Bussard v. State
Decision Date | 16 October 1989 |
Docket Number | No. CR,CR |
Citation | 300 Ark. 174,778 S.W.2d 213 |
Parties | Ralph BUSSARD, Appellant, v. STATE of Arkansas, Appellee. 89-87. |
Court | Arkansas Supreme Court |
Larry Dean Kissee, Ash Flat, Mark Johnson, Hardy, for appellant.
Mark Johnson, Hardy, for appellee.
Appellant Bussard was previously convicted of capital murder. We reversed and remanded. Bussard v. State, 295 Ark. 72, 747 S.W.2d 71 (1988). He was tried a second time. Again he was convicted of capital murder. He again appeals. There is no merit in any of his five (5) points of appeal and, accordingly, we affirm.
Appellant first argues that the evidence was insufficient to convict him of capital murder. The essential facts are as follows. Arthur Garner and his wife, Florence, operated the Motorport Motel near Hardy. Mrs. Garner testified that on August 28, 1981, around 1:00 to 2:00 a.m., they were asleep in their bedroom, which was next to the motel office, when someone rang the office doorbell. Mr. Garner got up, put on his clothes, and picked up a pistol which was beside a cigar box containing petty cash. He went to a window and asked what was wanted. Mrs. Garner did not hear the response. Mr. Garner then opened the office door. Mrs. Garner heard a shuffling sound and someone whispered, "Shut up, shut up." Immediately thereafter, Mr. Garner was pushed off balance and fell against a chest of drawers back in the bedroom. Mrs. Garner started to get her purse which was on the foot of the bed. By this time Mr. Garner came over by the bed near Mrs. Garner. Someone ran into the bedroom and pointed something at them that looked like a pistol. Mrs. Garner was grabbed by the arm and pulled across the bed and then onto the floor. A man in the bedroom said, "Turn the light on, turn the light on." Another, who was in the office, answered, "It won't go on."
Mr. Garner said, "You can have the money." There was one shot immediately followed by several shots, a pause, and one final shot. Mrs. Garner next heard the sound of people around the bed, people whose actions she described as, "looking for things," and someone said, "Let's get out of here." They left. Although she had been shot twice, Mrs. Garner called the police. They found Mr. Garner shot to death, lying face down in the doorway with a small handgun under his body. The cigar box containing petty cash was missing.
Early that morning Dorothy Hudson, the appellant's sister, received a call informing her that her brother had been shot. Later, her brother and two other men came to her home in Springfield, Missouri. One of the other men had been shot in the throat and her brother had wounds about his chest. She took her brother into her home. She later called an ambulance to have him taken to St. Johns Hospital in Springfield. At St. Johns, a bullet was removed from his back. That bullet was given to the police. A firearms examiner testified that the bullet had been fired from the handgun which was found underneath Mr. Garner.
A person commits capital murder if, alone or with others, he commits or attempts to commit robbery or burglary or other specified felonies, and in the course of one of those felonies, causes the death of any person under circumstances manifesting extreme indifference to the value of human life. Ark.Code Ann. § 5-10-101.
Here, the fact that Arthur Garner was shot to death is not in dispute. The evidence concerning the bullet which was removed from the appellant constituted substantial evidence of appellant's participation in the murder. One need not take an active part in a murder to be convicted of such if the accused accompanied the person or persons who actually committed the murder and assisted in such commission. Hallman v. State, 264 Ark. 900, 575 S.W.2d 688 (1979). The evidence concerning the missing cigar box containing petty cash was substantial evidence of the underlying felony of robbery. See Ark.Code Ann. § 5-12-102 (1987). The circumstantial evidence that the intruders entered the Garner's bedroom for the purpose of committing robbery is substantial evidence of the underlying felony of burglary. See Ark.Code Ann. § 5-39-201 (1987). Thus, the evidence was sufficient to support the conviction for capital felony murder.
Appellant next argues that the trial court erred in admitting into evidence the prior recorded testimony of a witness. His argument sub-divides the point into two issues: (a) whether the State established the unavailability of the witness, and (b) whether the appellant was denied his Sixth Amendment right to confront the witness.
II. (a)
Dorothy Hudson, the appellant's sister, testified for the State at the first trial. The State also wanted her as a witness for the second trial. She lived in Springfield, Missouri. The State attempted to subpoena the witness under the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Cases. Ark.Code Ann. §§ 16-43-402 to 16-43-409. To that end, an Arkansas subpoena was issued and forwarded to the State of Missouri, along with the witness fees. The Circuit Court of Green County, Missouri, held two hearings on the matter. The witness appeared personally at the first hearing, and by attorney at the second. The Missouri court ordered her to appear in Arkansas at the designated time and place. However, the subpoena had not been returned by the trial date.
