Greene v. State

• Decision Date: 20 June 1994
• Docket Number: No. CR,CR
• Citation: 878 S.W.2d 384,317 Ark. 350
• Parties: Jack Gordon GREENE, Appellant, v. STATE of Arkansas, Appellee. 93-523.
• Court: Arkansas Supreme Court

Page 384

878 S.W.2d 384

317 Ark. 350

Jack Gordon GREENE, Appellant, v. STATE of Arkansas, Appellee.

No. CR 93-523.

Supreme Court of Arkansas.

June 20, 1994.

J.M. Holman, Public Defender, Clarksville, Gary Vannoy, No. Wilkesboro, NC, Didi Sallings, Ex. Dir. Ark. Public Def. Comm., Little Rock, for appellant.

Clint Miller, Acting Deputy Atty. Gen., Little Rock, for appellee.

DUDLEY, Justice.

Jack Gordon Greene, appellant, was found guilty of capital murder and sentenced to death by lethal injection. We affirm the conviction for capital murder, but hold there was prejudicial error in the sentencing phase of the bifurcated trial. We set aside the sentence of death and remand the case to the trial court for resentencing. See Ark.Code Ann. § 5-4-616 (Repl.1993).

Appellant makes nine assignments of error. Two of the assignments involve asserted trial error in the guilt phase of the proceeding. We first address those two arguments. In the first of these, appellant contends that the trial court erred in admitting a number of photographs into evidence. The photographs comprise two groups. One group shows the victim at the scene of the crime. The abstract does not reflect that there was an objection to any of the photographs in this group. Issues not raised in the trial court will not be considered for the first time on appeal. Moore v. State, 303 Ark. 514, 798 S.W.2d 87 (1990). The other group contains photographs taken by a forensic pathologist, Dr. Fahmy Malak, the former state medical examiner. These photographs were introduced through the video deposition of Dr. Malak. While taking the video deposition, appellant's counsel objected to State's deposition exhibits numbers 1, 2, and 4 because they were "inflammatory and repetitive." It does not appear from the abstract that the objection made during the videotaping was subsequently brought to the attention of the trial court, and, as a result, the objection was waived. A matter not brought to the attention of the trial court cannot be considered on appeal. Walker v. State, 301 Ark. 218, 783 S.W.2d 44 (1990). Further, the record to be considered on appeal is confined to that which has been abstracted. Bennett v. State, 302 Ark. 179, 789 S.W.2d 436, cert. denied,498 U.S. 851, 111 S.Ct. 144, 112 L.Ed.2d 110 (1990).

The other assignment of trial error in the guilt phase of the trial involves an evidentiary ruling admitting a tee-shirt into evidence. The proof involved in the ruling showed that while on patrol at 7:15 on the morning of July 26, 1991, Toby Taylor, a city policeman in Norman, Oklahoma, saw appellant and thought he was an escapee from a local mental institution. Taylor stopped appellant to see if he should be returned to the hospital. Appellant had on a pair of parachute pants and thongs, but did not have on a shirt. He was carrying a trash bag in one hand and a black, sleeveless tee-shirt in the other. Appellant identified himself with an Arkansas driver's license and a social security card. The officer did not detain appellant, but instead ran a check on him by police radio through the National Crime Information Center's computer system. Shortly afterward, Officer Taylor learned that appellant was wanted in Arkansas for murder. He went back to the area where he had seen appellant, found him, and arrested him. Appellant had a loaded .25 caliber pistol with a full clip of ammunition in his pocket and had more ammunition in his possession. At trial, appellant did not object to any of officer Taylor's testimony, but did object to the admission of the black tee-shirt. The tee-shirt bears the following message: "If you love someone, set them free. If they don't come back, hunt them down and shoot them." Appellant objected to the admission of the tee-shirt on the grounds that it was not relevant to the murder and was unduly prejudicial.

There was no proof about how, when, or where appellant came into possession of the shirt. No proof indicated that he possessed it at the time of the murder. The proof was solely that he had it in his hand on July 26th, three days after the murder. There was no evidence that appellant had at any time loved the victim, or had set the victim free in any way, and there was no proof that appellant subscribed to the statement emblazoned on the shirt. In offering the shirt, the State contended that it was relevant to prove appellant's state of mind at the time of the murder. The trial court questioned the relevancy because of the lapse of time, but ultimately overruled appellant's objection. The prosecuting attorney argued extensively about the shirt in closing argument.

