Brockwell v. State

• Decision Date: 20 December 1976
• Docket Number: No. CR,CR
• Citation: 545 S.W.2d 60,260 Ark. 807
• Parties: Dewey BROCKWELL, Appellant, v. STATE of Arkansas, Appellee. 76--32.
• Court: Arkansas Supreme Court

Page 60

545 S.W.2d 60

260 Ark. 807

Dewey BROCKWELL, Appellant, v. STATE of Arkansas, Appellee.

No. CR 76--32.

Supreme Court of Arkansas, In Banc.

Dec. 20, 1976.

John F. Gibson, Jr., Dermott, for appellant.

Jim Guy Tucker, Atty. Gen. by Jackson Jones, Asst. Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Justice.

Appellant was convicted of second degree murder for the killing of his son-in-law, Walter Griffin, by shooting him with a 12 gauge shotgun loaded with buckshot. Brockwell and his wife lived next door to their daughter and son-in-law in McGehee. The killing took place as Griffin approached the front door of the Brockwell house, where his wife, Goldie Griffin, had gone with her mother on the preceding day. Goldie Griffin was ill at the time and died before the trial. Appellant's defense was that he acted in defense of his habitation. He urges 20 points for reversal, most of which merit little discussion. We do find reversible error in the court's failure to sustain appellant's objection to the prosecuting attorney's cross-examination of him.

Appellant had testified that his daughter was ill and had been released from the hospital just a few days earlier and had first come to the Brockwell house, but had gone to the Griffin house just two days prior to the day of the killing. On the evening of that same day, according to Brockwell, his wife had brought their daughter back to the Brockwell house and Griffin had followed them at a distance of about two and one-half feet, cursing and raging. Brockwell said he had latched the storm door at the front of the Brockwell house after his wife and daughter entered and Griffin had threatened to tear it down and come into the house. Brockwell stated that when he closed and latched the main door, Griffin left and Mrs. Brockwell called the police. Brockwell said that he watched and saw that Griffin had turned out all the lights in the Griffin house. Brockwell told of the steps taken by him and his daughter to institute 'peace bond' proceedings against Griffin the following day. On still the next day he stated that Griffin returned home from work, sent for his wife, and, when she didn't come, came out and said that if she were not back home in 15 minutes, he would come back, tear the door down and get her. Then, Brockwell said, Griffin left, after having upbraided his wife on the telephone for having taken his gun, telling her he could get another. He stated that Griffin promptly got in his car and 'took off,' spinning his wheels, but returned in about one and one-half hours and sat on his front steps drinking beer, after which the five-year-old son of the Griffins came into the Brockwell house and reported that his daddy had said that, if he came back to the Brockwell house, 'it would be rough.' Brockwell said that Griffin sat on his own porch for about 15 minutes and then started toward the Brockwell house.

Brockwell testified that he thought Griffin had a gun, but could see only his shirt, not his hands. He said that the shirt hung down pretty long. On cross-examination, Brockwell testified that Griffin's shirttail was out as he approached the Brockwell house. Then the prosecuting attorney showed a photograph to the witness, prompting an objection that the picture had not been introduced in evidence. The prosecuting attorney responded that the photograph was offered for the purpose of impeaching the testimony of the witness, because it clearly showed that 'the man's shirttail was in.' The trial judge permitted the prosecuting attorney to question the witness about the picture without its being shown to the jury. The witness protested that the picture had been taken after the shooting but that he had been unable to see Griffin's hands prior to the shooting. The prosecuting attorney asked if the witness assumed that Griffin tucked his shirt in after the killing. When appellant's attorney objected to any statement by the prosecution that Griffin's shirt was tucked in after the shooting, the prosecuting attorney answered that the witness had testified that the shirttail was out and that if the defendant wanted to introduce the picture, he could do so, and the trial judge stated: 'I'm going to now--This witness testified that his shirttail was hanging out.' The picture was never introduced in evidence, even though the prosecuting attorney had said that it would be if Brockwell could identify it. There was no indication other than the statement of the prosecuting attorney, what it depicted relative to the shooting or when it was taken.