The general rules concerning unavailable witnesses are not confusing. The definition of "unavailability as a witness" specifically includes situations in which the declarant is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means. A.R.E. Rule 804(a)(5). In addition, the burden of proving the unavailability of the witness is on the party who offers the prior testimony. Lewis v. State, 288 Ark. 595, 709 S.W.2d 56 (1986). A trial judge has some discretion in deciding if a good faith effort was made and whether a witness cannot be procured by process or other "reasonable means." Spears v. State Farm Fire & Cas. Ins., 291 Ark. 465, 725 S.W.2d 835 (1987). A higher standard of proof of unavailability is required in criminal cases than in civil cases. See Spears, supra.
The trial court correctly ruled that the State had met its burden of proving unavailability. The witness, who is the accused's sister, was out of state. She would not voluntarily attend the trial. The uniform act to secure out-of-state witnesses was followed in a timely manner. The foreign court ordered the witness to appear. The fact that the subpoena had not yet been returned from Missouri is of no significance since the trial judge had the foreign court's ruling ordering the witness to attend.
Under this sub-issue, appellant also argues that Ark.Code Ann. § 16-44-202 requires the State to establish unavailability prior to trial, rather than at trial. The cited statute is not applicable to the case at bar as it deals with the taking of depositions in a criminal case. Here, the State did not want to take a deposition; instead it sought to use prior recorded testimony.
Also under this sub-issue, appellant contends that Dorothy Hudson's motion to quash the subpoena was denied at a hearing held without notice to her or her attorney. First, there is nothing in the record to support the allegation that neither Hudson nor her attorney had notice of the hearing. Second, the subpoena was one requiring her attendance on August 15, 1988. That trial date was continued, and Hudson's attorney was present at the subsequent hearing on October 5, 1988, when the Missouri court ordered Hudson to appear as a witness in appellant's trial on October 25, 1988, the date the trial was actually held.
Further, appellant does not make a convincing argument about how the denial of Hudson's motion to quash a subpoena for an earlier trial date affects her unavailability for the October trial. Nor does he cite any authority, and there is no obvious merit in the argument. Accordingly, we affirm on the point. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).
II. (b)
Appellant also contends under this point that A.R.E. Rule 804(b)(1), the hearsay exception for former testimony, as applied in this case, denied him his Sixth Amendment right to confrontation. His initial premise in the argument is that in his first appeal we held that the State violated his right to discover the name of Dorothy Hudson as a witness. That premise is in error. We did not make such a holding. No mention is made of witness Hudson. Even so, we must address the rest of the argument. The crux of it is that the State did not disclose Hudson's name prior to trial as one of its witnesses, the trial court only gave appellant's attorney ten (10) minutes to interview Mrs. Hudson, and, as a result, he was denied effective cross-examination. The record on the allegation is threadbare.
BY MR. JOHNSON: [Defense Attorney]
We also object as she was surprise witness in the first trial.
BY MR. KISSEE: [Defense Attorney]
Yes, we did not have, you gave us ten minutes if I remember right to talk to her and we didn't have ...
Oh, I gave you all the time in the world.
BY MR. STALLCUP: [Prosecuting Attorney]
Whatever was ...
BY MR. KISSEE:
Well, you would have given us more.
I certainly would have.
Thank you.
D. Louisell & C. Mueller, Federal Evidence § 418 at p. 130-131.
Accordingly, the questions become (1) whether, under Rule 804(b)(1), ap...
To continue reading
Request your trial-
Noel v. State
...that a fair trial is not possible are insufficient." Bell v. State, 324 Ark. at 263, 920 S.W.2d at 823, citing Bussard v. State, 300 Ark. 174, 778 S.W.2d 213 (1989). Under the Bell test, the affidavits are Furthermore, this court has held that a denial of a change of venue motion will not b......
-
Anderson v. State
...case can be fairly tried here. The motion would be denied at this time, of course, without prejudice to renew it. In Bussard v. State, 300 Ark. 174, 778 S.W.2d 213 (1989), this court observed that there can be no error in the denial of a change of venue if the transcript of the jury-selecti......
-
Foreman v. State
...made a good faith effort to procure her attendance at trial. Register v. State, 313 Ark. 426, 855 S.W.2d 320 (1993); Bussard v. State, 300 Ark. 174, 778 S.W.2d 213 (1989). We find no abuse of discretion by the trial court in ruling Brooks was unavailable. Lewis v. State, 288 Ark. 595, 709 S......
-
Cox v. State
...of venue due to pretrial publicity: The appellant did not have a right to a jury totally ignorant of the crime. Bussard v. State, 300 Ark. 174, 778 S.W.2d 213 (1989). Our review of the voir dire of the jurors in this case shows that while some had heard of the case or read about it, none of......