Ayers v. State

• Decision Date: 17 September 1998
• Docket Number: No. CR,CR
• Citation: 975 S.W.2d 88,334 Ark. 258
• Court: Arkansas Supreme Court
• Parties: Antonio AYERS, Appellant, v. STATE of Arkansas, Appellee. 97-368.

Page 88

975 S.W.2d 88

334 Ark. 258

Antonio AYERS, Appellant, v. STATE of Arkansas, Appellee.

No. CR 97-368.

Supreme Court of Arkansas.

Sept. 17, 1998.

R.S. McCullough, Gail Anderson, Little Rock, for Appellant.

Winston Bryant, Atty. Gen., Brad Newman, Asst. Atty. Gen., Little Rock, for Appellee.

ARNOLD, Chief Justice.

The appellant, Antonio Ayers, was convicted of capital murder and theft of property in excess of $2,500.00, for the February 25, 1995, murder of William Hall and subsequent taking of Hall's vehicle. Mr. Ayers was sentenced to life imprisonment without parole on the charge of capital murder and twenty years in the Arkansas Department of Correction on the charge of theft of property. Mr. Ayers asserts five points on appeal. First, Ayers contends that the trial court erred by admitting Wayne Eatmon's testimony describing what he saw and heard while observing the homicide with which Ayers was charged. Second, Ayers contends that the trial court erred by allowing, during the trial, a reference to "possible blood." Third, Ayers contends that the trial court erred by not granting his motion to dismiss the charge of theft of property, contending that the State failed to offer sufficient proof of value. Fourth, Ayers argues that the trial court violated his Fourth, Sixth, and Fourteenth Amendment rights by refusing to allow him to call the deputy prosecutor as a witness. Fifth, Ayers asserts that the trial judge erred by not recusing in this matter. Finding no merit in appellant's arguments, we affirm his conviction and sentence.

Sometime between 12:00 midnight, February 24, 1995, and 1:00 a.m., February 25, 1995, in the parking lot of the Whisperwood Apartments on Baseline Road in Little Rock, appellant Antonio Ayers and William Hall were involved in an argument. As the argument intensified, Ayers drew a gun and shot Hall once in the chest and once in the back, as Hall tried to run away. Hall continued running from Ayers, but Ayers caught up with Hall and began kicking him and beating him until Hall was left lying on the parking lot. Ayers then left but returned in Hall's vehicle and drove over Hall's body. Ayers then fled the scene in Hall's vehicle, leaving Hall for dead.

Prior to trial, appellant moved that the trial judge recuse in the case. This request was denied and was never renewed again. Also prior to trial, appellant filed a motion in limine to suppress the testimony of Wayne Eatmon, a witness who would testify that the night of the murder, while he was present at Whisperwood Apartments, he heard someone make the statement, "No, Antonio, don't." He could not, however, identify whose voice it was. As the basis of appellant's objection was relevance under Rule 403, the judge withheld ruling on this motion until the issue arose at trial. At the appropriate time during the trial, appellant again objected to Eatmon's testimony on the basis of relevance. The trial court overruled the objection and allowed the State to present the testimony.

During the trial, appellant objected to testimony from Annette Tracy, a crime-scene specialist with the Crime Scene Search Unit of the Little Rock Police Department, concerning "possible blood" found on the underneath side of the victim's vehicle. The trial court overruled appellant's objection and allowed the State to present the testimony. Also during the trial, appellant requested to call John Johnson, a deputy prosecuting attorney prosecuting this case, as a witness. The trial court denied that request.

Finally, at the close of the case, appellant moved to dismiss the charge of theft of property, contending that the State had offered no proof of value. The trial court denied the motion. From these findings and appellant's convictions, comes the instant appeal.

I. Admission of Testimony

A. Testimony of Wayne Eatmon

Appellant claims that the trial court erred by admitting testimony by eyewitness Wayne Eatmon that he heard someone say, "No, Antonio, don't," just before the victim was shot and killed. Antonio is appellant's first name. Appellant asserts that the admission of this testimony was improper because the speaker's voice was not identified or authenticated under Arkansas Rule of Evidence 901. Appellant, however, never objected in the trial court on the basis of Rule 901.

At a pretrial hearing, the trial court considered appellant's motion in limine to exclude Eatmon's testimony. In response to a question by the court as to the nature of his objection, appellant's attorney stated, "Relevance, and unduly prejudicial, all under [Arkansas Rule of Evidence] 403." Because the basis of the objection was relevance under Rule 403, the judge withheld ruling on the motion until the issue arose at trial.

