Fowler v. State , 2015 Ark. App. LEXIS 661 ( 2015 )

Cite as 2015 Ark. App. 579
ARKANSAS COURT OF APPEALS
DIVISION I
No. CR-13-316
Opinion Delivered October 21, 2015
ANTWAN FOWLER APPEAL FROM THE FAULKNER
APPELLANT COUNTY CIRCUIT COURT
[NO. CR-2011-1160]
V.
HONORABLE DAVID L.
STATE OF ARKANSAS REYNOLDS, JUDGE
APPELLEE
AFFIRMED
BRANDON J. HARRISON, Judge
Antwan Fowler appeals his first-degree murder conviction and argues that the circuit
court erred in (1) denying his motion for directed verdict, (2) not allowing certain questions
during the defense’s cross-examination of Dr. Frank Peretti, (3) not allowing the defense to
call Dr. Peretti as a witness in its case-in-chief, and (4) enhancing Fowler’s sentence based
on use of a firearm. We affirm.
In a felony information filed 23 September 2011, Fowler was charged with first-
degree murder and employing a firearm in the commission of the crime. He was also later
charged as a habitual offender. At a jury trial held in September 2012, the State presented
the following testimony.
Jodi Thomas testified that her husband, Stevie Thomas, was killed on Monday, 20
June 2011. She testified that she had attended high school with Fowler but that her husband
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and Fowler were not close friends. Jodi explained that on June 17, the Friday before her
husband was killed, he spoke to Fowler on the phone and had the call on speaker. Accordng
to Jodi, Fowler was “screaming and cursing and he told Stevie, ‘Don’t put the folks in it, it
is on, on shot.’” Jodi testified that Stevie was very upset and felt threatened by the
conversation. She testified that they stayed home for most of the weekend, which was
Father’s Day weekend, but that on June 19, Stevie and his brother, Kenny Thomas, went
to visit their father’s grave and then went to a get-together at “Uptown E’s House.” She
explained that they drove her vehicle, a white 2001 Galant, and that there was a .45-caliber
handgun in her car that she kept for her own protection. She testified that when her car
was returned to her after her husband’s death, the gun was missing, and she eventually
reported it stolen.
Pam McFarland testified that she lived at 1120 Ingram and that she and her boyfriend,
Eric, had a barbeque for Father’s Day on 19 June 2011. She explained that the barbeque
lasted all day and into the night and that there were probably twenty people there at any
given time. She testified that she knows Stevie and Kenny Thomas but did not see them
that night. She also testified that she knows Fowler and did see him walk by the front of
the house that night. McFarland testified that, at some point that evening, she went inside
and fell asleep but awoke to loud noises that she thought were fireworks. She explained
that she went to the door and saw several people kicking another person who was lying on
the ground. She identified Fowler as the person on the ground and stated that it looked
like he had been shot. She saw several people get into Kenny Thomas’s car and drive away.
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Montana Wright, McFarland’s seventeen-year-old daughter, testified that she was
also inside the house when she heard shots that sounded like firecrackers—four shots in
quick succession, and then more shots later. She also looked outside and saw people kicking
someone on the ground. She did not see anyone with a gun that night.
Sixteen-year-old April Yager testified that she was staying with her friend Montana
Wright that night and that she was also inside when she heard the shots. She testified that
she saw a man sitting in a white car in front of the house and that she “guess[ed] he got
shot.” When asked why it was a guess, Yager stated that she was told that by the police.
She acknowledged talking to Detective Sarah Ault with the Conway Police Department
but insisted that she (Yager) said only what the police wanted her to say.
PROSECUTOR: So your testimony to this jury today that you were
coming out and we were just standing there, coming out
of the house, and you started hearing all the popping, so
you turned back around and that’s when I seen a guy
walk up and that’s when I turned around, he was
walking up and I turned around, I saw him crack his
door and that’s when it started going.” [sic] You don’t
remember saying any of that?
YAGER: I just told you that’s what she told me I saw.
