Hart v. State ( 1999 )

Olly Neal, Judge.

Appellant Emanuel Hart was convicted by a jury of first-degree murder and two counts of committing a terroristic act. He was thereafter sentenced to thirty-five years in the Arkansas Department of Correction. On appeal, appellant contends that the trial court erred in allowing the State to present testimony that he allegedly shot at a vehicle other than the one involved in this case. We affirm.

The evidence presented at trial showed that on February 18, 1996, the appellant, Johnny Stephenson, Derrick Stewart, and Kenneth McArthur were out together at a local nightclub in North Little Rock. While at the club, Stephenson purportedly got into an argument with James Nichols, who was accompanied by Donian Jarrett and Shedric Sabb. Shortly thereafter, both of these groups departed in their vehicles and entered onto Interstate 30. Stephenson testified that when appellant noticed the red Hyundai driven by Nichols, appellant hollered, “There they go [sic]” and fired three shots. This testimony was corroborated by Derrick Stewart, who testified that as the red Hyundai began to exit the interstate, the appellant rolled down his window and fired four or five shots at the car. James Nichols testified that as he and his friends exited the interstate, no other vehicles were behind them except a gold Mitsubishi Gallant. Nichols further testified that although he did not hear gun shots at the time of the shooting, he did realize that Shedric Sabb had been shot while sitting in the back seat. Sabb was later pronounced dead from a gunshot wound.

In a police statement given on February 20, 1996, appellant admitted that he was riding in a gold Mitsubishi Gallant on the morning of February 18, 1996, and that he had fired two shots at a red car that was exiting the interstate because “they [the occupants of the red car] had pissed me off by circling around us, playing with us.” Appellant testified that he used a black automatic .380 caliber pistol in self-defense. Ronald Andrejack, a firearm and toolmark examiner with the Arkansas State Crime Laboratory, testified that the three casings found near the scene of the accident were consistent with having been fired from a ,9mm Glock semiautomatic handgun, which included bullet components of the .380 caliber class.

Appellant’s sole point on appeal is that the trial court erred in allowing Derrick Stewart to testify that he had shot at a Cadillac in the parking lot of the nightclub shortly before the shooting involved in this case. The State offered this testimony as admissible evidence under Ark. R. Evid. 404(b), which the trial court accepted and which appellant now seeks as reversible error.

The admission or rejection of evidence under Ark. R. Evid. 404(b) is left to the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. Brown v. State, 63 Ark. App. 38, 972 S.W.2d 956 (1998). Arkansas Rule of Evidence 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 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.” If the introduction of testimony of other crimes, wrongs, or acts is independently relevant to the main issue, i.e., relevant in the sense of tending to prove some material point rather than merely to prove that the defendant is a criminal, then evidence of that conduct may be admissible with a cautionary instruction by the court. Regalado v. State, 331 Ark. 326, 961 S.W.2d 739 (1998). Thus, if the evidence of another crime, wrong, or act is relevant to show that the offense of which the appellant is accused actually occurred and is not introduced merely to prove bad character, it will not be excluded. Lindsey v. State, 319 Ark. 132, 890 S.W.2d 584 (1994). However, such relevant evidence may be excluded under Ark. R. Evid. 403 if its probative value is substantially outweighed by the danger of unfair prejudice. Id.

Here, we first note that appellant failed to ask for a cautionary instruction that the purpose of Derrick Stewart’s testimony was not to show that he had a criminal propensity for shooting weapons at moving cars. Regardless of the fact the appellant did not ask for a limiting instruction, we conclude that Stewart’s testimony was relevant in showing that appellant fired shots at the victims with an absence of mistake or accident. Appellant acknowledged in his police statement that he had ready access to his weapon and that he had shot at the victims’ car because he was angry at the victims shortly before the incident. There was also testimony that the casings found near the crime scene were consistent with the gun that appellant was found to have possessed and that after the shooting, appellant wanted to disassemble the gold Mitsubishi. Further, Stewart’s testimony was part of the res gestae of the case by providing corroborating evidence that appellant had possession of a gun before the present shooting, even though appellant had testified that Kenneth McArthur was the actual person in possession of the weapon. We have previously stated that all of the circumstances of a particular crime are part of the res gestae of the crime, and all of the circumstances connected with a particular crime may be shown to put the jury in possession of the entire transaction. Hunter v. State, 62 Ark. App. 275, 970 S.W.2d 323 (1998).

The underlying facts in this case show that appellant admitted to shooting at the victims out of anger, in spite of testimony that the victims did nothing to provoke him. Stephenson testified that when appellant observed the victims’ car, he shot at the car a multiple number of times. Stewart testified that he first noticed that appellant had a weapon when appellant shot at and ran behind a Cadillac in the parking lot of the Cameo club, and that shortly after leaving the club and exiting onto the interstate, appellant began shooting after a red Hyundai stating, “I’m tired of them [sic] young punks.” There was also evidence from one of the victims that the gold Gallant, in which appellant was a passenger, was at the nightclub earlier that evening and was the only car on the interstate at the time Shedric Sabb was fatally shot. In appellant’s own testimony, he stated that “on page 10 of my [police] statement, I said that what really made me shoot is that it pissed me off by their circling around and playing with us. I was referring then to the white Bronco and the Cadillac.” Coincidentally, appellant was referring to the victims’ car when he stated to police, “well what really made me shoot is when they was blocking, you know. They should have went on — ’cause I didn’t know what they was gone do. They had pissed me off by kept [sic] circling around us, playing with us.” Further, there was evidence that appellant suggested stripping down the gold Gallant after he learned that one of the victims had died. When the evidence of guilt is overwhelming and the error is slight, the appellate court can declare the error harmless and affirm. Brown, supra.

Although the dissent feels that Rowdean v. State, 280 Ark. 146, 655 S.W.2d 413 (1983), and Lincoln v. State, 12 Ark. App. 46, 670 S.W.2d 819 (1984), are controlling, we note that this case is distinguishable. In both Rowdean and Lincoln, evidence was presented that the appellant had either pulled a gun or waved a gun around another person shortly before the shootings that occurred in their present convictions. However, in this case, there was evidence that appellant had actually shot at a Cadillac in the parking lot of the Cameo club and within a short period of time, shot at the victims involved in the present case. In addition, appellant admitted that he was angry at the occupants of the Cadillac when he shot at them. Although appellant shot at two different vehicles, his conduct in the first incident was relevant in showing an absence of mistake or accident for the same type of conduct in the present incident. Therefore, under these circumstances, we cannot say that appellant was unfairly prejudiced by the testimony of Derrick Stewart.

Affirmed.

Robbins, C.J., Bird and Meads, JJ., agree. Pittman and Hart, JJ., dissent.