Jones v. State, CR

• Decision Date: 21 November 1994
• Docket Number: No. CR,CR
• Citation: 889 S.W.2d 706,318 Ark. 704
• Parties: Gary Lynn JONES and Jimmy David Hedge, Appellants, v. STATE of Arkansas, Appellee. 94-70.
• Court: Arkansas Supreme Court

Page 706

889 S.W.2d 706

318 Ark. 704

Gary Lynn JONES and Jimmy David Hedge, Appellants, v. STATE of Arkansas, Appellee.

No. CR 94-70.

Supreme Court of Arkansas.

Nov. 21, 1994.

G. Wayne Mooney, Harrisburg, for Jones.

Lohnes Tiner, Harrisburg, for Hedge.

J. Winston Bryant, Atty. Gen., Little Rock, for appellee.

HOLT, Chief Justice.

The appellants, Gary Lynn Jones and Jimmy David Hedge, raise two and eleven points, respectively, for reversal of their first- and second-degree murder convictions. Jones's two arguments overlap with those made by Hedge (under three headings) and neither is persuasive. The same is true for the arguments advanced by Hedge, and we therefore affirm the convictions of both appellants.

Facts

On the evening of October 4, 1991, appellant Gary Lynn Jones, appellant Jimmy David Hedge, Tammy Hedge, Jerry Clampit, James Blackwell, Carolyn Blackwell, and Jimmy Jack Crawford were together at a cafe called the Greasy Spoon in Harrisburg, Arkansas. At some point between midnight and 1:00 a.m. on October 5, 1991, the Hedges and Clampit left in one vehicle and drove to a gas station. There, Jimmy Hedge had a verbal altercation with James Allison (Dutch) Sims, Jr., accusing him of previously running his wife off the road. Sims drove a female companion to her car, and, on returning to the gas station, he invited Hedge to follow him. Subsequently, after Hedge and his party had followed him to his residence, Sims fired a gun over their vehicle from his driveway.

The Hedges and Clampit then returned to the Greasy Spoon. Mrs. Hedges ran in and told Jones, her brother, what had happened. Angered, Jones, accompanied by Hedge, Clampit, Blackwell, and Crawford, drove to the trailer house where Sims resided with his parents. Sims was standing in the front yard, holding a tire tool and Jones, after getting out of his vehicle, charged Sims and began fighting with him. The other men surrounded Sims and Jones, and, according to Crawford's testimony, Jones, Hedge, and Clampit all struck Sims with their fists. Blackwell testified that Jones pulled out a knife and stabbed Sims twice. Both Hedge and Clampit struck Sims, Blackwell stated, and Sims dropped to the ground.

Patsy Sims, the victim's mother, testified that she came outside and saw "five men in my yard and they were all around my son." She ran into the house, grabbed a pistol that was on a nightstand, went out on the porch, and fired in the air and at Jones's truck. According to Ms. Sims, when she fired her gun, Hedge threw his hands up and looked at her. He and the others fled the scene.

Meanwhile, Jones went to his truck and started it. At that point, James Allison Sims, Sr., the victim's father, entered on the passenger side to seize the ignition key, and the two men struggled. Mr. Sims held Jones down by his hair while Ms. Sims shut the engine off and took the key. Jones remained at the scene. Then Mr. Sims found his son on the ground, dead, with several stab wounds. The cause of death was later determined to be a stab wound to the left side of the chest that punctured the lung and heart.

Appellants Jones and Hedge, along with Clampit, Blackwell, and Crawford, were charged by information filed on November 26, 1991, with first-degree murder and second-degree battery in the death of James Sims, Jr. A jury trial was held in late September and early October 1993, with Jones and Hedge as co-defendants. Clampit, Blackwell, and Crawford were called as witnesses for the State. Jones was found guilty of first-degree murder and sentenced to forty years imprisonment, and Hedge was found guilty of second-degree murder and sentenced to fifteen years imprisonment. From that judgment, this appeal arises.

Issues

Given the number of points on appeal, we find it useful to set forth the various issues as framed by Hedge and Jones, noting the arguments which overlap:

I. (Hedge ) Whether the trial court erred in refusing to grant appellant Hedge's motion for mistrial based upon the jury panel being exhausted and the thirteen jurors being called in after all of Hedge's peremptory strikes were used; (Jones ) whether the systematic exclusion of farmers and 13 jurors who had served the day before and forcing appellant jones to select a jury from the remaining panel unfairly restricted Jones's right to trial by an a fair and impartial jury.

II. (Hedge ) Whether the trial court erred in not granting a mistrial since the jury did not set punishment after being told by the trial court that he would fix punishment if they could not.

III. (Hedge ) Whether the trial court erred in giving preliminary instructions to the jury over Hedge's objections.

IV. (Hedge ) Whether the trial court erred in refusing to grant a mistrial when it instructed the jury that a piece of photographic evidence was impartial.

