White v. State
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SUPREME COURT OF ARKANSAS
No.
CR08-1402
Opinion Delivered 6-25-09
RICKY EARL WHITE,
APPELLANT,
VS.
STATE OF ARKANSAS,
APPEAL FR O M THE PU LASKI
COUNTY CIRCUIT COURT, NO. CR
2008-895, HON. BARRY ALAN SIMS,
JUDGE,
APPELLEE,
AFFIRMED.
ROBERT L. BROWN, Associate Justice
Appellant Ricky Earl White was convicted of first-degree murder. Because of previous
felony convictions, he was sentenced as a habitual offender to life imprisonment for the
murder charge, and his sentence was enhanced by fifteen years for using a firearm to commit
the murder, pursuant to Ark. Code Ann. § 16-90-120(a) (Supp. 2007). The circuit judge
ordered the sentences to run concurrently. White raises one issue on appeal: that the circuit
judge abused his discretion in admitting testimony of his possession of a .380 caliber handgun.
We affirm.
In the early morning hours of February 2, 2008, Penze Wine was shot and killed in
the parking lot of a recording studio in Southwest Little Rock. According to the State’s
theory of the case, Wine and Carlos Pace had spent time in the recording studio during the
evening of February 1, 2008 and the early morning of February 2, 2008. They were drinking
beer, and when they had consumed it all, they decided to drive down the street to a gas
station to purchase more beer. After doing so, Wine and Pace returned to the studio, where
some of the other people present said they wanted more beer as well. After that request, Pace
testified that Wine and he again left the studio and got into Wine’s car. Apparently, as Wine
began to back up, he bumped into White’s car.
It was Pace’s testimony that he knew White and recognized him when Wine and he
got out of the car.1 Pace told the jury that he did not see any damage to White’s car and that
Wine said, “I’ll pay for any damage or whatever.” Pace’s testimony was that there “wasn’t
an argument” between Wine and White, but that White “was just like, ‘you ran into my car,
you hit my car.’” Pace then told the jury, “Penze [Wine] kept saying, you know, repeatedly
that, ‘I’ll pay for any damages.’ Next thing I know I heard a shot and saw Mr. Wine on the
ground.” He then identified White as the person who shot Wine.
Gary Wilkins, a friend of Wine’s and Pace’s brother, was also at the recording studio
on the night in question. He testified that after Pace and Wine left the studio for the second
time, right before the shooting occurred, he went to the front door of the building and saw
Wine’s “car sitting there and that white Cadillac behind it and [he] told them you-all need
to come in and get off that parking lot because it’s too late out there.” Wilkins said that he
did not see a gun, but he saw Wine, Pace, and another person standing by the cars and that
as he “started shutting the door then [he] just heard a bam.” According to Wilkins, he looked
outside again, and Wine “was on the ground.” He testified that he “heard a shot” and
1
White was also known as “Big Baby.”
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identified White as the person who had been in the white Cadillac that night. He said that
he was “a hundred percent” certain that he recognized White as the person who was in the
white Cadillac.
The State introduced the testimony of another witness to the shooting, Latonya Miller.
Miller told the jury that she was home on the night in question, across the street from the
recording studio. She testified that she had a direct view from her front window to the
parking lot. She said that she heard “loud conversation” outside of her house and “went to
go look out the window.” She testified that she saw “a white Cadillac and . . . a white car
pulled up in front of the – parked in front of the studio.” Next, Miller said:
As I’m standing there just looking seeing what they was doing, I see one guy with his
hands up, well, and one guy with his back towards me. It was a bigger guy with his
back towards me. And as I’m looking, I see fire. I seen the guy fall and hit the
ground. As I see that, I’m stuttering and I’m like, oh. Got nervous, got scared
because I’m like, okay, something happened across the street. I called 911.
Miller then testified that she told the emergency operator that someone had been shot across
the street from her house and that “a black guy got into a white Cadillac and he’s driving
away.” The prosecutor later asked Miller if she had ever seen the white Cadillac before, and
Miller responded in the affirmative and said she knew the Cadillac because the man that drove
it lived “five houses right up the street from me” and “the reason why I knew the Cadillac
is because my nephew used to play with his kids up the street.” Miller then identified White
as the man who owned the white Cadillac and testified that she saw him in the parking lot
on the night in question.