Before Eatmon took the stand at trial, his testimony was proffered at a hearing outside the presence of the jury. In the proffer, Eatmon testified that he lived at the apartment complex where the shooting occurred. He was awakened by an altercation taking place in the parking lot. He looked out of his window and saw two men fighting. He could tell that one of the men was black, but could not determine the race of the other man, due to the lighting. Eatmon testified that he saw the black man pull something out of his pocket and point it at the other man. Eatmon heard someone say, "No, Antonio, don't." Next, he saw three "flashes" coming from the extended arm of the black man and heard three "pops."

Appellant again objected to Eatmon testifying at trial on the basis that his testimony would be unduly prejudicial, misleading, and confusing to the jury under Arkansas Rule of Evidence 403. The court overruled appellant's objection and ruled that Eatmon could testify. At no time did appellant ever make a specific objection based on Arkansas Rule of Evidence 901 or mention lack of foundation or authentication.

We have stated on numerous occasions that we will not consider an argument raised for the first time on appeal. Slaton v. Slaton, 330 Ark. 287, 956 S.W.2d 150 (1997); McGhee v. State, 330 Ark. 38, 954 S.W.2d 206 (1997). 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. Love v. State, 324 Ark. 526, 922 S.W.2d 701 (1996). 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. Henderson v. State, 329 Ark. 526, 953 S.W.2d 26 (1997).

Even if Rule 901 were to apply to this situation, appellant never objected on the basis of Rule 901 below. His objection was made solely on the basis of relevancy under Rule 403. His entire argument on appeal, however, is based on Rule 901. Because he has changed the basis of his objection on appeal, this Court will not consider his argument on this point.

B. Testimony regarding "possible blood"

At trial, the State presented evidence showing that after appellant shot the victim, William Hall, appellant got into Hall's vehicle and drove over Hall. It is important to note that appellant does not challenge the sufficiency of the State's evidence on appeal. During the State's direct examination of Annette Tracy, a crime-scene specialist with the Little Rock Police Department, the deputy prosecutor asked Tracy to identify State's Exhibit 25. Tracy described the exhibit as a photograph of the underside of Hall's vehicle with "what appears to be possible blood" on the oil pan. The State then moved to admit the photograph.

Appellant objected to the admission of the exhibit, claiming that it was not relevant and was unduly prejudicial because Tracy had described only "possible blood." The deputy prosecutor stated that subsequent evidence would show that samples collected from the underside of the car were identified as human blood of the victim's blood type. On that basis, the trial court admitted the photograph.

Subsequently at trial, Scott Sherill, a forensic serologist with the State Crime Lab, testified that the substance shown in State's Exhibit 25 was human blood but that he was not able to determine the blood type. Appellant then moved for a mistrial on the basis that the State had presented no evidence connecting the blood found underneath the car to the victim. The judge denied that motion, and appellant then moved to have the evidence "unadmitted." The judge also denied that request, along with a request to admonish the jury to ignore the evidence.

Appellant relies on Brenk v. State, 311 Ark. 579, 847 S.W.2d 1 (1993), to support his contention that the reference to "possible blood" requires reversal because the blood found underneath Hall's car was not conclusively proven to be Hall's own blood. Appellant mischaracterizes this Court's ruling in Brenk. The Brenk case confronted the issue of whether evidence of luminol testing should be allowed in light of the fact that luminol does not distinguish between certain metals, vegetable matter, human blood, or animal blood. This Court held that evidence about the use of luminol would not be admissible unless additional tests showed that the substance tested was human blood related to the alleged crime. Brenk clearly does not apply to the facts of the instant case because luminol was not used and because serological testing showed that the substance found underneath Hall's car was, in fact, human blood.

Appellant also relies on the case of Palmer v. State, 315 Ark. 696, 870 S.W.2d 385 (1994). Similarly, appellant's reliance on Palmer is misplaced because it also refers to the use of luminol evidence at trial. Furthermore, there was no evidence in that case to show that the victim had ever even been in the bedroom of a house where the substance was detected by the use of luminol. Still, as in the present case, Sherill was able to identify human blood, but not blood type. The fatal flaw in Palmer was not the inability to establish the blood type but rather the lack of proof that...