PROSECUTOR: You did say that to her; is that right?
YAGER: Sure, yeah.
PROSECUTOR: Are you denying that you said that to her?
YAGER: I couldn’t deny it if you have it, but I’m telling you that
she told me that I was outside when I told her I was
inside.
PROSECUTOR: And so when you said, when she asked you: “He had
shot at somebody in the car in the driver’s seat?” And
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you said, “Yeah the guy was sitting in the car.” So you
told her that because you thought she wanted you to say?
YAGER: That is what she wanted me to say. . . . I agreed with her
because I wanted to go back in the house.
PROSECUTOR: So you just lied to her and made that up?
YAGER: Yes sir.
PROSECUTOR: So when you said he shot at the guy in the driver’s seat,
that was made up?
YAGER: Yes sir.
PROSECUTOR: And you said, “I knew that they were shooting at each
other because I heard popping and so I turned around
and heard a popping and I seen the flashes.[”] You just
made that up?
....
PROSECUTOR: Ms. Yager, it is also fair to say that you have said that the
person sitting in the car was not the first person to shoot,
right?
YAGER: Yes sir.
PROSECUTOR: And is that just made up?
YAGER: That’s what she told me happened.
....
PROSECUTOR: Ms. Yager, you would agree that you also told, because
she told you what to say, that the person that started
firing was the person that ended up on the ground, isn’t
that right? That’s what you told Detective Ault, right?
YAGER: He —
PROSECUTOR: Because the person that started shooting first was the
person that ended up on the ground. Do you
remember saying that, don’t you? I mean, I know that
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you are saying that you didn’t see that, but you agree
you said that?
YAGER: I don’t remember saying that.
Detective Sarah Ault testified that she responded to the crime scene at 1170 Ingram
Street. She explained that she interviewed witnesses and found that most of them “appeared
to not want to get involved.” She also described a few witnesses as “evasive, not wanting
to cooperate.” She recalled speaking to April Yager inside the house and asking her to write
a statement. After Yager refused, Ault spoke with her privately and secretly recorded their
conversation. 1 She denied ever telling Yager what to say or relaying details about the crime.
She also confirmed that no handguns had been found at the scene. On cross-examination,
she explained that there was a second crime scene nearby involving a one-car accident at
the corner of Caldwell and Locust, and that Stevie and Kenny Thomas had left the Ingram
Street crime scene in that car.
Sergeant Gene Hodges testified that he responded to a suspicious-person call on 20
June 2011 near Ingram Street and, while checking the area, heard the gunshots. Hodges
explained that he and his partner heard a series of shots, then more shots, and that he could
tell that there were two weapons fired because one sounded different than the other. He
stated it sounded like a smaller caliber was fired first, then a larger caliber. They immediately
received a call to respond to Ingram Street and arrived within a minute. Hodges observed a
person lying between two cars, later identified as Fowler, and tried to speak with him, but
This conversation, which is apparently what the prosecutor was quoting during
1
Yager’s direct examination, was not admitted into evidence.
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Fowler was not coherent. Hodges explained that Fowler was wounded in his upper head
and face area.
Officer Andrew Johnson testified that he also responded to Ingram Street and
observed Fowler lying on the ground with an apparent gunshot wound to his head. Johnson
observed a significant amount of blood on the ground and several shell casings.
Detective Bradley Fornash testified that he responded to the scene of the one-car
accident and that the vehicle appeared to be traveling away from Ingram Street toward
Conway Regional Hospital. His investigation revealed that Stevie and Kenny Thomas had
been the occupants of the vehicle.
Dr. Frank Peretti, a forensic pathologist and medical examiner at the Arkansas State
Crime Lab, testified that he examined the body of Stevie Thomas. Dr. Peretti stated that
Thomas had three gunshot wounds—to his chest, thigh, and arm—and that the wound to
his chest was the fatal wound. Thomas also had superficial wounds from the car accident.
