Dupree v. State

• Decision Date: 10 November 1980
• Docket Number: No. CR,CR
• Citation: 607 S.W.2d 356,271 Ark. 50
• Parties: Edgar DUPREE, Jr., Appellant, v. STATE of Arkansas, Appellee. 80-132.
• Court: Arkansas Supreme Court

Page 356

607 S.W.2d 356

271 Ark. 50

Edgar DUPREE, Jr., Appellant, v.STATE of Arkansas, Appellee.

No. CR 80-132.

Supreme Court of Arkansas.

Nov. 10, 1980.

Arnold, Hamilton & Streetman, Crossett, for appellant.

Steve Clark, Atty. Gen. by Mary Davies Scott, Asst. Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Chief Justice.

Appellant was found guilty of manslaughter and sentenced to ten years imprisonment on October 12, 1979.He had been tried on a charge of first degree murder of his brother-in-law, George Parker, Jr., arising from an incident on May 7, 1977, but was found guilty of the lesser offense.The charge was filed on May 10, 1977.This appeal is based upon the trial court's denial of several pretrial motions.They were: (1) a motion to dismiss the charge on account of the state's failure to bring him to trial within three terms of court; (2) a motion to prohibit witnesses whose names were belatedly furnished to defense counsel from testifying; (3) a demurrer and motion to dismiss the charge on account of a defect in the name of the person charged in the information; and (4) a motion to quash the information.We find reversible error in regard to the second motion.

On September 11, 1978, appellant moved that the state be required to file a "bill of particulars" including the names of every person known to the state who had any information, the addresses of such persons, the substance of their expected testimony and a statement whether the state intended to use them in the trial of the case.At a pretrial hearing on September 28, 1979, after the case had been set for trial on October 12, 1979, the court ordered the state to furnish counsel for defendant a list of witnesses which it proposed to use along with their addresses and an itemization of any other evidence in the state's possession by October 2, 1979.On October 2, 1979, a deputy prosecuting attorney addressed a letter to appellant's attorney advising him that the state intended to call Wallace Champion, Leroy McCowan, Robert Lee Pen and Evelyn Dupree.In spite of the fact that the charges had been pending for more than two years, the letter included the following: "At the present time, this is a complete list of the witnesses and evidence available to the State.If anything further turns up, you shall be advised promptly."Yet, on October 10, 1979, subpoenas were issued on behalf of the state for Shela (Shiela) Wood, Jacqueline (Jacqulin) Rodgers, Bear Webb and Ernest Thomas(Thompson) and on October 11, 1979, for Myena (Murna) Bryan.On October 12, appellant's attorney requested that the court deny the prosecution the right to call Sheila Wood, Jacqulin Rodgers, Ernest Thompson, Ollie Mae Parker and Murna Bryan as witnesses.Appellant's attorney stated that he was not made aware of the evidence these witnesses would introduce, that the names of Wood, Rodgers, and Thompson had not been furnished him until approximately 2:15 p. m. on October 10, and that on October 11 at 4:00 p. m., he was given the names of Parker and Bryan.The attorney stated that he had not had an opportunity to talk with any of these witnesses and had no idea what their testimony would be or the purpose of their being called.He said that on the preceding day he had called Sheila Wood and Ernest Thompson by telephone and had made appointments for each of them to come to his office, but both failed to appear.He said that he had tried to reach Jacqulin Rodgers by telephone, but had found that she was working and could not be reached.The prosecuting attorney said that he had located these witnesses himself during the preceding two days and that, if a request had been made he would have been glad to have told appellant's attorney the "substance of their involvement in the matter."He said that Murna Bryan was a nurse who had been located in an effort to prove that corpus delicti after it was discovered that the attending physician did not have a good recollection of the cause of the death of George Parker, Jr.After the prosecuting attorney had been sworn and had testified that he had advised the trial judge on September 28 that he had furnished the contents of his investigative file to defense counsel"as of June 15," that he had given Mr. Streetman a list of all witnesses "we had as of October 2," that he had furnished appellant's attorney with a list of all witnesses as "I have received them," and that he made no attempt to withhold anything from appellant's attorney, the trial judge overruled appellant's motion.Appellant's attorney was permitted thereafter to cross-examine the deputy prosecuting attorney, apparently for the record.This witness then admitted that he did not know of any reason why the state had not been aware that Ollie Mae Parker would be called as a witness and why, with reasonable diligence, the prosecuting attorney, who had filed the charge and his deputy, or the present incumbent of these offices, could not have learned the names of all these witnesses and furnished them to appellant's attorney at an earlier date.The trial judge then noted that appellant had objected to each of these persons being permitted to testify, thus obviating the requirement that appellant register an objection when each of them was called.

