Foreman v. State

• Decision Date: 27 May 1997
• Docket Number: No. CR,CR
• Citation: 328 Ark. 583,945 S.W.2d 926
• Parties: Everett FOREMAN, v. STATE of Arkansas. 96-1272.
• Court: Arkansas Supreme Court

Page 926

945 S.W.2d 926

328 Ark. 583

Everett FOREMAN, v. STATE of Arkansas.

No. CR 96-1272.

Supreme Court of Arkansas.

May 27, 1997.

Dale E. Adams, Little Rock, for appellant.

Winston Bryant, Attorney General, Kelly K. Hill, Deputy Attorney General, Little Rock, for appellee.

NEWBERN, Justice.

Everett Foreman and Durell Childress were charged with the murder of Little Rock Police Officer Henry Callanen. They were tried separately. Mr. Childress was convicted of capital murder and sentenced to life imprisonment. We affirmed the judgment on appeal. Childress v. State, 322 Ark. 127, 907 S.W.2d 718 (1995). Mr. Foreman was convicted of first-degree murder and sentenced to life imprisonment. We reversed the judgment against Mr. Foreman and remanded the case. Foreman v. State, 321 Ark. 167, 901 S.W.2d 802 (1995). Upon retrial, Mr. Foreman was again convicted and again sentenced to life imprisonment. He has raised six points of appeal, none of which requires a second reversal; thus, we affirm the judgment.

1. Sufficiency of the evidence

Officer Callanen was shot and killed while working, off-duty, for a McDonald's restaurant. The evidence against Mr. Foreman included a statement he gave to the police after his arrest in which he admitted driving Mr. Childress to the restaurant on the night of the shooting, waiting with Mr. Childress while standing in some bushes behind the restaurant and seeing Officer Callanen emerge, hearing gunshots, running from the scene, and telling his girlfriend, Tracy Brooks, that Mr. Childress had "done something bad."

Mr. Foreman's testimony at the trial differed somewhat. He stated that Mr. Childress had said he needed some money and that he knew Mr. Childress was carrying a silver .22 automatic. He said his purpose in going to the restaurant was to get free food from a friend who previously had brought food to him at the rear door. Mr. Foreman testified that he was peering in at the back door when he heard Mr. Childress mention that Officer Callanen had emerged from the restaurant and saw Mr. Childress pull out his pistol. At that point, Mr. Foreman testified, he ran away. He said that he did not know Mr. Childress was planning to rob the restaurant and that he took no part in the attempted robbery or shooting.

The State's witnesses included Tonya Butler, who lived near the restaurant. Ms. Butler testified that her brother told her it looked like someone was about to rob McDonald's. She went outside and saw two people in the bushes near the restaurant, one squatting down "peeking" and the other standing up beside the drive-through menu board. She went inside and tried to telephone the restaurant without success. When she came back outside, she saw one person approach the side of the restaurant and then heard gunshots. She then telephoned 911 and saw someone run across her yard.

Anthony Brown testified that he was working at the restaurant on the night of the shooting. He testified that Officer Callanen had arrived around midnight to collect the day's deposit. As the Officer was getting in his car to depart, Mr. Brown heard a gunshot. Officer Callanen got out of his car to see what was happening. A second shot was fired. Officer Callanen returned fire as he was falling. Mr. Brown's girlfriend, Carla Jackson, was waiting for him in a car in the restaurant parking lot.

Carla Jackson testified she heard shots and saw a man holding a gun near the restaurant drive-in window. She heard a voice say "drop it." She drove away but returned to find Officer Callanen on the ground.

Keith Abney, owner of the restaurant, testified that Mr. Foreman had been employed at the restaurant and had on at least two occasions assisted in the closing routine. Mr. Abney testified that Officer Callanen worked as a security guard for the restaurant during Mr. Foreman's employment there.

Dedric Weems testified he heard Mr. Childress and Mr. Foreman planning a robbery some three weeks or a month before the shooting occurred. He did not know where the robbery was to occur, but he knew it would be somewhere in their neighborhood.

Mr. Foreman's girlfriend, Tracy Brooks, testified she was with Mr. Foreman the night of the shooting. She lived with Mr. Foreman and his family. Ms. Brooks said she had been questioned by the police after the incident but she could not remember what she had told them. She said the police had been verbally abusive to her and had threatened her and that she said some things to the police in order to help Mr. Foreman. She said that Mr. Foreman, who was upset and crying on the night in question, had not discussed the shooting incident with her and that whatever she had told the police about the incident had come from Mr. Childress who had called the Foreman home that evening. She said she knew about "the gun" and that she had seen Mr. Foreman and Mr. Childress with the gun that she had, on occasion, obtained from Mr. Foreman and carried in her purse.