Latricia Mainard, a paramedic at MEMS Ambulance Service, testified that she
responded to Ingram Street, where Fowler was in critical condition with wounds to his
head and abdomen.
Detective Jason Cameron testified that he responded to the shooting at Ingram Street
and that he recovered seven shell casings from two different calibers of guns—five from a
.40 and two from a .45. He testified that one of the .45-caliber shell casings was found
inside Thomas’s Mitsubishi Galant, along with a bullet fragment from the windshield post
and a bullet in the driver’s seat. Cameron also identified photographs of bullet holes in the
hood and windshield of the Galant and blood stains inside the Galant.
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Joseph Hoff, a forensic-DNA analyst with the Arkansas State Crime Laboratory,
testified that blood samples taken from the Galant and the driveway at 1170 Ingram Street
belonged to Stevie Thomas.
After the State rested, the defense moved for a directed verdict, arguing that the State
had failed to prove that Fowler purposely caused the death of Stevie Thomas. The defense
argued that no one had seen Fowler in possession of a gun or seen him shoot Thomas. The
motion was denied. The defense rested without calling additional witnesses and renewed
the motion, which was denied. The case was sent to the jury, which found Fowler guilty
of first-degree murder and employing a firearm as a means of committing first-degree
murder. Fowler was sentenced to sixty years’ imprisonment for first-degree murder with
an additional fifteen years’ imprisonment for the firearm enhancement.
We first address Fowler’s challenge to the sufficiency of the evidence. Although
Fowler presents his challenge to the circuit court’s denial of his motion for directed verdict
as his third point on appeal, we must address such a challenge first for purposes of double
jeopardy. See Woolbright v. State, 357 Ark. 63, 160 S.W.3d 315 (2004). This court treats a
motion for a directed verdict as a challenge to the sufficiency of the evidence. Gwathney v.
State, 2009 Ark. 544, 381 S.W.3d 744. In reviewing a challenge to the sufficiency of the
evidence, we view the evidence in the light most favorable to the State, consider only the
evidence that supports the verdict, and affirm if substantial evidence exists to support the
verdict. Id. Substantial evidence is that evidence which is of sufficient force and character
that it will, with reasonable certainty, compel a conclusion one way or the other, without
resorting to speculation or conjecture. Campbell v. State, 2009 Ark. 540, 354 S.W.3d 41.
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A person commits first-degree murder if, with a purpose of causing the death of
another person, the person causes the death of another person. Ark. Code Ann. § 5-10-
102(a)(2) (Repl. 2013). A person acts purposely with respect to his or her conduct or a
result of his or her conduct when it is the person’s conscious object to engage in conduct
of that nature or to cause the result. Ark. Code Ann. § 5-2-202(1) (Repl. 2013). Intent or
state of mind is seldom capable of proof by direct evidence and must usually be inferred
from the circumstances of the crime. Taylor v. State, 77 Ark. App. 144, 72 S.W.3d 882
(2002). A presumption exists that a person intends the natural and probable consequence
of his acts. Bell v. State, 99 Ark. App. 300, 259 S.W.3d 472 (2007).
Fowler argues that the evidence in this case showed that he was attending a Father’s
Day celebration in his neighborhood when, without provocation, he was shot by the
decedent multiple times. He asserts that there is no evidence in the record that he possessed
a weapon or threatened the decedent. He also contends that none of the State’s witnesses
testified that they saw Fowler harm, attempt to harm, or threaten to harm the decedent.
In response, the State argues that the evidence demonstrated that shots were fired
from two different guns that night: five .40-caliber bullets were fired toward the decedent’s
vehicle, and two .45-caliber bullets were fired from the decedent’s vehicle toward Fowler.
