Grigsby v. State

• Decision Date: 25 October 1976
• Docket Number: No. CR--76--60,CR--76--60
• Citation: 542 S.W.2d 275,260 Ark. 499
• Parties: James GRIGSBY, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 275

542 S.W.2d 275

260 Ark. 499

James GRIGSBY, Appellant, v. STATE of Arkansas, Appellee.

No. CR--76--60.

Supreme Court of Arkansas.

Oct. 25, 1976.

Thomas E. Robertson, Jr., and Hubert E. Graves, Fort Smith, for appellant.

Jim Guy Tucker, Atty. Gen., by Jackson Jones, Asst. Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Justice.

Appellant Grigsby was sentenced to life imprisonment without parole for the capital felony murder of John Henry Childers while in the perpetration of a robbery. We find no reversible error and affirm.

Among his stated points for reversal are the following:

THE COURT ERRED IN OVERRULING DEFENDANT'S MOTION IN LIMINE THAT JURORS WHO WOULD NOT CONSIDER THE DEATH PENALTY NOT BE EXCUSED FOR CAUSE IN THAT PART OF THE TRIAL AT WHICH DEFENDANT'S GUILT OR INNOCENCE WOULD BE DECIDED.

THE COURT ERRED IN OVERRULING DEFENDANT'S MOTION FOR PAYMENT OF TRAVEL EXPENSES AND WITNESS FEES TO EXPERT WITNESSES WHO WOULD TESTIFY THAT A JURY COMPOSED ONLY OF PERSONS WHO WOULD BE WILLING TO CONSIDER THE DEATH PENALTY IS MORE LIKELY TO CONVICT THAN IS A JURY COMPOSED OF A CROSS SECTION.

THE COURT ERRED IN OVERRULING DEFENDANT'S MOTION FOR A ONE WEEK CONTINUANCE IN ORDER TO PRESENT EVIDENCE THAT A JURY COMPOSED ONLY OF PERSONS WHO WOULD CONSIDER THE

DEATH PENALTY IS MORE LIKELY TO CONVICT THAN IS A JURY COMPOSED OF A CROSS SECTION.

THE COURT ERRED IN OVERRULING DEFENDANT'S MOTION FOR A DIRECTED VERDICT AS TO CAPITAL FELONY MURDER AND FIRST DEGREE MURDER AND IN SUBMITTING AN OFFENSE HIGHER THAN SECOND DEGREE MURDER TO THE JURY.

THE TRIAL COURT ERRED IN REFUSING TO INSTRUCT THE JURY THAT THE STATE MUST PROVE THE ELEMENTS OF A MURDER IN ORDER FOR THE DEFENDANT TO BE CONVICTED OF A CAPITAL FELONY.

We see no point in discussing these points because the record and arguments supporting them are virtually identical to those in Venable v. State, 260 Ark. ---, 538 S.W.2d 286 (1976). Our rejection of these arguments there is controlling here.

Appellant argues that the court erred in excusing prospective juror Blan, who was acquainted with appellant and his family and who had found it difficult to say that he could try the case fairly and impartially without being influenced by this acquaintance. Even though he finally responded in the affirmative to appellant's attorney's question whether he could render a verdict based on the evidence presented in court and applied to the instructions of law given by the court, the circuit judge pursued the matter further, obviously because the state's attorney had challenged Blan for cause on the basis of earlier answers. When the judge asked Blan if he felt that he could be totally fair and impartial to both the state and the defendant if he was taken on the jury, Blan answered, 'I don't believe I could be totally fair, no.' The trial judge did not abuse his discretion by honoring the challenge for actual bias. Ark.Stat.Ann. § 43--1919 (Repl.1964). See Henslee v. State, 251 Ark. 125, 471 S.W.2d 352.

Appellant argues the following points for reversal:

THE COURT ERRED IN ALLOWING A DEFENSE WITNESS TO TESTIFY ABOUT CARTRIDGE CASES FOUND TWO DAYS AFTER THE OFFENSE WAS ALLEGED TO HAVE BEEN COMMITTED WHEN THE WITNESS WAS UNABLE TO SAY THAT THE SCENE WAS IN THE SAME CONDITION THAT IT WAS IN ON THE DAY OF THE ALLEGED OFFENSE.

THE COURT ERRED IN OVERRULING DEFENDANT'S OBJECTION TO FURTHER DESCRIPTION OF THE SCENE WHERE THE BODY WAS FOUND WHEN THE WITNESS WHO DISCOVERED THE BODY LEFT THE SCENE FOR APPROXIMATELY TWO HOURS AND RETURNED WITH A DEPUTY SHERIFF.

The two points are considered together because they are argued jointly by appellant, who relies upon Oliver v. Miller, 239 Ark. 1043, 396 S.W.2d 288. The gist of appellant's argument is that the evidence admitted was too remote to be relevant and that the evidence was prejudicial, particularly since the evidence of murder was circumstantial and important inferences could be drawn from this testimony.

