Carter v. State

• Decision Date: 13 May 1996
• Docket Number: No. CR,CR
• Citation: 324 Ark. 395,921 S.W.2d 924
• Parties: Ethridge L. CARTER, Appellant, v. STATE of Arkansas, Appellee. 95-1011.
• Court: Arkansas Supreme Court

Page 924

921 S.W.2d 924

324 Ark. 395

Ethridge L. CARTER, Appellant, v. STATE of Arkansas, Appellee.

No. CR 95-1011.

Supreme Court of Arkansas.

May 13, 1996.

Dave Wisdom Harrod, Heber Springs, for appellant.

J. Brent Standridge, Asst. Atty. Gen., Little Rock, for appellee.

BROWN, Justice.

Appellant Ethridge Carter was convicted of murdering his wife, Shirley Carter. He appeals his conviction and life sentence on grounds of insufficiency of the evidence and various errors committed at trial. We conclude that the evidence submitted by the State was substantial and that no reversible error occurred at trial. Accordingly, the judgment is affirmed.

At about 10:15 a.m. on April 29, 1994, the Heber Springs Police Department received a 911 call that Shirley Carter had been shot at her home. She had been shot through the head with a .22 caliber semi-automatic pistol. She was still alive when the EMT's and police officers arrived, but she subsequently died in the hospital. Ethridge Carter was later charged with first degree murder, found guilty by a jury, and sentenced to life imprisonment.

Carter's first point on appeal is that the trial court erred in denying his motion for a directed verdict and his post-trial motion for a judgment of acquittal notwithstanding the verdict. A motion for directed verdict is a challenge to the sufficiency of the evidence. See, e.g., Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996); Galvin v. State, 323 Ark. 125, 912 S.W.2d 932 (1996); Littlepage v. State, 314 Ark. 361, 863 S.W.2d 276 (1993). In determining the sufficiency of the evidence, we review the evidence in the light most favorable to the State and sustain the conviction if there is substantial evidence to support it. Misskelley v. State, supra; Galvin v. State, supra; Mills v. State, 322 Ark. 647, 910 S.W.2d 682 (1995). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture; only the evidence supporting the conviction need be considered. Id.

In order for circumstantial to be sufficient, it must exclude every other reasonable hypothesis consistent with innocence. Walker v. State, 324 Ark. 106, 918 S.W.2d 172 (1996); Nance v. State, 323 Ark. 583, 918 S.W.2d 114 (1996). That determination is a question of fact for the fact finder to determine. Pike v. State, 323 Ark. 56, 912 S.W.2d 431 (1996); Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995); Missildine v. State, 314 Ark. 500, 863 S.W.2d 813 (1993). However, the fact finder must not be left to speculation and conjecture in arriving at its conclusions on the matter. Smith v. State, 264 Ark. 874, 575 S.W.2d 677 (1979). Two equally reasonable conclusions as to what occurred merely give rise to a suspicion of guilt. Id.

The evidence supporting the State's case is summarized below. Lori Brown, a daughter of Shirley Carter, testified that her mother was age 57 at the time of her death. According to Brown, her mother was in "great spirits" just prior to her death. Brown testified that her mother had no knowledge about guns; indeed, she was "scared to death" of guns. Brown added that the deceased did not know how to use a gun.

Keith Edmonds, an emergency medical technician, testified that he was called to Shirley Carter's residence on April 29, 1994. He knocked on the door, and Carter informed him that his wife had shot herself in the bedroom. Edmonds further testified: "And, you know, he [Carter] said be careful because, you know, the gun is still loaded." Edmonds further explained that Shirley Carter was found on her bed in a strange position because her arms were above her head. He testified that the gun was in her left hand, which was turned palm-out away from her face.

Alan Hubbard, another EMT, informed the jury that Carter told them to be careful because Shirley Carter had a gun. Hubbard testified that he observed a gunshot wound to the right temple area and that the deceased was still "clutching" the gun as if she were about to shoot it. According to Hubbard, the gunshot wound entered the right side of the head and exited the left. Hubbard recalled that the gun was in the deceased's right hand. In his report, he described her right arm and right hand with the gun as being draped over her head and resting on top of her left hand and arm. Hubbard carefully took the gun from Shirley Carter's hand, using both of his hands in the process, and handed it to a police officer who took it with a pen or pencil. Hubbard denied putting the gun on safety. Hubbard described Carter's demeanor that day as simple and very short, "almost of a sense of disgust...." It was his impression that Carter seemed angry that Shirley Carter had shot herself.

