Bly v. State, CR
| Decision Date | 28 January 1980 |
| Docket Number | No. CR,CR |
| Parties | Larry Bee BLY, Appellant, v. STATE of Arkansas, Appellee. 79-108. |
| Court | Arkansas Supreme Court |
John M. Bynum, Robert E. Irwin, Russellville, for appellant.
Steve Clark, Atty. Gen. by Dennis R. Molock, Asst. Atty. Gen., Little Rock, for appellee.
Appellant was convicted of murder in the first degree and sentenced to life in prison. This was a retrial of the prior conviction of capital felony murder which was reversed by this Court in Bly v. State, 263 Ark. 138, 562 S.W.2d 605 (1978). On appeal he alleges 8 points for reversal. We will deal with them in the order of appearance in the brief. The points argued generally deal with lack of corroboration, collateral estoppel, improper offer of evidence, and the introduction of improper evidence. However, we do not find prejudicial error in any of the contentions argued by appellant and therefore affirm the conviction.
Arthur Ed Burns was brutally murdered on October 13, 1976, by means of stab wounds to the heart and having his throat cut. The evidence, except for the testimony of the accomplice, Marty Tumbleson, was circumstantial. The accomplice testified that he was present with the appellant and the victim at the time of the murder. He described how the three of them got together at a service station in Clarksville about 9:00 or 9:30 p. m. on October 13, 1976, and drove around in a white Chevrolet automobile for some time. He described the actions of the appellant in beating the victim, who was 71 years of age, in the back seat of the car. The victim lost a considerable amount of blood while in the automobile. After driving around looking for wine, they eventually stopped on Lake Dardanelle at a location known as Cabin Creek. Appellant removed the victim from the vehicle and took him behind the automobile where he continued to beat him. Appellant then borrowed the accomplice's knife and stabbed Burns in the heart while he was lying on the ground behind the automobile. Following this, the appellant handed the knife to the accomplice, who was 17 years of age, who stabbed the victim in the chest again. Thereafter appellant instructed him to remove the body from the area and cut Burns' throat, which he did. According to the accomplice, they then drove to a place called Minnow Creek where they washed the blood from the automobile with some type of chemical. Tumbleson and the appellant then drove back to Clarksville and arrived at the South Park Service Station where they purchased gas and cigarettes with $2 they had taken from the victim. Then they went to the Caprice Restaurant where they met Jennifer Tumbleson, the accomplice's sister. Although this witness made some four different statements, some of which were inconsistent, we are reciting only his testimony at the trial. He subsequently entered a plea of guilty to murder in the first degree.
Tumbleson testified that he and the appellant, along with his sister Jennifer, left town in the automobile that night. He went to sleep after they had driven for awhile and when he awoke they were at a roadside park. The following morning they drove into Mississippi where they discarded their clothing, which had bloodstains on them, and threw the knife in the Mississippi River. Thereafter they headed back into Arkansas and the accomplice departed the company of the other two at Hazen, Arkansas, and hitchhiked back to Clarksville.
Roger Holman testified he saw the appellant, the victim, and the accomplice at the Save Service Station between 9:00 and 9:30 p. m. on October 13, 1976, in a 1964 cream colored automobile. The accomplice joined the appellant and the victim at the station after the two had arrived in the automobile. When they left the station, about 9:30 p. m., the accomplice was driving the vehicle. He had also noticed a knife strapped to the body of the accomplice. His wife, Patricia Holman, testified essentially to the same facts.
Mervin Ferrish operated the Caprice Restaurant in Clarksville. He observed the appellant and Tumbleson at his place of business about 11:15 p. m. on October 13, 1976. The two of them were in a white Chevrolet automobile. Tumbleson called his sister, Jennifer, over to the automobile where appellant and the accomplice were seated. Jennifer was employed by Ferrish at the restaurant. At that time he advanced her $20. Although she was supposed to return to work the next day, it was two or three weeks before she appeared again.
Alan Ferrish testified he worked at the Caprice Service Station on October 13, 1976. He filled a white Chevrolet automobile gas tank for the appellant, Tumbleson and Jennifer shortly after 11:00 p. m. on the same date. He observed the three of them leave in the vehicle.
On October 15, 1976, Chesley Shirrod, a junk dealer in Memphis, purchased a 1964 white Chevrolet automobile from Jennifer and the appellant. He paid the sum of $50 and received a bill of sale after Jennifer exhibited ownership papers to him. Shirrod identified appellant at the trial as the man who was with Jennifer when he purchased the car. He kept the car a week or so and turned it over to a Mr. Goza who was interested in purchasing the vehicle. He testified the vehicle was not altered in any manner while he had it in his possession.