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Dr. Stephen A. Erickson, the deputy chief medical examiner at the Arkansas State
Crime Lab, testified that he performed an autopsy on Wine. It was Dr. Erickson’s testimony
that the manner of death was homicide. According to Dr. Erickson, Wine died of a gunshot
wound to the chest, and the bullet was a “thirty-eight caliber class range.” Stan Wilhite
testified that he worked for the Little Rock Police Department, Crime Scene Investigation
and that he recovered a .380 caliber spent hull from the scene of the crime. While the gun
used to kill Wine was not recovered, the State introduced the testimony of Anita Ray, over
White’s objection, to the effect that she had seen White with a .380 caliber handgun and
knew him to drive a white Cadillac.
White specifically maintains in his sole point on appeal that Anita Ray’s testimony was
inadmissible under Arkansas Rule of Evidence 404(b) because:
Ms. Ray’s statement that she had seen Appellant White with a .380 caliber handgun
would assist the jury in finding Appellant White guilty of the murder of Penze Wine
only if the jury was willing to conclude that Appellant White was a bad man who had
a propensity to habitually carry a .380 caliber handgun and that is why he had one
with him when he confronted Mr. Wine at the crime scene.
Rule 404(b) provides that “evidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to show 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.” Ark. R. Evid.
404(b) (2009).
It is well settled by this court that testimony of other criminal activity is admissible “if
it is independently relevant to the main issue, that is, relevant in the sense of tending to prove
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some material point rather than merely to prove that the defendant is a criminal.” See
Green v. State, 365 Ark. 478, 494, 231 S.W.3d 638, 651 (2006). In other words, the evidence
offered under Rule 404(b) must make the existence of any fact of consequence more or less
probable than it would be without the evidence. See Lamb v. State, 372 Ark. 277, 275
S.W.3d 144 (2008). The admission or rejection of evidence under Rule 404(b) is committed
to the sound discretion of the circuit court, and this court will not reverse absent a showing
of manifest abuse of discretion. See id.
As a threshold matter, this court must determine whether Rule 404(b) even applies in
the context of White’s case. Stated differently, did the State, in fact, introduce evidence of
White’s “other crimes, wrongs, or acts” through Ray’s testimony? Ray’s testimony, in its
entirety, was:
P ROSECUTING A TTORNEY:
Ma’am, would you introduce yourself to the ladies
and gentlemen of the jury?
R AY:
Anita Ray.
P ROSECUTING A TTORNEY:
And do you know Ricky Smith – Ricky White?
Excuse me.
R AY:
Yes, sir.
P ROSECUTING A TTORNEY:
Ricky Earl White. Do you see him in the
courtroom here today?
R AY:
Yes, sir.
P ROSECUTING A TTORNEY:
Where is he?
R AY:
Right there (witness indicating).
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P ROSECUTING A TTORNEY:
May the record reflect identification.
R AY:
Right there in the gray suit.
P ROSECUTING A TTORNEY:
And how long have you known him and how do
you know him?
R AY:
I have three boys by his brother and I’ve been
knowing him for a minute.
P ROSECUTING A TTORNEY:
You’ve been knowing the family?
R AY:
Ricky, uh-huh.
P ROSECUTING A TTORNEY:
So you’ve known him for quite some time?
R AY:
Yes, sir.
P ROSECUTING A TTORNEY:
And do you – does he live near you?
R AY:
Yes, sir.
P ROSECUTING A TTORNEY:
And what kind of car have you seen him driving
around February of 2008?
R AY:
A four-door white Cadillac.
P ROSECUTING A TTORNEY:
And does he have any nicknames you’re aware of?
R AY:
Big Baby.
P ROSECUTING A TTORNEY:
Big Baby?
R AY:
Yes, sir.
P ROSECUTING A TTORNEY:
And have you known him – have you ever seen
him with a .380 caliber handgun?
R AY:
Yes, sir.
P ROSECUTING A TTORNEY:
Pass the witness. Oh, before I ask that.
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P ROSECUTING A TTORNEY:
Do you know, were you anywhere around the
area when this shooting took place? Are you
aware that there was a shooting?
R AY:
I am aware of it. My boys, they knew about it; I
wasn’t there.
P ROSECUTING A TTORNEY:
But none of you-all knew anything about it firsthand at all?
R AY:
I was not there, no, sir.
P ROSECUTING A TTORNEY:
Thank you.
The defense attorney did not ask Ray any questions.