According to the State, the evidence also showed that the five shots were fired first, by
Fowler, and that the decedent fired back in self-defense. The State contends that “[t]he jury
could reasonably infer from the testimony of the witnesses, combined with photographs
taken and evidence gathered from the crime scene, that Appellant purposely caused the
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death of Steve Thomas by firing five shots at him from a .40-caliber gun which struck the
vehicle, and inflicted the fatal wounds.” 2
We affirm. Contrary to Fowler’s assertion, there was evidence that Stevie Thomas
felt threatened by Fowler, that Fowler fired shots toward Thomas while he was sitting in
his wife’s car, and that Thomas retaliated by firing shots toward Fowler. We hold that there
was substantial evidence for the jury’s verdict without resorting to speculation or conjecture.
Next, Fowler argues that the circuit court erred in not allowing certain questions
during the defense’s cross-examination of Dr. Peretti. Prior to trial, the State moved to
exclude the results of a toxicology screen performed by Dr. Peretti on the decedent, which
revealed the presence of alcohol, cannabis, and cocaine. The State argued that the results
were prejudicial and not relevant. After noting that Fowler was pleading general denial as
a defense, the court agreed that the toxicology report was not relevant and should be
suppressed. The court did agree, however, that “[i]f they become relevant later, you know,
I can change that ruling.”
During defense counsel’s cross-examination of Dr. Peretti, she asked him if he had
run pathology reports on the decedent, which prompted an objection by the State. The
State argued that the court had already ruled that the report and its results were not allowed.
Defense counsel argued that the report was relevant because it was part of the overall autopsy
report, which was relied on by the State in deciding to bring charges against Fowler.
2
In his reply brief, Fowler denies that there was any evidence that he purposely caused
the death of the decedent and disputes the evidence cited by the State. However, because
this argument is raised and developed for the first time in his reply brief, we do not consider
it. Hinton v. State, 2010 Ark. App. 341.
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Counsel also asserted that the presence of toxins in the body might have affected the speed
and trajectory of the bullets. Counsel insisted that the defense had the right to cross-examine
Dr. Peretti on every aspect of the report he had prepared, even though the report was not
introduced into evidence.
After the court sustained the State’s objection, defense counsel attempted to
introduce the autopsy report herself, to which the State objected because (1) it was a prior
consistent statement, and (2) the court had already ruled that some of the information in the
report, specifically the toxicology screen, was prejudicial and irrelevant. The State argued
that because Fowler’s defense was a general denial, the presence of intoxicants in the victim’s
system was irrelevant. The court sustained the State’s objection, and defense counsel argued
that the court was “restricting Mr. Fowler’s rights to confrontation.” The court responded
that defense counsel could ask Dr. Peretti “about his findings on relevant issues that were
brought up . . . in direct examination. You have that right, but you don’t have the right to
introduce the irrelevant information and just because he produced it [the report] doesn’t
mean it is relevant.”
On appeal, Fowler again argues that the autopsy report, specifically the toxicology
report, was relevant. He argues that an inquiry into the “material issues” surrounding the
victim’s intoxication “[was] necessary in order to challenge the cause of death.” This is
especially so, he argues, “[g]iven that there is credible evidence that suggests that the
decedent may have died from either drug poisoning or the injuries he sustained during his
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car accident.” Fowler assserts that in limiting his cross-examination of Dr. Peretti, the circuit
court violated his Sixth Amendment right to confrontation. 3
In response, the State argues that Fowler failed to obtain a ruling on any
constitutional argument and that the circuit court did not err in finding that the results of
the toxicology report were irrelevant. In his reply brief, Fowler asserts for the first time that
he was denied the right to ask questions about the reliability of the autopsy report. This
argument is both incorrect and raised for the first time in the reply brief, so it will not be
addressed. See Hinton, supra.
Evidentiary rulings are a matter of discretion and are reviewed only for abuse of that
discretion. Gilcrease v. State, 2009 Ark. 298, 318 S.W.3d 70. While an accused is accorded
wide latitude in cross-examination to impeach the credibility of a witness against him, the
circuit court may also impose reasonable limits on what testimony is admitted based upon
concerns about harassment, prejudice, waste of time, confusion of issues, or interrogation
that is repetitive or only marginally relevant. Id., 318 S.W.3d 70.