Don Goza testified he took possession of the car from Shirrod about the middle of October 1976 and took it deer hunting the following day. The car was subsequently confiscated by the Arkansas State Police. He thought the vehicle was picked up by the police a few days after it came into his possession.
Bill Bounds, a member of the Arkansas State Police, investigated some of the events of this crime. He took possession of the automobile in question on November 9, 1976, and had it towed to West Memphis where he examined it in detail for evidence. He noticed some discoloration in the back seat and on the floor board. He took samples of the fabric from the seat and from the floor mat. These samples were marked for identification and turned over to the state toxicologist for laboratory analysis.
Berwin Monroe, Chief Criminologist for the State of Arkansas, testified he analyzed the samples received from Bounds and found traces of human blood in the exhibits, which he identified at the trial.
Doug Stephens, an investigator for the Arkansas State Police, aided in the investigation of this matter. He visited the scene of the crime and obtained pictures of the body and of the surrounding territory before the body was moved. He also drew diagrams or sketches of the area which he admitted were not to scale. His investigation commenced on October 16, 1976. He described the scene to the jury and exhibited the pictures which were introduced into evidence. He further described the nature of the wounds on the body of the victim.
Sheriff Meek assisted in the investigation and his testimony was essentially the same as that of Doug Stephens.
Rodney Carlton, then State Medical Examiner, performed an autopsy. He found bruises and scratches about the face of the victim. He also described the stab wounds to the chest and the wound to the throat of the victim. It was his feeling the wounds to the chest initiated the victim's death. He further stated the throat wound revealed the trachea, carotid arteries and jugular vein were damaged. He also found the victim's blood alcohol content was 0.19 percent by weight.
THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUSTAIN THE CONVICTION SINCE TUMBLESON WAS AN ACCOMPLICE AND HIS TESTIMONY WAS NOT CORROBORATED BY OTHER EVIDENCE TENDING TO CONNECT BLY WITH THE COMMISSION OF THE CRIME.
Tumbleson described every detail of the event, including the crime scene and the flight. There is no doubt his testimony alone would support the conviction of the appellant were it not for the rule that a conviction cannot stand upon the uncorroborated testimony of an accomplice. Ark.Stat.Ann. § 43-2116 (Repl.1977). We must examine the record to see if such corroboration existed in this case. The corroborating evidence must tend to connect the accused with the crime and must be independent of the evidence given by the accomplice. Froman v. State, 232 Ark. 697, 339 S.W.2d 601 (1960); Burnett v. State, 262 Ark. 235, 556 S.W.2d 653 (1977), cert. denied 435 U.S. 944, 98 S.Ct. 1525, 55 L.Ed.2d 540 (1978). Corroborating evidence may be circumstantial so long as it is substantial. Olles v. State, 260 Ark. 571, 542 S.W.2d 755 (1976). A test on the sufficiency of corroborating testimony of an accomplice is if the accomplice's testimony were eliminated from the case, would the other testimony establish the commission of the offense and the connection of the accused therewith. Froman, supra. The independent evidence itself need not be of such substantial character as to support a conviction without the testimony of the accomplice. Shipp v. State, 241 Ark. 120, 406 S.W.2d 361 (1966); Gardner v. State, 263 Ark. 739, 569 S.W.2d 74 (1978), cert. denied 440 U.S. 911, 99 S.Ct. 1224, 59 L.Ed.2d 460 (1979).
Several witnesses saw the appellant, Tumbleson and Burns drive away in a 1964 Chevrolet about 9:30 p. m. on the date of the murder. Other witnesses saw appellant and Tumbleson return to the same area in a white Chevrolet about 11:00 p. m. on the same day. The victim was not with them when they returned. Witnesses also saw the appellant, Tumbleson and Jennifer drive away from Clarksville shortly thereafter. Mr. Shirrod testified he purchased the car in Memphis on October 15, 1976. Jennifer Tumbleson had ownership papers to the vehicle and executed a bill of sale. This evidence was introduced at the trial. We have held the flight by an accused is a circumstance to be considered in determining his guilt. Murphy v. State, 255 Ark. 90, 498 S.W.2d 884 (1973); Centeno v. State, 260 Ark. 17, 537 S.W.2d 368 (1976). The evidence of human blood on the samples taken from the...
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