Cigainero v. State
| Citation | 310 Ark. 504,838 S.W.2d 361 |
| Decision Date | 05 October 1992 |
| Docket Number | No. CR,CR |
| Parties | Mary Elizabeth CIGAINERO, Appellant, v. STATE of Arkansas, Appellee. 92-85. |
| Court | Arkansas Supreme Court |
Damon Young, Texarkana, for appellant.
Sandy Moll, Asst. Atty. Gen., Little Rock, for appellee.
Appellant, Mary Elizabeth Cigainero, was convicted of first degree murder in the shooting death of her husband, Christopher Cigainero. She argues that her conviction should be reversed claiming there was insufficient evidence to support the conviction and the trial court erred in not granting her a new trial based on juror bias. We disagree and affirm her conviction.
Early the morning of June 4, 1989, Christopher Cigainero returned home after an evening with his cousins. As he attempted to enter the house through his living room window, he was shot through the chest with a high powered rifle. Mr. Cigainero's wife, Mary Elizabeth Cigainero, admits having shot him. She claims that she thought he was an intruder and fired upon him out of fear. The jury found that she had killed him with premeditation and deliberation and sentenced her to life imprisonment.
Cigainero first argues that the evidence presented at trial was insufficient to prove her guilty of first degree murder and that the trial court erred in overruling her motion for directed verdict. In consideration of Cigainero's motion for directed verdict, we will affirm the trial court's decision if there is substantial evidence to support the verdict. Williams v. State, 289 Ark. 443, 711 S.W.2d 825 (1986). Substantial evidence is evidence that is of sufficient certainty and precision to compel a conclusion one way or another, forcing or inducing the mind to pass beyond a suspicion or conjecture. Holloway v. State, 293 Ark. 438, 738 S.W.2d 796 (1987).
Circumstantial evidence indicating that Cigainero had planned and committed the murder of her husband is more than substantial. The law makes no distinction between circumstantial and direct evidence. Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982). For circumstantial evidence to be sufficient, it must exclude every reasonable hypothesis consistent with innocence. It is up to the jury, however, to determine whether the evidence excludes every other reasonable hypothesis. Traylor v. State, 304 Ark. 174, 801 S.W.2d 267 (1990); Upton v. State, 257 Ark. 424, 516 S.W.2d 904 (1974). The matter of premeditation and deliberation and intent may all be inferred from the circumstances. Hamilton v. State, 262 Ark. 366, 556 S.W.2d 884 (1977); Wilson v. State, 258 Ark. 110, 522 S.W.2d 413, cert. denied, 423 U.S. 1017, 96 S.Ct. 451, 46 L.Ed.2d 388 (1975). An instant of premeditation is enough to sustain a conviction. Shipman v. State, 252 Ark. 285, 478 S.W.2d 421 (1972).
Testimony indicated that Cigainero was unhappy with her marriage but was afraid to divorce her husband because she might lose custody of her children. She had been involved in affairs while married. Numerous witnesses testified that Cigainero had discussed ways to have her husband killed. Although Cigainero claimed that she shot the victim believing he was an intruder, witnesses claimed that the victim often climbed through the window after coming home late in the evening. Cigainero's co-worker testified that the day prior to the homicide, he had taken her to pick up the rifle used in the murder. Evidence also indicated that although Cigainero's home was usually "very nasty," on the morning of the homicide, the home was very neat, except for a bathtub filled with dirty dishes. A witness testified that Cigainero had told her that she was going to clean up her house and have her lawn mowed prior to killing her husband as he came through the window. Lastly, Cigainero confided her acts to her friends and lovers indicating on at least one occasion that she intentionally shot her husband.
Cigainero also argues that the trial court erred in refusing to grant her a new trial based on juror bias. The state argues that this issue was not preserved for appeal because the motion for new trial was filed almost ninety days after the conviction was entered. We agree with the state.
Both A.R.Cr.P. Rule 36.22 and Ark.Code Ann. § 16-91-105 (1987) dictate that a motion for new trial must be filed within thirty days of the judgment. The trial court found that the motion for new trial was timely, claiming that the motion involved newly discovered evidence and A.R.C.P. Rule 60(c)(1) allows a motion for new trial to be filed after ninety days where the grounds for the motion are newly discovered evidence. The trial court was wrong as A.R.Cr.P. Rule 36.22, not A.R.C.P. Rule 60, is applicable here.
A person convicted of either a felony or misdemeanor may file a motion for new trial, a motion in arrest of judgment, or any other application for relief, but all motions or applications must be filed prior to the time fixed to file a notice of appeal. Such pleadings should include a statement that the movant believes the action to be meritorious and is not offered for the purpose of delay ... Upon the filing of any motion or other application for relief in the trial court, the time to file a notice of appeal shall not expire until thirty (30) days after the disposition of all motions or applications.
A.R.Cr.P. Rule 36.22 (emphasis added).
Cigainero also relies on Ark.Code Ann. § 16-89-130 (1987) as a grant of extra time to file. It provides in part: "The application for a new trial must be made at the same term at which the verdict is rendered, unless the judgment is postponed to another term, in which case it may be made at any time before judgment," and notes that this applies in cases including where, because of jury misconduct, the court is of the opinion that the defendant did not receive a fair trial. To the contrary, A.R.Cr.P. Rule 36.22 and Ark.Code Ann. § 16-91-105 (1987) have set the time frame, thirty days from date of judgment, and they have effectively superseded and taken precedence over Ark.Code Ann. § 16-89-130. Chisum v. State, 274 Ark. 332, 625 S.W.2d 448 (1981). Cigainero's motion is not timely, and her issue of whether the trial court erred in refusing to grant a new trial will not be considered on appeal.
In accordance with Rule 11(f) of the Rules of the Supreme Court, all other objections made during the trial have been examined. We find...
To continue reading
Request your trial
-
Davis v. State, CR
...intent may all be inferred from the circumstances. An instant of premeditation is enough to sustain a conviction. Cigainero v. State, 310 Ark. 504, 838 S.W.2d 361 (1992). Our legislature has defined capital murder A person commits capital murder if: (1) Acting alone or with one (1) or more ......
-
Perry v. Norris, PB-C-83-275.
...However, the court has never expressly held that this thirty-day period is jurisdictional. See, e.g., Cigainero v. State, 310 Ark. 504, 506-08, 838 S.W.2d 361, 362-64 (1992); Smith v. State, 301 Ark. 374, 375, 784 S.W.2d 595, 596 (1990); compare State v. Thurman, supra, 305 Ark. at 448, 808......
-
Echols v. State
...at 360-61. However, Larimore filed a motion for new trial almost immediately after the verdict was rendered. Id.; cf.Cigainero v. State, 310 Ark. 504, 838 S.W.2d 361 (1992) (a motion for new trial that alleged jury misconduct, but which was filed more than thirty days from the date of the j......
-
Missildine v. State
...S.W.2d 772 (1993). It is for the jury to determine whether the evidence excludes every other reasonable hypothesis. Cigainero v. State, 310 Ark. 504, 838 S.W.2d 361 (1992). Sheila was last seen going around the house, calling to her mother. A single gunshot was heard. Shortly, Missildine ex......