We hold that the circuit court did not abuse its discretion in this instance. Given
Fowler’s defense of general denial, the circuit court was correct in finding the victim’s
toxicology report irrelevant. See Arnett v. State, 2010 Ark. App. 702 (holding that victim’s
toxicology report was not relevant when defendant claimed he accidentally killed the
3
Fowler also mentions the court’s limiting his cross-examination of the paramedic,
Latricia Mainard, but his argument focuses on Dr. Peretti, so Mainard’s cross-examination
will not be discussed. See Hendrix v. State, 2011 Ark. 122 (failure to develop an argument
precludes review of the issue on appeal). Fowler also argues that the circuit court
erroneously held that the autopsy report was inadmissible under the business-records
exception to hearsay, but because we cannot find such a ruling in the record, this argument
will not be addressed.
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victim). And, contrary to Fowler’s assertion, there was no credible evidence upon which
to challenge the cause of death. Dr. Peretti explained unequivocally that the “cause of death
is self-evident, you’ve got multiple gunshot wounds.” And Fowler received no ruling on
any Confrontation Clause argument so we need not address it. See Lewis v. State, 2014 Ark.
App. 136, 432 S.W.3d 145 (failure to obtain a ruling on an issue at the trial court level,
including a constitutional issue, precludes review on appeal).
Fowler also argues that the circuit court erred in not allowing the defense to call Dr.
Frank Peretti as a witness in its case-in-chief. At the conclusion of Dr. Peretti’s testimony
during the State’s case-in-chief, defense counsel stated that she had no more questions but
requested that Dr. Peretti “remain under subpoena to be called possibly after testimony from
the other persons” at the State Crime Lab. Dr. Peretti explained that he would be traveling
to Mena the next day, and the court stated, “I’m not sure we’ll need you tomorrow.”
Defense counsel again asked whether Dr. Peretti would be under subpoena power, to which
the court responded, “Yes, he will be, you will be under call.”
The next day, after the State rested, defense counsel announced that she would like
to call Dr. Peretti as a witness. The State objected and argued that “it is discretionary with
the Court whether or not she gets to call the witness. The only questions she is going to
ask the witnesses [sic] are questions we have already gone over and have been asked and
answered.” The court noted that Dr. Peretti had been available the previous day and that
defense counsel had an opportunity to cross-examine him. The court questioned what
additional testimony from Dr. Peretti would be relevant, and defense counsel explained,
“Our purpose is to call Dr. Peretti to explore specifically about some findings in his report
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that come from some of the testimony reference the bullets, bullet fragments that were
testified to by the analyst today.” The court responded that those questions had been asked
the previous day, but defense counsel insisted that they were not the same questions and
that she had additional questions.
After a lunch recess, the bench conference continued, and the State objected to
calling Dr. Peretti based on Ark. R. Evid. 611, which allows the court reasonable control
over the mode and order of interrogating witnesses and presenting evidence. The State
argued that Dr. Peretti had been subject to extensive direct examination and cross-
examination on all the issues contained in his report and that there was no additional relevant
testimony that had not already been elicited from Dr. Peretti. Defense counsel contended
that she had questions for Dr. Peretti that could not be asked on cross-examination and that
“go directly towards whether Mr. Fowler caused the death of Stevie Thomas.” The
following exchange then took place:
THE COURT: If you don’t give me some indication of what Dr. Peretti
is going to testify to today, that he did not testify to
yesterday or you did not have an opportunity to ask
yesterday, then I’m going to rule that your—his
testimony is not relevant, that it is a waste of time
because it is going to cause this case to be delayed
another day and that’s within my discretion.
DEFENSE COUNSEL: And again, then the Court is making the decision that—
has taken the position that Defense counsel cannot call a
witness for direct examination and I am just asking that
the Court—
THE COURT: Not when it results in a one-day delay.
