Chisum v. State, CR

• Decision Date: 26 May 1981
• Docket Number: No. CR,CR
• Citation: 616 S.W.2d 728,273 Ark. 1
• Parties: Johnnie Lee CHISUM, Appellant, v. STATE of Arkansas, Appellee. 80-213.
• Court: Arkansas Supreme Court

Page 728

616 S.W.2d 728

273 Ark. 1

Johnnie Lee CHISUM, Appellant, v. STATE of Arkansas, Appellee.

No. CR 80-213.

Supreme Court of Arkansas.

May 26, 1981.

Rehearing Denied June 29, 1981.

Gardner & Gardner, Russellville, for appellant.

Steve Clark, Atty. Gen. by Victra L. Fewell, Asst. Atty. Gen., Little Rock, for appellee.

GEORGE ROSE SMITH, Justice.

Between 7:00 and 8:00 on the morning of April 9, 1978, Roger Rackley was shot in the chest while he was in a garage at the home of the appellant's sister, Alta Garrison, at Hector in Pope county. An ambulance was summoned at once, but Rackley died before he could be taken to a hospital. The appellant, Johnnie Lee Chisum, was charged with second degree murder committed with a firearm and was found guilty of manslaughter committed with a firearm. In appealing from a verdict and judgment sentencing him to confinement for 14 years he argues five points for reversal.

Certain basic facts are not in dispute. Mrs. Garrison, with two other women, was at home when Chisum and Rackley came to the house at about 7:00 a. m. The two men had been drinking and were arguing with each other. After a while both men went into the garage through a connecting door, which one of the women locked behind them. None of the women testified to having heard a shot. In about 15 minutes, however, Chisum beat on a different door, was admitted, and said: "I need help. Roger has been shot." Rackley was found lying in the garage with a bullet wound in his chest. An ambulance and the police arrived shortly, but Rackley lived only a few minutes.

Two state policemen and the sheriff took a statement from Chisum, at the scene. They testified at a Denno hearing that Chisum was warned of his rights before he signed a waiver form. They realized Chisum had been drinking, but they testified he was capable of making a statement and did so. In the oral statement, as later narrated to the jury, Chisum said that he and Rackley had been up all night. They had ridden around together and done some drinking. At one point they went to Rackley's house to get two shotguns, to go hunting. They wound up at Alta Garrison's house, where they went in, took off their boots, and drank coffee. Later they went out on the back steps and were putting on their shoes when, Chisum said, he got hit and heard a shot. Chisum said he looked at Rackley and realized that something was wrong. He picked up "the gun" and carried it out to Rackley's pickup truck. He also said Rackley had in his belt in the house a gun that belonged to Chisum's father. He also said they were scuffling, and Rackley shot himself.

In addition to the three officers, one of the women testified at the Denno hearing that Chisum seemed calm: "I do not feel like he was drunk." An attorney who had been called by Chisum's father talked to Chisum a little later at the courthouse. As a defense witness he testified: "I never could get him to tell me what occurred. He didn't he said, 'I don't know.' He would shake his head. 'I just don't know. I don't remember.' " The attorney said that Chisum was incoherent and "evidently he had no memory at all of the events of the night before or that morning either." Chisum himself testified at the Denno hearing that he was drunk when he talked to the officers and did not remember what he told them. He did not testify before the jury.

Chisum first argues that we should set aside the trial judge's finding that Chisum's statement, which did not amount to a confession, was voluntary. Although we make an independent determination of the voluntariness of such a statement, we do not set aside the trial judge's finding unless it is clearly against the preponderance of the evidence. Degler v. State, 257 Ark. 388, 517 S.W.2d 515 (1974). In our independent review we recognize the trial judge's superior position in determining matters of credibility. Whitmore v. State, 263 Ark. 419, 426, 565 S.W.2d 133 (1978).

Here the trial judge's decision was not clearly erroneous. Chisum's statement itself shows that he remembered many of the pertinent events. His recollection is corroborated by other witnesses with respect to what happened after he reached his sister's house. The three officers thought he was able to make a statement. The State's fourth witness, who was the only Denno witness to see Chisum both before and after the crime, did not think he was drunk. Chisum's statements to the attorney could well have been motivated by self-interest, as he seems to have remembered things quite well up until the fatal shot and then suffered a complete cessation of memory. On this point reversible error is not shown.