Ms. Brooks was cross-examined extensively about a statement she had given to the police shortly after the event in question. For the most part, she said she could not remember having made the remarks contained in the statement. She ultimately admitted, however, that she had told the police that "Pee Wee" (Mr. Foreman's nickname) had shot the police officer.

The State's theory was that Mr. Foreman was an accomplice to the crime. Although there was no eye witness who could testify that Mr. Foreman was at the scene throughout the attempted robbery and shooting, there was circumstantial evidence to that effect. When the evidence is circumstantial, a conviction may be sustained if that evidence excludes every other reasonable hypothesis consistent with innocence. Carter v. State, 324 Ark. 395, 921 S.W.2d 924 (1996). Whether every other reasonable hypothesis has been excluded by the evidence is largely a factual determination to be made by the jury. Chism v. State, 312 Ark. 559, 853 S.W.2d 555 (1993); Smith v. State, 264 Ark. 874, 575 S.W.2d 677 (1979).

Mr. Foreman's statement to the police and his trial testimony placed him at the scene with another person who was carrying a weapon and had announced his need for money. Ms. Butler said she saw two men behind the restaurant prior to the shooting. She testified she saw a man running past her house after the shooting. Mr. Foreman said he ran prior to the shooting. That evidence, when combined with the testimony that Mr. Foreman and Mr. Childress had been overheard planning a robbery and the evidence that Mr. Foreman knew the restaurant's closing routine, makes a sufficient circumstantial case to go to the jury for a determination whether Mr. Foreman participated in the crimes charged. It was not error to overrule Mr. Foreman's motion for a directed verdict.

2. Improper impeachment

The statement given by Ms. Brooks to the police when she was interviewed shortly after the crime was highly inculpatory of Mr. Foreman. The prosecutor was permitted to question Ms. Brooks about her earlier statement for the purpose of impeaching her trial testimony. The Trial Court instructed the jury that the extra-judicial statement of Ms. Brooks could be considered only for the purpose of impeachment. The prosecutor had Ms. Brooks read large segments of the statement in which she told the police that Mr. Foreman had told her that he had shot at Officer Callanen's car and that Mr. Childress had called to say he thought Mr. Foreman had hit Officer Callanen.

The readings from the statement were interrupted occasionally by questions from the prosecutor referring to Ms. Brooks's trial testimony and making the impeaching comparison with her statement to the police.

In Roberts v. State, 278 Ark. 550, 648 S.W.2d 44 (1983), we roundly condemned the practice of using impeachment as a "subterfuge" for getting before the jury an unsworn, out-of-court statement of a witness that would not otherwise be admissible. We also said the limiting instruction was not sufficient to eliminate the danger of convicting an accused on inadmissible evidence. See also Smith v. State, 279 Ark. 68, 648 S.W.2d 490 (1983).

The problem with Mr. Foreman's reliance on the Roberts holding is that the readings by Ms. Brooks from her statement to the police occurred in segments. Long passages of the statement were read with no objection being made. It was not until the end of the cross-examination that an objection was made. When an objection is not made at the earliest opportunity, it is waived. Laymon v. State, 306 Ark. 377, 814 S.W.2d 901 (1991); Ferrell v. State, 305 Ark. 511, 810 S.W.2d 29 (1991). In addition, when the prosecutor responded to the objection by saying she had no way to impeach Ms. Brooks's testimony other than by having her read from her statement, the Trial Court merely said he could "relate to that." There was no ruling on the objection. Failure to obtain a ruling would preclude review of the issue even if there had been a timely objection.

3. Admissibility of pretrial statement

Statements given by accused persons who are in police custody are presumed to be involuntarily given; thus, the burden is on the State to prove voluntariness. As a part of overcoming that burden, the State must produce at a Denno hearing all of the persons who were witnesses to the taking of the statement or explain their absence. When the necessary witnesses are not produced, and no satisfactory explanation of their absence is forthcoming, we hold that evidence of the accused that his statement was involuntarily given "stands uncontradicted." Gammel v. State, 259 Ark. 96, 531 S.W.2d 474 (1976); Russey v. State, 257 Ark. 570, 519 S.W.2d 751 (1975).

In our earlier decision in this case, we held that the Trial Court erred in admitting Mr. Foreman's pretrial statement to the police because the State failed to produce a material witness at the Denno hearing held before the first trial and thereby failed to sustain its burden of proof as to the...