There was really no prejudice to appellant resulting from the testimony of Murna Bryan, Ernest Thompson or Sheila Wood.The witness Bryan simply testified as to the condition of George Parker, Jr., when he was brought into the emergency room at the hospital in Crossett on May 7, 1977.She described the wounds and the blood she saw on the clothing and the body.Dupree testified and admitted that he had been armed with a knife when he and Parker had an encounter and that he had used the knife in self-defense, or to keep Parker off him.Dupree said that he did not think that Parker had ever seen the knife, but that after Parker was cut, he had bled, looked at himself and at Dupree and had run.There does not seem to have been any serious question about the cause of death, so permitting this witness to testify under the circumstances was not sufficiently prejudicial to justify a reversal for abuse of the trial court's discretion.

Sheila Wood testified only in rebuttal.She controverted the testimony of Dupree that the physical encounter between the two was commenced by Parker's pushing him and that, before Parker was cut, the two had fallen to the ground.Her testimony was cumulative to that of Evelyn Dupree and Jacqulin Rodgers.Thus, it was not sufficiently prejudicial to constitute reversible error.The only testimony by Thompson related to his seeing Parker run away from the scene of the encounter between Dupree and Parker, and to Parker's condition when Thompson went to the place toward which he had seen Parker running and found Parker lying on the ground.

Ollie Mae Parker was the mother of George Parker, Jr., and Evelyn Dupree.She testified that, on the evening of the encounter between her son and son-in-law, Evelyn had come running back to the Parker house and was upset.She said that she went outside and saw that appellant had driven her daughter's car and positioned it so she and her daughter could not use it to go see about George Parker, Jr., that appellant had stated that he had cut that "so-and-so" and that he was going to wind up killing all of the Parkers.She also told of the condition in which she later found her son.Appellant himself testified that, after his encounter with Parker, he had gotten in the car and had driven home, which was next door to the Parker house, where he met Mrs. Ollie Mae Parker and her family, who were on their way to see Parker, but denied having blocked the driveway.Dupree could not well have been surprised to learn that Mrs. Parker would be a witness.Investigation of the case should have revealed the nature of the testimony she might be expected to give.A defendant in a criminal case cannot rely upon discovery as a total substitute for his own investigation.

On the other hand, the record does not disclose any means that appellant had of anticipating that Jacqulin Rodgers would testify or what her testimony might be.The testimony abstracted does not reveal that appellant knew that Jacqulin Rodgers, Sheila Wood, and a man named Arthur had been in an automobile from which George Parker, Jr., had alighted before the encounter between him and appellant on the grounds of a place known as Willie Penn's Bar-b-que only a short distance from the dwelling house of the elder Parkers.Her testimony was as damaging to appellant and his defense as that of any other witness.She testified that she had never been contacted by anyone about the case until she was served with a subpoena the day before the trial.

The state seeks to excuse its failure to comply with the court's order on appellant's motion for discovery by stating that the deputy prosecuting attorney who participated in the trial had only located the witnesses, to which appellant objected, two days before the trial, that he had learned that certain of the witnesses whose names he had furnished were unavailable, and thereafter had sought replacement witnesses.The state called only one witness on its original list.Even though the case had been pending over two years, the state's attorneys, only ten days before trial, stated that certain witnesses would be called and then discovered they were not available.Even though there may have been no lack of good faith, diligence on the part of the prosecuting attorney would have prevented appellant from being misled as to the witnesses with whom he would be confronted.The admission of a lack of prosecutorial diligence in the matter of witnesses was certainly appropriate.Even so, only the mechanics of compliance rest upon the prosecuting attorney.The discovery rules require that he make disclosure upon timely request.His obligations under Rule 17,Arkansas Rules of Criminal...