In evaluating this argument, we taken into consideration a statement made by Grigsby to a police officer which was subsequently admitted into evidence without objection by appellant. That statement had exculpatory features, but appellant did admit therein that on the evening of the date in question he and Childers had been riding around drinking; the two were alone on a side road off Highway 309, when Grigsby showed Childers a .25 caliber automatic pistol, which Childers examined and started firing. Grigsby was quoted as saying that he grabbed Childers' arm and the gun went off, after which Childers' eyes started looking funny and he walked back to the car, sat down on the seat and fell over on it; Grigsby pulled him out, put him in the 'edge of the bushes,' took a $20 bill and a $5 bill from Childers' overalls, threw his billfold over by a tree, and took the car, leaving the man and a little white dog at the scene; he met Billy Belt and Mrs. Velma Smith along the road and told them what he had done. Grigsby stated that he, Mrs. Smith and Belt stopped along the Carbon City Road and fired at a beer can with his .25 caliber pistol, and that he later offered to sell the weapon to a man named Highfield.

Velma Smith had testified substantially as follows:

Appellant came to her house on July 18, 1975. Someone she did not know was in a brown and white Chevrolet that Grigsby was driving on this occasion. Mrs. Smith left with Billy Belt. Later they met Grigsby 'coming back into town,' driving the same automobile. Still later they met him 'over by Hillard's farm' coming toward Ozark on Highway 309, still driving the same car. She and Belt proceeded to O'Kane Island and Grigsby followed them there, where they all were drinking beer and talking and Grigsby told them he had killed a guy in Fort Smith, or thought he had. Mrs. Smith and Belt started back to the 'rock,' a tavern in Paris, but stopped on a dirt road, where they were soon joined by Grigsby still driving the same car, when Belt and Grigsby fired several shells at a beer can from a 'gun' Grigsby had.

There was evidence tending to show that John Henry Childers was the person Mrs. Smith had seen at her house in the brown and white Chevrolet and that the vehicle belonged to Childers. There was testimony that Grigsby had also told Warren George Highfield on July 18, 1975 that he had shot a man and that Grigsby had tried to sell a .25 automatic pistol to Highfield.

On Sunday, July 20, Billy Joe Davis was 'riding around' in his pickup truck on Highway 309 and turned off on an old lane. After driving about a half mile, he turned around and started to get out of his truck, when he heard a dog barking. Since he was unable to see the dog, he called it. The dog came running out of a roll of wire. Behind the wire, Davis then saw the feet of a human. He immediately came to town and reported to Deputy Sheriff Kenneth Ross that he had found a dead man. This occurred about 10:45 a.m. Davis directed Ross to the place where the body lay. Ross remained there until Sheriff Pritchard and Arkansas State Police Criminal Investigator Stevens arrived at about 12:15 p.m. Ross examined the body. He described the location as a junk yard. He said the body was not easily seen from the road. Albert Helmert, radio dispatcher for the sheriff's office, testified that he accompanied the sheriff to the scene, where he found four empty cartridges for a small caliber pistol and a billfold. He also testified that he went with Ross, Mrs. Smith and others to a place along Carbon City Road, where six empty 'hulls' and one bullet were found.

It is difficult to see how the introduction of the cartridges found at the place Belt and Grigsby fired at a can could have prejudiced appellant. The finding of six bullets and some cartridge cases along the Carbon City Road was relevant only to the identity of the weapon from which the fatal bullets were fired, but there really does not seem to have been any issue on this point.

The medical examiner testified that he death of Childers was caused by multiple .25 caliber gunshot wounds, at least one of which could not likely have been self-inflicted. It was a question for the jury to say, after considering the circumstances, whether the fatal wounds were inflicted by Grigsby or they were accidentally inflicted, or whether someone else had subsequently come to the scene and fired .25 caliber bullets into the wounded body of Childers. The four cartridges found at the scene where the body was found and the four .25 caliber bullets taken from the body were shown by expert testimony to have been fired from the same weapon. This evidence had some bearing on the question whether there was a remote possibility that someone else wounded Childers after Grigsby left. The lapse of two days was not sufficient to make this evidence irrelevant. The description of the scene and the location of the body could also have had some bearing on the real issue, i.e., whether Childers was murdered or whether he was accidentally wounded in the manner described in Grigsby's statement. Stevens testified that Childers' body was in a brush area behind a pile of wire approximately 30 feet north of the roadway. This testimony along with that of Ross constituted the only significant description of the scene, except for that given by Davis.

The question of admissibility of this evidence is one of relevance to the issue. In Everett v. State, 231 Ark. 880, 333 S.W.2d 233, we stated that the test of admissibility of evidence over an objection for irrelevancy is whether the fact offered in proof affords a basis for rational inference of the fact to be proved. It is sufficient if the fact may become relevant in connection with other facts or if it forms a link in the chain of evidence necessary to support a party's contention. Glover v. State, 194 Ark. 66, 105 S.W.2d 82. See also, Horne v. State, 253 Ark. 1096, 490 S.W.2d 806; Williams v. State, 257 Ark. 8, 513 S.W.2d 793. The state's evidence on the...