judge himself or
herself at a time when defense counsel has no knowledge of the error and thus no
opportunity to object; (3) when the serious nature of an error obligates the trial judge to
intervene, without objection, either by admonition to the jury or the declaration of a mistrial;
and (4) when an evidentiary ruling affects substantial rights. Id. Our case law is clear that
Wicks presents only narrow exceptions that are to be rarely applied. Anderson v. State, 353
Ark. 384, 398, 108 S.W.3d 592, 600 (2003).
Admittedly, the facts involved in this point are somewhat bizarre because Marks
argues that his defense counsel erred in his statement, did not object to his own error, but
that the circuit judge should have stepped in and corrected it. It is, of course, a fundamental
principle of criminal law that the State has the burden of proving the defendant guilty
beyond a reasonable doubt. Marks asks this court to determine whether a statement
indicating that the burden of proof in a criminal case has shifted to the defendant, when
made by the defendant’s own counsel, implicates the third Wicks exception. Marks’s
argument presupposes that defense counsel incorrectly stated the burden of proof. We are
not convinced that he did. Defense counsel started to say that he had reserved his opening
statement until the burden shifted, but then quickly corrected himself to say until the
prosecution rested. He then said that “the responsibility from this point on is for the
defendant to move forward.” Nothing in these statements impressed upon the jury the idea
that the defendant had the burden of proving his innocence. Rather, the statements referred
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to the defendant’s ability to proceed with the presentation of defense evidence, if the
defendant so desired.
In like situations, this court will defer to the superior position of the circuit judge to
control and manage the arguments of counsel. Anderson, 353 Ark. at 405-06, 108 S.W.3d
at 606. We note, in addition, that the correct burden of proof was stated to the jury in the
closing argument of counsel for both parties and in the circuit judge’s final instructions.
This court will not reverse the action of a trial court in matters pertaining to its control,
supervision, and determination of the propriety of arguments of counsel in the absence of
a manifest abuse of discretion. Id. at 395, 108 S.W.3d at 598. We conclude that the defense
counsel’s statements were not so flagrantly incorrect as to compel a finding that the circuit
judge’s failure to intervene, sua sponte, and instruct the jury as to the law was a manifest
abuse of discretion.
The record in this case has been reviewed in accordance with Arkansas Supreme
Court Rule 4-3(h), and no reversible error has been found.
Affirmed.
C ORBIN and D ANIELSON, JJ., concur.
P AUL E. D ANIELSON, J USTICE, concurring. I, too, affirm Marks’s judgment and
conviction because I cannot say that the admission of Howard’s testimony constituted
reversible error. However, I do so because, despite the circuit court’s abuse of discretion in
admitting the testimony, that error was harmless.
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Here, a review of the record reveals that Howard testified to the following on direct
examination: (1) that when Marks finished hitting Walker, Marks said that he was “going to
run [Walker] over”; (2) that Marks then”[j]umped in the car”; (3) that Marks moved the car;
(4) that the car ran over Walker; and (5) that he then left and went home. However, it was
revealed on cross-examination that Howard did not see Marks run over Walker.2 Howard
testified that “[w]hen [Marks] jumped in the car, that’s when I left.” He then confirmed that
he “ran off before this incident.” Following this testimony, on redirect examination, Howard
clarified his testimony, stating that he did not see Marks run over Walker, but heard a noise.
In addition, Howard testified that he saw the car driving after him, which Marks was driving.
With respect to Rule 701, we have held that the rule today is not a rule against
conclusions, but is a rule conditionally favoring them. See Moore v. State, 362 Ark. 70, 207
S.W.3d 493 (2005). Here, the majority attempts to interpret and construe the rule; however,
we have already done so, and it is our prior interpretation that renders the admission of
Howard’s testimony erroneous.
