McDole v. State

• Decision Date: 02 December 1999
• Docket Number: 99-332
• Citation: 6 S.W.3d 74
• Parties: John Mark McDOLE v. STATE of Arkansas CR 99-332 ___ S.W.3d ___ Opinion delivered
• Court: Arkansas Supreme Court

John Mark McDOLE v STATE of Arkansas

CR 99-332 ___ S.W.3d ___

Opinion delivered December 2, 1999

Supreme Court of Arkansas

Appeal from Baxter Circuit Court; Robert W. McCorkindale II, Judge; affirmed.

1. Motions -- denial of directed-verdict motion -- standard of review. -- A directed-verdict motion is a challenge to the sufficiency of the evidence; the test for determining sufficiency of the evidence is whether there is substantial evidence to support the verdict; on appeal, the evidence is viewed in the light most favorable to the appellee and the conviction sustained if there is any substantial evidence to support the verdict; evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture; only evidence supporting the verdict will be considered.

2. Evidence -- circumstantial evidence -- may be sufficient for conviction. -- When reviewing for sufficiency of the evidence, there is no distinction between circumstantial and direct evidence; however, for circumstantial evidence to be sufficient, it must exclude every other reasonable hypothesis consistent with innocence; whether the evidence excludes every hypothesis is left to the jury to determine; guilt may be proved in the absence of eyewitness testimony, and evidence of guilt is not less because it is circumstantial.

3. Evidence -- circumstantial evidence rises above suspicion and conjecture -- left to jury to decide whether evidence excludes every other reasonable hypothesis. -- When circumstantial evidence rises above suspicion and is properly connected, and when, viewing that evidence in the light most favorable to the state, the jury is not left to speculation and conjecture alone in arriving at its conclusions, it is basically a question for the jury to determine whether the evidence excludes every other reasonable hypothesis; it is only every other reasonable hypothesis, not every hypothesis, that must be excluded by the evidence.

4. Evidence -- substantial evidence -- conviction supported by. -- Where the evidence, including the testimony of several witnesses, when viewed in a light most favorable to the State, could be properly connected and did not leave the jury to speculation or conjecture, substantial evidence supported the jury's verdict.

5. Statutes -- presumed constitutional -- burden on party challenging law. -- Arkansas's statutes are presumed constitutional, and the burden of proving otherwise is placedon the party challenging the legislative enactment; all doubts are resolved in favor of a statute's constitutionality.

6. Statutes -- right to take depositions -- rests on statutory authority. -- The right to take depositions rests upon statutory authority; in no case can the right be exercised unless the authority therefor exists.

7. Witnesses -- constitutional right to obtain witnesses in defendant's favor -- no constitutional requirement that one who cannot give material evidence be offered as witness. -- Under Article 2, section 10, of the Arkansas Constitution, a criminal defendant is entitled to "compulsory process for obtaining witnesses in his favor"; this constitutional guaranty does not require that every witness who has knowledge of relevant facts testify; nor does it guarantee the accused that a victim, accuser, complainant, complaining witness, or private prosecutor will be called as a witness or appear at the trial; the establishment of the elements of the crime by the testimony of other witnesses does not constitute a variance from an indictment naming the victim; there is no constitutional requirement that one who has no personal knowledge of relevant facts and cannot give material evidence concerning the crime be offered as a witness or appear at the trial.

8. Criminal law -- pretrial discovery -- no constitutional right to. -- There is no constitutional right to pretrial discovery; neither the Sixth Amendment nor the due process clause of the Fourteenth Amendment requires a State to provide pretrial depositions; there is no general constitutional right to discovery in a criminal case; the right to confrontation is a trial right, designed to prevent improper restrictions on the types of questions that defense counsel may ask during cross-examination; the ability to question adverse witnesses, however, does not include the power to require the pretrial disclosure of any and all information that might be useful in contradicting unfavorable testimony; normally the right to confront one's accusers is satisfied if defense counsel receives wide latitude at trial to question witnesses.