This attempt to impeach the defendant related to a very critical issue in the case. Admissibility of the photograph in evidence depended upon the laying of a foundation showing that it was a fairly accurate representation of the conditions existing at the time in question. Riggan v. Langley, 238 Ark. 649, 383 S.W. 661; Wheeler v. Delco Ben & Broadway Ice Co., 237 Ark. 55, 371 S.W.2d 130. In this case, the picture would not have been admissible, unless it was indicated, in some manner, other than the prosecuting attorney's statement, that it showed Griffin's clothing was arranged substantially as it had been when the shooting occurred, or unless the difference was properly explained. Powell Bros. Truck Lines v. Barnett, 196 Ark. 1082, 121 S.W.2d 116. The prosecuting attorney's statement about what the picture portrayed was not evidence and was patently improper.

Appellant's objection should have been sustained. The statement that appellant could introduce it if he wished certainly did not cure the error, or erase the manifestly prejudicial effect of the prosecuting attorney's statements or the trial court's failure to sustain the objections. It was not appellant's responsibility to lay the foundation for the introduction of the picture; and he should not have been called upon to rebut statements of the prosecuting attorney that are not supported by evidence. It should be noted that the picture was never introduced or offered for identification and, in effect, the witness was impeached on a critical point by the unsupported statement of the prosecuting attorney. Even though leading questions are permissible on cross-examination, an attorney cannot be permitted to make statements of facts in the guise of cross-examination. Nelson v. State, 257 Ark. 1, 513 S.W.2d 496.

Although we find no reversible error on other points, there are matters that will arise on a retrial that we must treat in order to avoid potential reversible error on other points. Even though we consider the record deficient on two points for want of a proper proffer of proof, there are indications that such a proffer would have demonstrated that the trial court erred in excluding testimony about statements made to appellant by his daughter prior to the shooting relating to a telephone conversation between her and her husband and about previous actions and statements of the victim.

Appellant's wife, Marie Brockwell, told of caring for her daughter after she was released from the hospital and said that she had gone to her daughter's house the first night the latter was at her own home and had found her having trouble with her heart and her husband bathing her face and cursing loudly. Mrs. Brockwell testified that she invited her daughter to come to the Brockwell house. Objections to her stating that Griffin grabbed Goldie when she started to arise from her bed were sustained. When asked if she had run into any obstruction in helping her out of the house, an objection to the question was sustained before any answer was given, with the court ruling that the testimony was not admissible because appellant was not present. Subsequently, Mrs. Brockwell testified that her daughter had later talked on the telephone with Griffin. When Mrs. Brockwell was asked what her daughter had repeated to her and whether Brockwell was present at the time, objections were sustained. Appellant's attorney then objected to the court's ruling, arguing that the statement made by Goldie Griffin to her father was admissible to show what she told him and relevant to the determination whether it was sufficient to excite fear of Griffin. Appellant also now suggests that Mrs. Brockwell should have been permitted to testify as to facts she had communicated to her husband which tended to show that Brockwell was acting with reasonable apprehension of danger at the time of the shooting.

A homicide in defense of one's habitation is justifiable. Ark.Stat.Ann. § 41--2231 (Repl.1964). His house or place of residence is, in law, his castle. Ark.Stat.Ann. § 41--2233 (Repl.1964). A manifest attempt and endeavor, in a violent, riotous or tumultuous manner to enter the habitation of another for the purpose of assaulting or offering personal violence to any person dwelling or being therein, is a justification of homicide. Ark.Stat.Ann. § 41--2234 (Repl.1964). To justify a killing, it must appear that the circumstances were sufficient to excite the fears of a reasonable person and that the killer really acted under their influence and not in a spirit of revenge. Ark.Stat.Ann. § 41--2235 (Repl.1964). The burden of proving justification devolves upon the accused, once the killing is established. Ark.Stat.Ann. § 41--2246. Phillips v. Turney, 198 Ark. 364, 129 S.W.2d 963. These statutes are, so far as they extend, a reenactment of the common law and leave the common law, as to the extent, manner and circumstances in or under which the right may be exercised, in force. Carpenter v. State, 62 Ark. 286, 36 S.W. 900.

An assault upon one's house was considered as an assault upon him, at common law. Brown v. State, 55 Ark. 593, 18 S.W. 1051. It is so considered by this court. Hall v. State, 113 Ark. 454, 168 S.W. 1122. Generally speaking, the defense of one's habitation or members of his family ¹ or other persons therein is similar to, and an extension of, the right of self-defense. See Brown v. State, supra; ...