915 S.W.2d 248 (Ark. 1996), 95-903, Passley v. State

Docket Nº:CR 95-903.
Citation:915 S.W.2d 248, 323 Ark. 301
Opinion Judge:[19] The opinion of the court was delivered by: Andree Layton Roaf, Justice.
Party Name:Thomas Roy PASSLEY, Jr. a/k/a Douglas Lee Bolkema, Appellant, v. STATE of Arkansas, Appellee.
Attorney:[17] Kent McLemore, for appellant. [18] Winston Bryant, Att'y Gen., by: Kent G. Holt, Asst. Att'y Gen., for appellee.
Case Date:February 05, 1996
Court:Supreme Court of Arkansas
 
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Page 248

915 S.W.2d 248 (Ark. 1996)

323 Ark. 301

Thomas Roy PASSLEY, Jr. a/k/a Douglas Lee Bolkema, Appellant,

v.

STATE of Arkansas, Appellee.

No. CR 95-903.

Supreme Court of Arkansas.

Feb. 5, 1996.

Page 249

[323 Ark. 303] Appeal from the Washington County Circuit Court, No. CR94-452; Hon. Kim Smith, Judge.

Kent McLemore, Fayetteville, for appellant.

Kent G. Holt, Asst. Attorney General, Little Rock, for appellee.

ROAF, Justice.

Appellant Thomas Roy Passley, Jr., was convicted of eleven counts of residential burglary and nine counts of theft of property for crimes committed over a two day period. He was sentenced as an habitual offender to eighty years imprisonment. On appeal, Passley asserts that the trial court (1) abused its discretion in failing to sever the March 15, 1994, burglaries from the March 16, 1994, burglaries, (2) abused its discretion by allowing the introduction of a tape of a "911" call in violation of A.R.E. Rule 403, and (3) erred in failing to grant Passley's motions for directed verdict. We affirm.

Ms. Peggy Swingel testified that at approximately 1:50 p.m. on March 16, 1994, someone began ringing her doorbell, but she did not answer the door. Subsequently, someone began kicking the back door. She entered her living room in order to reach a cordless telephone, and she could see that someone was in her kitchen. She called "911," and the intruders left her home. She reported that two men just left her home in a gray or blue-gray car, possibly a Thunderbird. Jovey Marshall of the Washington County Sheriff's Office testified that he received the "911" call at approximately 1:50 p.m. and a Thunderbird was stopped at [323 Ark. 304] approximately 1:54 p.m.

Morton Marshall, Farmington Chief of Police, was dispatched in response to the call and he encountered a blue Thunderbird. Chief Marshall pursued the vehicle and observed that there were two women and two men in the vehicle. After the vehicle stopped, the two men escaped. Co-defendants Michelle Vincent and Tammy Johnson a/k/a Lisa Faye Bradish were apprehended in the Thunderbird. The two men, the appellant and Warren (Morn) Franklin Passley III, were captured approximately ten minutes later.

The appellant a/k/a Douglas Lee Bolkema and the three co-defendants were charged by felony information with thirteen counts of burglary and twelve counts of theft of property. The crimes were allegedly committed on February 7, 1994, March 4, 1994, March 15, 1994, and March 16, 1994. The information alleged that the defendants entered homes on February 7 and March 4 and took property valued in excess of $2,500.00. The information provided that on March 15 the defendants burglarized six homes and on March 16 the defendants burglarized four homes. Further, the information alleged that the defendants took property valued in excess of $2,500.00 from five of the homes; property valued in excess of $200.00 from three of the homes; and property valued at less than $200.00 from two of the homes. Finally, the information charged the defendants with burglary for entering the home of Peggy Swingel on March 16.

Page 250

The Thunderbird in which the defendants were riding was owned by Tammy Johnson, the appellant's wife. A number of items from the burglaries committed on March 15 and March 16 were found either in pillow cases in the trunk of the car or in the possession of the defendants. A ring, watch, and knife were found on the appellant when he was apprehended. The ring was identified as one taken in a March 16th burglary, and the knife and watch were identified as taken in a March 15th burglary. Property taken on those dates from seven other homes was also recovered from either the Thunderbird or the co-defendants.

Mrs. Marjie Million testified that Tammy Johnson is her niece. Mrs. Million further testified that Tammy Johnson, Thomas Roy Passley, Jr., Warren Franklin Passley III, and Michelle Vincent stayed in her home on March 15 and March [323 Ark. 305] 16, 1994. A Ford Mustang owned by Warren Passley was recovered from the Million residence. Property belonging to victims of both the March 15 and March 16 burglaries was recovered from either the Mustang or the Million's residence.

Ms. Swingel identified Tammy Johnson's Thunderbird as the vehicle that she observed the day her home...

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