Brown v. State

• Decision Date: 10 January 1994
• Docket Number: No. CR,CR
• Citation: 869 S.W.2d 9,315 Ark. 466
• Parties: John BROWN, Jr., Appellant, v. STATE of Arkansas, Appellee. Reginald EARLY and Tina Jimerson, Appellants, v. STATE of Arkansas, Appellee. 93-189.
• Court: Arkansas Supreme Court

Page 9

869 S.W.2d 9

315 Ark. 466

John BROWN, Jr., Appellant, v. STATE of Arkansas, Appellee.

Reginald EARLY and Tina Jimerson, Appellants, v. STATE of Arkansas, Appellee.

No. CR 93-189.

Supreme Court of Arkansas.

Jan. 10, 1994.

William M. Howard, Jr., Pine Bluff, for Early and Jimerson.

Robert N. Jeffrey, Sheridan, for John Brown, Jr.

Gil Dudley, Asst. Atty. Gen., Little Rock, for appellee.

DUDLEY, Justice.

Myrtle Holmes was found murdered on September 22, 1988. The evidence at the scene showed that she had been beaten and stabbed while inside her home and that her body was then placed in the trunk of her car. A year and one-half later, on March 16, 1991, the State charged Charlie Vaughn, and appellants John Brown, Jr. and Reginald Early, with capital murder in three separate informations. A little over a week later, on March 25, 1991, Charlie Vaughn pleaded guilty to murder in the first degree and was sentenced to life in prison. Vaughn's guilty plea implicated appellants Brown and Early and also implicated appellant Tina Jimerson. On March 27, 1991, appellant Tina Jimerson was charged as an accomplice in a separate information. On July 12, 1991, the State moved to consolidate the cases since all three would require proof of the same facts. On July 19, 1991, separate defendant Tina Jimerson objected to consolidation, and, at the same time, moved for a severance. In an order dated July 17, and entered on July 23, 1991, the trial court ordered the cases consolidated for trial purposes. A jury trial ended in a mistrial. The informations were amended to charge appellants with first degree murder and aggravated robbery. A jury returned verdicts of guilty for all three appellants on both charges and sentenced each to life in prison on both of the charges. Appellants Early and Jimerson, together, have filed an appeal, and appellant Brown has filed a separate appeal. We have consolidated the appeals and address all assignments of error in this one opinion. There is no reversible error, and we affirm the three judgments of conviction on both charges.

We first address appellant Brown's points of appeal. He initially argues that the trial court erred in denying his motion for a directed verdict on the ground that accomplice Vaughn's testimony was not corroborated. Even though independent evidence indicated that appellant Brown was near the victim's home in Fordyce about the time of the murder and also showed that, immediately after the murder, he had blood on his clothes, and even though another witness testified that she overheard appellant Brown tell what he had done to the victim, we do not reach the argument because appellant did not raise lack of corroboration as a ground for a directed verdict, and he cannot raise it for the first time on appeal. Pilcher v. State, 303 Ark. 335, 796 S.W.2d 845 (1990). The record shows that at the close of the State's case he moved for a directed verdict without specifying a ground, and, at the close of all the evidence, he moved for a directed verdict on the grounds that "there was no physical evidence ... tying [appellant Brown] to this alleged crime and there was no witness placing him at the scene." Appellant Brown did not make an argument about accomplice corroboration, did not ask the trial court to declare Vaughn an accomplice, and did not ask the trial court to charge the jury about the necessity of accomplice corroboration. See AMI Crim. 401 and 402.

Appellant Brown's second argument is that the trial court erred in not granting his motion to dismiss because of prosecutorial delay in filing charges. The argument is without merit both procedurally and substantively. Procedurally, the trial court ordered that all pre-trial motions be filed by June 26, 1992, in order that hearings, if necessary, could be held before the scheduled trial date. Even though this motion to dismiss was clearly a matter that would require proof, it was not filed until the second day of trial, and the trial court correctly ruled that it was not timely filed. See Summers v. State, 292 Ark. 237, 729 S.W.2d 147 (1987). Substantively, the limited proof on the matter showed that the investigation of the crime was ongoing until the information was filed in March 1990, and prejudice to appellant was not established. See Bennett v. State, 302 Ark. 179, 789 S.W.2d 436, cert. denied, 498 U.S. 851, 111 S.Ct. 144, 112 L.Ed.2d 110 (1990). In sum, appellant Brown's assignments of error are without merit.

Appellant Tina Jimerson's first point is that the trial court erred in refusing to sever her trial from that of the other appellants. The record shows that on July 19, 1991, she objected to the consolidation and, at the same time, moved for a severance. The trial court ordered the cases consolidated. The trial court signed the order of consolidation on July 17, and it was entered on July 23, 1991, but appellant Jimerson never again raised the issue.

Appellant Jimerson cannot now challenge the denial of her pretrial motion for severance. Rule 22.1(b) of the Arkansas Rules of Criminal Procedure provides that "[i]f a defendant's pretrial motion for severance was overruled, he may renew the motion on the same grounds before or at the close of all the evidence. Severance is waived by failure to renew the motion." Appellant Jimerson failed to renew the motion at the trial in August 1992 and, under the rule, waived any right to a severance. Lunon v. State, 264 Ark. 188, 569 S.W.2d 663 (1978).

Next, appellants Jimerson and Early together argue that the trial court erred in allowing the testimony of a witness named Michael Early. The facts surrounding the argument are as follows. The prosecuting attorney listed Michael Early as a witness for the State and five days before trial gave appellants a copy of a statement made by Early. At the trial the prosecutor asked Early about matters that were not contained in the statement. Appellants argue that they were misled by the prosecutor's actions and, as a result, were not prepared for the witness's testimony. Therefore, appellants assert the trial court erred in refusing to exclude any testimony about any subject not included in the statement. The argument is wholly without...