V. (Hedge & Jones ) Whether the trial court erred in allowing the prior statement of a state's witness to be read into the record as a prior consistent statement.

VI. (Hedge ) Whether the trial court erred in refusing to grant a mistrial after instructing the jury as to the effect of prior inconsistent statements.

VII. (Hedge ) Whether the statement of a state's witness made to a police officer was hearsay and, as such, inadmissible.

VIII. (Hedge & Jones ) Whether the trial court erred in refusing to grant Hedge's motion for a mistrial based upon the exclusion of all farmers from the venire panel. (Combined with Point I.)

IX. (Hedge ) Whether the trial court erred in providing the jury the wrong definition of reasonable doubt. (Combined with Point III.)

X. (Hedge ) Whether the trial court erred in refusing to grant Hedge's motion for directed verdict.

XI. (Hedge ) Whether there was sufficient evidence to corroborate the accomplice testimony.

Motions for directed verdict

Appellant Hedge contends that the trial court erred in denying his motions for a directed verdict (Point X) and asserts that the evidence was insufficient to corroborate accomplice testimony (Point XI). As a motion for a directed verdict is a challenge to the sufficiency of the evidence, we must consider the issue of the sufficiency of the evidence before addressing other points on appeal. Graham v. State, 314 Ark. 152, 861 S.W.2d 299 (1993); Hendrickson v. State, 316 Ark. 182, 871 S.W.2d 362 (1994).

Hedge's attorney made a specific motion for directed verdict at the close of the State's case, arguing that there was no evidence presented at trial to show that Hedge was guilty of "first-degree murder or any type of homicide" or that he "aided, assisted, abetted, encouraged, solicited, or [did] anything else" to contribute to the homicide. While counsel for Jones specified uncorroborated accomplice testimony as a basis for his motion for a directed verdict, Hedge's attorney made no reference whatsoever to accomplice testimony in his request.

At the close of all the evidence, Jones's defense counsel merely said, "We rest, Your Honor. Show our motion renewed, please." Hedge's attorney then addressed the trial court with a single word: "Judge?" At that point, the trial court declared, "Show motion for directed verdict on behalf of Hedge and on behalf of Jones renewed and denied."

To preserve the issue of the sufficiency of the evidence in a criminal case, the appellant must move for a directed verdict both at the close of the State's case and at the close of all of the entire case. Hayes v. State, 312 Ark. 349, 849 S.W.2d 501 (1993). Moreover, this court adheres to a strict construction of Ark.R.Crim.P. 36.21(b), which deals with the failure to question the sufficiency of the evidence, and has held that a general reference rather than a statement of specific grounds will not satisfy the requirement of the rule. See Daffron v. State, 318 Ark. 182, 885 S.W.2d 3 (1994); Walker v. State, 318 Ark. 107, 883 S.W.2d 831 (1994); Brown v. State, 316 Ark. 724, 875 S.W.2d 828 (1994); Middleton v. State, 311 Ark. 307, 842 S.W.2d 434 (1992); Pilcher v. State, 303 Ark. 335, 796 S.W.2d 845 (1990). A general motion constitutes a waiver of the right to challenge the sufficiency of the evidence. Daffron v. State, supra.

The failure of Hedge's defense counsel either to include accomplice testimony as a ground for a directed verdict or to renew the motion for directed verdict rendered the motion insufficient to preserve specific arguments for appellate review. A "bright line" has been drawn. Directed verdict motions must state specific grounds. Daffron v. State, supra. The sufficiency issue having been waived, the merits of these issues need not be considered. Daffron v. State, supra.

Fair and impartial jury

Both Jones and Hedge urge in their first points for reversal, with Hedge overlapping in his Point VIII, that the trial court erred in refusing to grant a mistrial on the basis that both appellants were unable to obtain a fair and impartial jury drawn from the actual jury panel summoned by the court. Specifically, Jones and Hedge argue that the trial court erred first in excusing twelve jurors and an alternate who, immediately before the appellants' case, had served on a criminal trial that resulted in an acquittal and then in recalling them after respective counsel had exercised all of their peremptory challenges. They contend, further, that the trial court erred in systematically excluding all farmers from jury duty because the trial dates coincided with harvest time. The result, Jones and Hedge assert, was the impeding of their ability to make a jury selection from a cross-section of the population.

A mistrial, of course, is an extreme remedy that should be resorted to only when an error is so prejudicial that justice cannot be served by a continuation of the trial. Littlepage v. State, 314 Ark. 361, 863 S.W.2d 276 (1993). The granting or denial of a motion for mistrial lies within the sound discretion of the trial judge, and the exercise of that discretion will not be disturbed on appeal absent an abuse of that...