Second, it is argued that there were deficiencies in the prosecution's chain of custody of certain exhibits: A knife that Rackley had, the pistol used in the shooting, four live and three spent pistol cartridges, and a mutilated slug taken from Rackley's body at the autopsy. Two possible witnesses, Peyton and Carlton, did not testify, but the trial judge concluded before admitting the exhibits into evidence that even if the chain was not completely unbroken the proof was sufficient to identify the articles.

We find no abuse of discretion. Wickliffe & Scott v. State, 258 Ark. 544, 527 S.W.2d 640 (1975). The jury was free to consider any omissions in weighing the testimony as a whole. The important point is that, although the State's case was circumstantial, the omissions did not affect vital matters. The State showed that two men who had been arguing heatedly went into the garage together, alone, and within a few minutes one of them was shot and killed. Chisum put the gun in a truck, where the officers recovered it. Trace metal tests indicated that Chisum had carried the gun against his stomach under his belt and had held it in his hand. A similar test at the autopsy indicated that Rackley had not held the gun or carried it in his belt. The slug taken from the body was so damaged that it could not be traced to a particular pistol. Thus the identity of the pistol, of the cartridges, or of the slug was not an essential element in the State's case, as a fingerprint or a blood sample might be in some other situation. The trial judge's preliminary ruling, admitting the exhibits, was right.

Third, it is argued that the sheriff and his secretary should not have been permitted to narrate statements made by Mrs. Garrison to the sheriff during his investigation of the case. The statements had not been signed by her, but the principal one had been read back to her and acknowledged to be correct. Those matters, however, went only to the weight of the evidence, because the statements were unquestionably admissible for the purpose of impeachment whether she had acknowledged their accuracy or not.

We observe at the outset that the prosecution was mistaken in offering the statements as recorded recollections under Uniform Evidence Rule 803(5), Ark.Stat.Ann. § 28-1001 (Repl.1979). That section of Rule 803 merely recognizes the common law rule permitting a witness to use a contemporaneously made memorandum when, as we have quoted, "the witness is totally lacking in present recollection and cannot revive it by stimulation, but there was a time when he did have a sufficient recollection and when it was recorded." St. Louis S. W. Ry. v. White Sewing Machine Co., 78 Ark. 1, 93 S.W. 58, 8 Ann.Cas. 208 (1906). Instances of the proper application of Rule 803(5) would include the testimony of a witness who bought an appliance and wrote down its serial number or who had a traffic collision and wrote down the other motorist's license number. Mrs. Garrison's detailed accounts to the sheriff were not within the rule.

Even so, we will not reverse a trial judge's ruling, even though he gave the wrong reason, if the ruling was right. Moose v. Gregory, 267 Ark. 86, 590 S.W.2d 662 (1979); Reeves v. Ark. La. Gas Co., 239 Ark. 646, 391 S.W.2d 13 (1965). That is the situation here, because the statements were admissible for impeachment, as inconsistent out-of-court statements made by Mrs. Garrison. Such statements have long been admissible at common law and are admissible under Uniform Evidence Rule 613, provided the witness is first given an opportunity to explain or deny the statements. Reynolds v. State, 254 Ark. 1007, 497 S.W.2d 275 (1973); Thomas v. State, 72 Ark. 582, 82 S.W. 202 (1904). In Thomas we also recognized the rule, preserved in Uniform Evidence Rule 607, that the State may impeach its own witness.

It was formerly our rule that inconsistent statements were admissible only for impeachment and not as substantive evidence. Comer v. State, 222 Ark. 156, 257 S.W.2d 564 (1953). That limitation has now been abolished entirely in civil cases and has been similarly abolished in criminal cases when the prior statement was given under oath and subject to the penalty of perjury. Uniform Evidence Rule 801(d)(1). The common law rule was not otherwise changed by the Uniform Rules and still prevails in criminal cases when the prior statement was not under oath. Field, A Code of Evidence for Arkansas?, 29 Ark.L.Rev. 1 (1975); United States v. Ragghianti, 560 F.2d 1376 (9th Cir. 1977), construing Federal Evidence Rule 801(d)(1), after which the state Uniform Rule was patterned.

Here the prior statements were clearly admissible, even though Mrs. Garrison professed to have forgotten what she had told the sheriff. In effect she testified to nothing that was unfavorable to her brother. She did say that when Chisum first came back in the house he said: "I need help. Roger has been shot." She could not, however, remember any of her statements to the sheriff that implicated Chisum in the shooting, even though the prosecutor went beyond the minimum requirement and allowed her to read the prior statements before asking her about them. She could not remember having asked Johnnie, "Why? Why?," nor his reply, "Well, it was either him or me." She could not remember his...