In Felty v. State, 306 Ark. 634, 816 S.W.2d 872 (1991), we examined Felty’s
argument that the circuit court erred in admitting the testimony of two lay witnesses because
their statements were conclusions that could not be supported by personal knowledge. While
2
It is important to note that it was not until cross-examination that Howard testified that
he did not actually see Marks run over Walker. Thus, there is no issue regarding preservation for
our review, as Marks objected at the first opportunity.
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ignored by the majority, this court specifically discussed the rule and the testimony it
contemplates:
[The rule] provides that a lay witness may give an opinion with two (2)
limitations. Limitation (1) is the requirement of firsthand knowledge or
observation. Limitation (2) is phrased in terms of requiring testimony to be
helpful in resolving issues. Witnesses often find difficulty in expressing
themselves in language which is not an opinion or conclusion. For example,
if a witness is asked, “What kind of day was it?” he might respond,
“Beautiful.” It would be an admissible opinion. He would not have to state
it was a clear skied, sunny, 72 degree spring day with a slight breeze. The
witness can respond in everyday language which includes his conclusion about
the type of day. However, if attempts are made to introduce meaningless
assertions which amount to little more than choosing up sides, exclusion for
lack of helpfulness is called for by the Rule. See Advisory Committee’s Notes
to Federal Rule 701.
In sum, opinion testimony by lay witnesses is allowed in observation of
everyday occurrences, or matters within the common experience of most
persons. Statements by eyewitnesses that the victim was “scared” and “trying
to get away” easily fit within the limitations imposed on lay witness opinion.
306 Ark. at 639-40, 816 S.W.2d at 875 (emphasis added). Under this court’s interpretation
of the rule, it is clear that Howard’s testimony did not meet the requirements of the rule, as
he lacked firsthand knowledge nor was his opinion, that Walker was run over, rationally
based on his perception of an everyday occurrence.
According to Felty, Howard’s testimony was only admissible, pursuant to Rule 701,
if it was rationally based on an observation of everyday occurrences or a matter within the
common experience of most persons. I simply cannot agree that the sound “bl-bloom, blbloom” is an everyday occurrence or within the common experience of most persons, as is
suggested by the majority’s analysis. For Howard to be permitted to testify that Marks did
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in fact run over Walker, when Howard did not witness such, was simply an abuse of
discretion by the circuit court.
In sum, Howard’s testimony, here, “ran over,” had to be rationally based on a
perception of an everyday occurrence. It is absurd, and clearly contrary to our case law, to
suggest that an opinion based on the sound of “bl-bloom, bl-bloom” is the equivalent of an
opinion regarding the weather or one’s impression of another, as set forth in Felty.3 Indeed,
Howard’s statement that Marks ran over Walker is precisely the type of meaningless
assertion amounting “to little more than choosing up sides” that the rule requires be excluded.
Howard lacked personal knowledge, and further, his testimony was not rationally based on
a perception of an everyday occurrence. For that reason, the circuit court abused its
discretion in allowing Howard’s testimony.
That being said, Howard’s testimony was merely cumulative to that of Bobbie Riley
and, further, the medical examiner. Riley testified that Marks and Claiborne beat and kicked
Walker, and, afterward, Marks stated that he was going to run Walker over. She further
stated that before Marks ran Walker over, he pulled Walker’s body to the middle of the road,
behind the car, then started the car and ran over Walker. In addition, the medical examiner
testified that Walker’s body surface showed “road rash,” which was indicative of an
individual being run over by a motor vehicle.
3
Such a sound, as described, could just as easily been a blown tire or a car driving over
the curb. Whatever inference was to be drawn from Howard’s testimony, prior to his statement
that Marks ran over Walker, was within the jury’s province.
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We have repeatedly held that prejudice is not presumed and that no prejudice results
where the evidence erroneously admitted was merely cumulative. See Wright v. State, 368
Ark. 629, 249 S.W.3d 133 (2007). Moreover, we do not reverse for harmless error in the
admission of evidence. See id. Because the admission of Howard’s testimony was harmless
due to its cumulative nature, I would affirm on this point. I, therefore, concur.
C ORBIN, J., joins.
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