In the context of this case, "relevant" means evidence that had any tendency to make the existence of appellant's premeditation and deliberation any more or less probable. See A.R.E. Rule 401 & Ark.Code Ann. § 5-10-101(a)(4) (Repl.1993). While evidence may be relevant even though it is somewhat remote in time from the occurrence of the crime, see Hubbard v. State, 306 Ark. 153, 812 S.W.2d 107 (1991), the tee-shirt had only a minimal tendency, at most, to prove appellant's state of mind at the time the victim was killed. Even though evidence might be relevant, it should be excluded when, upon objection, its probative value is substantially outweighed by the danger of unfair prejudice. See A.R.E. Rule 403; Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979), cert. denied, 449 U.S. 852, 101 S.Ct. 144, 66 L.Ed.2d 64 (1980). Here, appellant's objection asked for a balancing of probative value against unfair prejudice under Rule 403 of the Arkansas Rules of Evidence. The standard of review of a trial court's weighing of probative value against unfair prejudice is whether the trial court abused its discretion. Peters v. Pierce, 314 Ark. 8, 858 S.W.2d 680 (1993); Hubbard, 306 Ark. at 161, 812 S.W.2d at 112. Even assuming that the emblazoned statement on the shirt had some marginal relevance, its effect was clearly prejudicial, and the trial court abused its discretion in allowing the shirt into evidence. In a comparable case, an Illinois appellate court ruled that it was error to admit a photograph of a defendant wearing a shirt with "Enjoy Cocaine" printed on it when the prosecution introduced the shirt to prove the defendant was a drug dealer. The court stated that even assuming such evidence was relevant, "[T]he prejudicial effect of the challenged evidence far outweighed whatever probative value, if any, that such evidence may have had." People v. Kannapes, 208 Ill.App.3d 400, 153 Ill.Dec. 419, 422, 567 N.E.2d 377, 380 (1990). In sum, we hold that the trial court erred in admitting the tee-shirt in evidence.

The question then is whether we should reverse the guilt phase of the proceeding because of the erroneous evidentiary ruling made during that phase. When the evidence of guilt is overwhelming and the error is slight, we can declare that the error was harmless and affirm. Numan v. State, 291 Ark. 22, 722 S.W.2d 276 (1987). We apply this standard of review to an evidentiary ruling in the guilt phase of capital cases. See Johnson v. State, 308 Ark. 7, 823 S.W.2d 800, cert. denied, 505 U.S. 1225, 112 S.Ct. 3043, 120 L.Ed.2d 911 (1992). After a detailed review of the evidence, we hold that the evidence of guilt of capital murder was overwhelming, and, in view of that evidence, the error was slight. The overwhelming evidence of guilt is as follows.

Edna Burnett testified that she and her husband, Sidney Jethro Burnett, the victim, helped needy families and needy people. They operated through an association named Ministries Aflame. In 1987, appellant and his wife, who apparently were out-of-state at the time, learned of Ministries Aflame through a radio broadcast. They called the Burnetts and asked for assistance. The Burnetts provided work and a home for appellant and his wife and also provided funds that allowed appellant to have needed surgery. Three months later appellant's wife separated from him and went back to her original home in North Carolina. Appellant appeared distraught over his wife's leaving. He stayed in Arkansas until shortly after Christmas of 1987, when he left to also return to North Carolina.

Edna Burnett further testified that appellant returned to the Burnett's home about one week before the July 23, 1991, murder of Sidney Burnett. At the time, appellant had a hitchhiker with him. He left abruptly, and Edna Burnett did not see appellant again until after the murder.

Sheriff Eddie King testified that after appellant's arrest, he went to Norman to bring appellant back to stand trial. While still in Norman, appellant told the Sheriff that the Burnetts had earlier accused him of burning one of their buildings and that Edna Burnett had talked his wife into leaving him. Appellant told the sheriff, "I'm your man" and "No one else was involved." He also said, "I'm tired of being treated like shit. I was going to take out people that fucked with me. It's like chaining up a dog and treating it like shit. Sooner or later he goes crazy." Other testimony revealed that the victim's pickup truck was recovered in Oklahoma with appellant's palm print on it.

A few days after being returned to Arkansas, while appellant was in jail, he said he had killed his brother in North Carolina and then had come to Arkansas. He said he wished he could have attended his brother's funeral "so he could piss on his grave."

The physical evidence was as follows. Two .25 caliber shell casings were found at the crime scene. A firearms-toolmark examiner testified that the .25 caliber pistol taken from appellant in Norman was the same pistol that imparted the markings on the casings found at the crime scene. Even more important, two bullet fragments were taken out of the victim, and the one fired into the victim's left back and the one fired into the victim's head were both fired from the pistol recovered from appellant. A dented can of hominy with blood on it was...