Before Ray testified to the jury, the circuit judge held a hearing to determine whether
her testimony was admissible under Rule 404(b), as White had asserted it was not. At that
hearing, Ray told the judge that she knew White carried the gun because of an “incident”
when he had pulled it on her and her fiancée. In that hearing, the prosecutor told Ray on
more than one occasion that “you understand that if you’re allowed to testify, you’re not to
mention anything about the incident [with her and her fiancée], other than you know that
he has a .380 and you knew he had it around the time of February 2nd.”
At the conclusion of the hearing, the circuit judge ruled: “Okay, I’m going to allow
it.” Because he did not explain his decision, it is unclear whether he permitted the testimony
because he found Rule 404(b) did not apply or because the testimony was independently
relevant to the instant case. Regardless, it is evident to this court that Rule 404(b) was not
applicable to Ray’s testimony.
The record reflects that Ray followed the prosecuting
attorney’s instruction and did not mention the incident in which White allegedly pulled a
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.380 caliber handgun on her fiancée and her. The only testimony related to the gun was that
Ray had seen White with a .380 caliber handgun. As the State correctly points out in its brief
before this court, it is not a crime to possess a handgun. Hence, the jury was not informed
of any prior criminal or other bad act on the part of White.
In a similar case, this court held that the circuit court did not abuse its discretion by
permitting the jury to read a transcript of a telephone call the appellant made from the jail to
his mother. See White v. State, 370 Ark. 284, 292-93, 259 S.W.3d 410, 416 (2007). The
appellant in White had been previously charged with the rape of a minor, and the case ended
in a mistrial. During the second trial, the State introduced the following statement he made
to his mother: “Well, that’s what I’m trying to do, and if you work with me, you’ll see what
I’m saying. There’s nothing going to happen. When I told you that last time and I came
back home, didn’t I?” Id. at 293, 259 S.W. 3d at 416. In that case, the appellant urged that
the statement should have been redacted because portions were inadmissible under Rule
404(b) since they referred to the prior rape trial. Id. This court affirmed the circuit court’s
rejection of that argument and held that “there was no Rule 404(b) issue because the statement
to be redacted would not cause the jury to be aware that there was an alleged prior similar
crime.” Id.
As in White, in the instant case, the jury was not made aware of any prior crime or
other bad act by White but was simply told that Ray had seen him with a .380 caliber
handgun. Because no evidence of prior crimes, wrongs, or bad acts was presented to the jury
through Ray’s testimony, Rule 404(b) did not apply. Even if Rule 404(b) did apply,
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evidence that Ray possessed a .380 caliber handgun was certainly relevant in light of the fact
that a .380 caliber shell hull was recovered at the scene of the crime. See Gilcrease v. State, ___
Ark. ___, ___, ___ S.W.3d ___, ___ (May 21, 2009) (evidence that appellant possessed a gun
similar to that used in the commission of the crime held to be independently relevant proof
of the appellant’s identity). For these reasons, the circuit judge did not abuse his discretion
in admitting Ray’s testimony.
While the court does not believe it to be reversible, one ruling adverse to White bears
mentioning as a result of our Rule 4-3(i) review. During the prosecutor’s closing argument,
the following colloquy took place:
P ROSECUTING A TTORNEY:
He [White] was identified positively by Gary, by
Carlos, and by Latonya, who was across the street.
And there was a consistent identification by
Eugene Harris. I want to talk a little bit more.
Like I said, I hope to God it wasn’t just for
backing into his car because that’s –
D EFENSE C OUNSEL:
Objection, may we approach?
T HE C OURT:
No. No.
P ROSECUTING A TTORNEY:
I’ll move on.
D EFENSE C OUNSEL:
I’d like to make a record for this.
T HE C OURT:
He said he would move on.
P ROSECUTING A TTORNEY:
I’ll move on.
D EFENSE C OUNSEL:
I would still like to make an objection.
T HE C OURT:
No.
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It is unclear from the record exactly what defense counsel wanted to do. Did she wish
to approach the bench and make a record in a sidebar conference? Did she want to make a
more specific objection in open court before the jury? And, if so, what was her objection?
The record leaves us largely in the dark about this scenario. Because it is incumbent on
counsel to make a specific objection for our review on appeal, even in the face of the circuit
judge’s negative response, no reversible error has been shown. See Dodson v. State, 341 Ark.
41, 14 S.W.3d 489 (2000).
The record has been reviewed in accordance with Supreme Court Rule 4-3(i), and no
reversible error has been found.
Affirmed.
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CR08-1402
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