Callaway v. State, CR75--38

• Decision Date: 30 June 1975
• Docket Number: No. CR75--38,CR75--38
• Parties: Clete CALLAWAY, Jr., Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 617

524 S.W.2d 617

258 Ark. 352

Clete CALLAWAY, Jr., Appellant, v. STATE of Arkansas, Appellee.

No. CR75--38.

Supreme Court of Arkansas.

June 30, 1975.

Dennis K. Williams, Texarkana, for appellant.

Jim Guy Tucker, Atty. Gen. by Gary Isbell, Asst. Atty. Gen., Little Rock, for appellee.

HARRIS, Chief Justice.

Clete Callaway, Jr., Appellant herein, was found guilty of murder in the second degree by a jury which fixed his punishment at 21 years confinement in the Arkansas Department of Correction. From the judgment so entered, appellant brings this appeal. For reversal, five points are relied upon which we proceed to discuss, though not in the order set out by appellant.

It is contended that the verdict is not supported by substantial evidence. We disagree. The evidence on the part of the state was that on May 24, 1974, Frank Smith was sitting on his porch around 11:00 P.M. talking with a friend, Morris Bigelow, when a car came around the corner; someone fired from the car, and Bigelow, frightened, left immediately. Eva Jean Cook, who lived 'a house away' from Smith testified that she heard Smith talking on his porch before the shooting and after the shots, she went to the Smith premises, observing Clete Callaway with a shotgun in his hands, Smith lying at the corner of the house near the porch. Before calling the police and an ambulance, the witness stated that she heard Clete say, 'I told you I was going to kill you, you son of a b_ _.' She said that Callaway then got in his car and left. The witness testified that she heard two shots, seeing the first one fired, and subsequently hearing a second. Callaway was arrested at 11:45 P.M., and told the arresting officer that he was on his way to the police station. Officer Edrington testified that appellant had a 12-gauge shotgun, with three loaded shells, the gun normally holding five shells, and not being plugged. Callaway contended that he acted in self-defense. He said that he had observed Smith earlier passing by his house, and that he then went in and obtained his shotgun that he was fearful since Smith had earlier shot him, ¹ and had threatened to kill him. He said that when he drove in front of Bigelow's house, he saw Smith 'coming around the house'; that Smith hollered, "Hey Red,' and when he said that I went to shooting.' Appellant added that Smith had his hand in his pocket and when the latter said that he wanted to talk to appellant, 'I went to shooting.' He said he shot Smith the second time because 'I didn't want him to kill me.' The jury is the fact-finder, and it is apparent the evidence was sufficient to sustain the conviction.

It is next asserted that the trial court erred in allowing the state to introduce a statement of appellant made a short time after the shooting of Smith. According to Lt. James Cowart, Callaway was arrested at 11:45 P.M., informed of his rights under Miranda ² at 12:08 A.M. and after appellant had first executed a waiver, wherein he acknowledged that he had been advised of his rights, the waiver form also listing same, his statement was taken beginning at 12:20 A.M. The statement was subsequently transcribed and Callaway, after suggesting certain corrections, and initialing same, signed the statement. The court conducted a Denno ³ hearing in chambers and found that the statement was voluntarily made.

It is argued that Callaway has no formal education and can only write his name because his sister taught him to do so, and that appellant did not understand his rights when he signed the waiver. Complaint is also made that his statement was taken too soon after the offense occurred. The answers to the questions in the written statement pretty well reflect that they were the actual answers of appellant without any prompting and, while he may not have had much formal education, it is evident that he understood the statement for two corrections were made. The complaint that the statement was taken too soon is a little unusual since most complaints in this category are that defendants are held for too long a period of time before any statement is taken. Certainly, there is no showing that Callaway was taken advantage of, or treated unfairly, due to the statement being made within the hour. Appellant had not been wounded, and according to the testimony, appeared to be in full possession of his faculties and 'very calm'.

There is no contention that appellant was mistreated or coerced into signing the statement; in fact, the defense offered no testimony at the Denno hearing. We find no merit in the argument.

It is next contended that the court permitted the state to impeach its own witness, Eva Jean Cook, and that this constituted error. This point is somewhat difficult to understand. The witness had made a statement to the officers after the shooting and part of her testimony was slightly different from a statement that had been made in the written statement. Actually, considering the testimony given by the witness, heretofore set out, the conflict was minor, but she was asked about this conflict by the state's attorney, the prosecutor referring to the statement that she had made. Defense counsel objected to the use of the statement, declaring that he had not seen it, whereupon the court directed the prosecutor to furnish counsel with a copy. The next objection was that leading questions were being asked and the court commented that the state's attorney was only trying to refresh the memory of the witness. The prosecutor commenced reading from the statement, but the court stopped counsel, and at the request of defense counsel, ordered the portion read stricken from the record.

We do not agree that the questioning of the witness constitued an effort to impeach her testimony, for the witness never denied giving the written statement, nor any of its contents. To the contrary, she agreed that she had made the statement and she testified that it was the truth; it appeared that the witness had simply forgotten the particular fact that she was being interrogated about. We find no violation of Ark.Stat.Ann. §§ 28--706 and 28--708 (Repl.1962).

It is asserted that the trial court committed error in allowing the state to deliver to the jury transcribed written statements of appellant's alleged confession while the tape containing appellant's statement was being played, 'said tape being the best evidence.' Callaway's statement had been recorded on tape and was subsequently reduced to writing by a stenographer, who did not testify at the trial, and who was not present when the tape was made. Copies of the statement reduced to writing were passed out to members of the jury. Counsel for appellant objected, stating:

'If Your Honor, please, I would object, and ask that the recording is the best, the tape is the best evidence.

THE COURT:

Yes, sir. The tape is the best evidence, and it is my understanding the State proposes to play the tape.

Is this correct?

MR. SMITH:

Yes, Your Honor.'

The same objection was subsequently reiterated, overruled, and the tape was played, the jurors all having a copy of the transcription.

Here, on appeal, it is argued that error was committed in permitting the jurors to read copies of appellant's statement, while the tape was being played, because, says appellant, this procedure permitted undue emphasis to be placed on the statement. Appellant...