Detective Mark Baugh of the Heber Springs Police Department testified that when he arrived, three EMT's were working on Shirley Carter. Officer Ron Wildman of the police department was also present at that time. Baugh testified that he picked up the firearm which was lying on the dresser and placed it in a paper sack. He observed that the safety was on. Once he took the gun back to his office, Baugh removed the magazine and ejected the shell from the chamber. Baugh testified that he also found a spent shell casing on a night stand next to the bed. The actual .22 caliber bullet was later extracted from the bed linens. Baugh added that he asked Carter what had happened, and Carter told him that he was in the living room and that Shirley Carter had lain down to take a nap. A short while later, Carter heard a pop, and he found his wife lying in the bed with a gunshot wound. At that point, he called for help. On cross-examination, Baugh admitted that EMT Hubbard had reported that the pistol was in Shirley Carter's right hand. It was his understanding that, other than Hubbard, no one could agree on which hand the pistol was in.

Officer Ron Wildman testified that he was the first police officer on the scene on the morning of April 29, 1994, and he arrived just after the EMT's. Wildman testified that Shirley was lying on her bed and that a .22 caliber semi-automatic pistol was in her left hand. ¹ Wildman stated that he collected the gun powder residue samples from Shirley Carter at the hospital and from Ethridge Carter at the police station. Wildman described Carter's demeanor as very calm, even when he was administering the gun powder residue test.

Dr. Frank Paretti, a forensic pathologist and medical examiner with the State Crime Lab, testified that the deceased's body showed no signs of trauma except for the gunshot wound. Paretti explained that the entrance wound from the bullet was a contact wound and entered on the right side of the head. The bullet exited the left side of the deceased's head. Paretti testified that when people sustain gunshot wounds to the head, they become limp. Berwin Monroe, a firearms examiner with the State Crime Lab, testified that the .22 caliber bullet that was recovered from the bed linens was fired from the gun that was taken from the scene. He testified that the gun would not fire when the safety was on. Gary Lawrence, who works in the trace evidence section of the State Crime Lab, testified that the gun powder residue tests from both Carters yielded negative results. Lawrence explained that the negative result could have been due to Ethridge Carter's washing his hands. Lawrence further testified that the gun was tested to see if it emitted a detectable level of gun powder residue. The results of that test were that "very good levels" of residue were emitted from the gun. Lawrence estimated that ten percent of the firearms and ammunition combinations are non-emitters of detectable residue.

After the defense put on its case, the State called Lila Thompson, another friend of Shirley Carter's, as a rebuttal witness. She testified that the deceased was happy on the day before her death and that she never said a word about killing herself.

From this proof, the jury was well within its bounds to conclude that Carter shot his wife, placed the safety in the "on" position, put the pistol in his wife's left hand, and washed his own hands, thereby removing the gun powder residue. To the extent there was conflicting testimony about which hand the gun was in, this was for the jury to resolve. We have often stated that the credibility of the witnesses is a matter that lies exclusively within the province of the trier of fact. See, e.g., Walker v. State, supra; Misskelley v. State, supra.

Carter argues that the conviction should be reversed because a reasonable hypothesis exists to rebut the circumstantial evidence of guilt presented by the State. He argues specifically that Shirley Carter committed suicide as a result of her manic-depression. There was testimony at trial that Shirley had suffered from and received medication for that mental condition for over seventeen years. Dr. Frank Bivens, a family practitioner, testified that suicide is a concern among individuals afflicted with that mental illness. The deceased had other health problems as well which included incontinency, Wolff-Parkinson-White syndrome, and a frozen shoulder, which had been non-surgically operated on just prior to her death. Carol Wilkinson, who saw the deceased three days before her death, stated that Shirley Carter told her that she had found a plot where she wanted to be buried and added that she was lonely, depressed, and bored. According to Wilkinson, there was no doubt in...