DEFENSE COUNSEL: Well, Your Honor, again—
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THE COURT: Because you knew yesterday that he couldn’t be here
today.
....
DEFENSE COUNSEL: I only dealt with their direct examination is the main
intent. I only dealt with that. I was limited in cross. I
can’t ask direct questions.
THE COURT: You were not limited.
DEFENSE COUNSEL: Oh yes, I can only—it is only limited to that which was
asked on direct.
THE COURT: Not one statement did anyone have an objection to you
going into anything that was not covered on direct.
DEFENSE COUNSEL: They absolutely did make objections to things that
specifically a toxicological reports [sic] weren’t in there.
THE COURT: That’s right.
DEFENSE COUNSEL: There were other things that they did not address on
direct that I want to address on my direct and we want
to call him as a witness so that I can address those issues
from their report and based on some of the testimony
that was given today. I want to ask him direct questions
about his findings based on I [sic] information and it did
not come out on direct. And it couldn’t come out in
cross because cross is limited to that which comes out on
direct.
THE COURT: I am going to deny your motion.
Defense counsel later proffered that Dr. Peretti “would have testified specifically as to the
specific findings of the toxicological reports and their relevance to what may have been or
contributed to Stevie Thomas’[s] death.” Counsel also proffered the autopsy report and the
toxicology report into evidence.
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On appeal, Fowler asserts that the circuit court violated his Sixth Amendment right
to present witnesses to establish a defense when it failed to compel Dr. Peretti’s attendance
during the defense’s case-in-chief or to continue the trial until Dr. Peretti was available.
Fowler also argues that Dr. Peretti “inculpated” him and that he (Fowler) was “deprived of
the opportunity to refute certain material allegations . . . that Dr. Peretti advanced during
the State’s case in chief.” Fowler contends that the State had a duty to assist the defense in
securing Dr. Peretti’s presence and that the circuit court should have granted a continuance.
Contrary to Fowler’s argument on appeal, he failed to argue below that denying his
request to call Dr. Peretti during the defense’s case-in-chief violated his Sixth Amendment
rights, nor did he request a continuance when it was clear that Dr. Peretti was unavailable
to testify. Therefore, these arguments are not preserved for our review. See Lewis, supra.
Also, Fowler’s contention that he was “inculpated” by Dr. Peretti is completely baseless; we
can find no evidence of this in the record, and he (Fowler) has failed to provide a citation
to either the abstract or the record to support this contention. Moreover, Dr. Peretti made
it very clear that he did not know who shot Stevie Thomas and that, as a forensic pathologist,
he was concerned only with how death occurred, not who did it or why they did it. We
therefore affirm on this point.
Fowler’s final argument is that the circuit court erred in enhancing Fowler’s sentence
based on use of a firearm. Arkansas Code Annotated section 16-90-120(a) (Repl. 2013)
provides as follows:
Any person convicted of any offense that is classified by the laws of this state
as a felony who employed any firearm of any character as a means of
committing or escaping from the felony, in the discretion of the sentencing
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court, may be subjected to an additional period of confinement in the state
penitentiary for a period not to exceed fifteen (15) years.
In this case, the jury found that Fowler employed a firearm as a means of committing first-
degree murder and recommended an additional sentence of fifteen years’ imprisonment.
On appeal, Fowler argues that the State failed to prove that he used a firearm to kill
the decedent. He asserts that no witness testified that he possessed a firearm or that he shot
the decedent and that the State failed to produce the firearm allegedly used by Fowler to
shoot the decedent. However, because we are affirming Fowler’s conviction for the first-
degree murder of Stevie Thomas, and Thomas was killed by multiple gunshots wounds, we
hold that there is no merit in Fowler’s argument that there was no proof that he used a
firearm to kill the decedent.
Affirmed.
ABRAMSON and BROWN, JJ., agree.
Teresa Bloodman, for appellant.
Dustin McDaniel, Att’y Gen., by: Eileen W. Harrison, Ass’t Att’y Gen., for appellee.
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