9. Constitutional law -- Equal Protection Clause -- does not mandate that civil and criminal defendants have equal discovery rights. -- The Equal Protection Clause does not require that civil and criminal defendants have identical discovery rights; equal protection does not require that persons be dealt with identically, it only requires that classification rest on real and not feigned differences, that the distinctions have some relevance to the purpose for which the classification is made, and that their treatment not be so disparate as to be arbitrary; the issue of equal protection involves whether people in the same situation are being treated differently; while both criminal and civil defendants may be called litigants, they are far from similarly situated.

10. Criminal procedure -- rights under Ark. R. Crim. P. 28.1(a) --issue moot. -- Appellant's assertion that he was not released at nine months pursuant to Ark. R. Crim. P. 28.1(a) and that charges against him therefore should be dismissed with prejudice, which was raised on direct appeal after trial and conviction, was moot; a person held in violation of Rule 28.1(a) is only entitled to release on his or her own recognizance, not dismissal of the charges or absolute discharge.

11. Judges -- recusal discretionary -- no abuse of discretion. -- The decision to recuse is within the trial court's discretion, and it will not be reversed absent abuse; an abuse of discretion can be proved by a showing of bias or prejudice on the part of the trial court; appellant has made no such showing.

12. Appeal & error -- argument not raised below -- not considered for first time on appeal. -- Where the trial court was not apprised by appellant of the particular error argued on appeal, it was not be considered; the supreme court will not consider an argument raised for the first time on appeal; to preserve an argument for appeal, there must be an objection in the trial court that is sufficient to apprise the court of the particular error alleged, and the appellate court will not address arguments raised for the first time on appeal; a party cannot change the grounds for an objection or motion on appeal but is bound by the scope and nature of the arguments made at trial.

Christopher Carter, Public Defender, for appellant.

Mark Pryor, Att'y Gen., by: Brad Newman, Asst. Att'y Gen., for appellee.

Lavenski R. Smith, Justice.

John Mark McDole ("McDole")appeals his conviction for first-degree murder and sentence of life in prison from the Baxter County Circuit Court. McDole raises four points for reversal on appeal. First, he challenges the sufficiency of the evidence to proof he committed first-degree murder. Second, he contends that Arkansas Code Annotated Section 16-44-201 violates a defendant's Sixth and Fourteenth Amendment right to counsel. Third, McDole argues that the trial court erred in not releasing him prior to trial after he had been incarcerated for nine months. Finally, McDole asserts that the trial court erred by admitting evidence of a potentially incriminating statement made five months prior to the murder. After a thorough review of the record, we find no error and affirm. Our jurisdiction is pursuant to Sup. Ct. R. 1-2(a)(2) in that McDole received a sentence of life imprisonment.

Facts

The relevant facts began with the Baxter County Sheriff's office investigation of a report of a burning truck on August 22, 1997. Their investigation identified the registered owner of the truck to be Alma Teagarten ("Alma"). Upon questioning, Alma informed them that she had given her former daughter-in-law, Kelly Keehn Teagarten ("Kelly"), permission to drive the truck. Further investigation revealed that Willis Teagarten ("Willis"), Kelly's ex-husband and son of Alma, filed a missing person report on Kellyon the evening of August 22, 1997. On August 23, 1997, Mountain Home Police responded to a call at a local motel where the clerk reported that a guest wished to speak with police. Upon arrival, Appellant McDole stated to the officer that he had a "hit list," and he exclaimed that he needed to warn others on the list because some had already been killed. The officer noticed Kelly's name on the list, and the list indicated that she had already "been erased." McDole sought police aid to warn other people. Later, McDole told police his brother Paul had made up the list and hired a hit man to carry out the killings. McDole then fled from the motel in an automobile but other officers directed him off the road into the parking lot of a nearby restaurant. Appellant left his vehicle and began shouting about someone across the street having a gun. Appellant then yelled at people nearby that the police intended to kill him. Police arrested McDole for disorderly conduct and placed him in jail.

On Sunday, August 24, 1997, Baxter County deputies discovered the body of Kelly Keehn Teagarten at the Shipp's Ferry landing in Baxter County near the White River. Her body had two gunshot wounds, a contact shot to the back of the head and a shot into the left side of the back. Medical testimony indicated Kelly Keehn Teagarten was murdered on August 21 or 22, 1997.

II.

Sufficiency of the Evidence

Appellant alleges the trial court convicted him based upon evidence insufficient to establish first-degree murder....