Jordan v. State, CR

• Decision Date: 11 March 1996
• Docket Number: No. CR,CR
• Citation: 917 S.W.2d 164,323 Ark. 628
• Parties: Alvis A. JORDAN, Appellant, v. STATE of Arkansas, Appellee. 95-942.
• Court: Arkansas Supreme Court

Page 164

917 S.W.2d 164

323 Ark. 628

Alvis A. JORDAN, Appellant, v. STATE of Arkansas, Appellee.

No. CR 95-942.

Supreme Court of Arkansas.

March 11, 1996.

Appeal from the Ashley County Circuit Court, No. CR94-48-1A; Hon. Don E. Glover, Judge.

Lee R. Watson, Fort Smith, for Appellant.

David R. Raupp, Asst. Attorney General, Little Rock, for Appellee.

DUDLEY, Justice.

Appellant Alvis Jordan and co-defendant Cedric Harris were charged with capital murder for shooting and killing Broderick Shavis and with attempted capital murder for shooting and injuring Daniel Williams. Appellant and Harris were tried separately. Appellant was found guilty of second-degree murder for killing Broderick Shavis and guilty of attempted first-degree murder for shooting Daniel Williams. There was substantial evidence that appellant was guilty of both crimes. We affirm both judgments of conviction.

In his opening brief, appellant contends that the trial court erred in denying his motion for a directed verdict on the charge of attempted capital murder of Daniel Williams. He argues the required proof of his culpable mental state for attempted capital murder was lacking. We need not address the point in any detail. As appellee's brief points out, the ruling could not have been prejudicial to appellant since he was not convicted of attempted capital murder, but rather was convicted only of a lesser-included offense, attempted first-degree murder. See Hickson v. State, 312 Ark. 171, 847 S.W.2d 691 (1993). In his reply brief, appellant admits that he was not convicted of attempted capital murder and attempts to change his argument to one alleging error for failure to grant a directed verdict on the charge of first-degree murder. The attempt to change arguments is ineffective. We have long held that an argument cannot be raised for the first time in the reply brief. Partin v. Bar, 320 Ark. 37, 894 S.W.2d 906 (1995). As far back as 1919, we wrote: "If counsel should omit to argue any assignment of error in his original brief, such assignment must be treated as waived and abandoned by him unless permission to amend his brief is asked and granted by the court for good cause before the case is submitted." Commonwealth Pub. Serv. Co. v. Lindsay, 139 Ark. 283, 293, 214 S.W. 9, 13 (1919).

As a sub-point appellant argues that the conviction for attempted first-degree murder of Daniel Williams should be reversed because it is inconsistent with the conviction of only second-degree murder for killing Broderick Shavis. While both Shavis and Williams were shot during the one episode, the argument is without merit. A jury may convict on some counts but not on others, and may convict in different degrees on some counts, because of compassion or compromise, and not solely because there was insufficient evidence of guilt. "Indeed, if the rule were otherwise, the State would be entitled to have the jury warned that an acquittal on some counts might undermine a guilty verdict on others--almost the opposite of the standard instructions, which is obviously beneficial to criminal defendants." McVay v. State, 312 Ark. 73, 77, 847 S.W.2d 28, 30 (1993) (quoting United States v. Greene, 497 F.2d 1068 (7th Cir.1974)). The law is clear in that "a defendant may not attack his conviction on one count because it is inconsistent with an acquittal on another count. Res judicata concepts are not applicable to inconsistent verdicts; the jury is free to exercise its historic power of lenity if it believes that a conviction on one count would provide sufficient punishment." Id. (quoting United States v. Romano, 879 F.2d 1056 (2d Cir.1989)).

Appellant next contends that the trial court erred in denying his motion for a directed verdict for the second-degree murder of Broderick Shavis. He moved for a directed verdict on the capital murder charge for killing Broderick Shavis at the close of the State's case on the ground that there was "insufficient evidence from which reasonable people could agree" that there was, among other things, "premeditation or deliberation." The trial court denied the motion. Appellant then put on his case. At the close of his case, appellant moved for a directed verdict on capital murder and attempted capital murder and all lesser-included offenses on the ground that he had no intent to cause the death of either victim. The trial court denied the motion.

The argument is procedurally barred. Appellant's motion at the close of the State's case addressed only capital murder. Counsel stated that he "moved for a directed verdict on the charge of capital murder" and "that there was no intent to commit the death of the individuals by either party when they went down there. There was no premeditation or deliberation." The motion did not address second-degree murder either by name or by the culpability required for the crime. (Premeditation and deliberation are not required for second-degree murder. Instead, it requires proof that the actor engaged in conduct with the conscious object to produce death. See Ark.Code Ann. § 5-10-103(a)(1) (Repl.1993) and Original Commentary.) We have held that a defendant is required to address the lesser-included offenses in his motion for a directed verdict to preserve a challenge to the sufficiency of the evidence necessary to support a conviction for a lesser-included offense. Walker v. State, 318 Ark. 107, 883 S.W.2d 831 (1994). Appellant's failure to question the sufficiency of the evidence for lesser-included offenses, either by name or by apprising the trial court of the elements of the lesser-included offenses, at the close of the State's case constituted a waiver of the argument.

Appellant's third point of appeal is also procedurally barred. Before trial, appellant filed a motion to quash the jury panel. He did not bring the motion to the attention of the trial court, and he did not obtain a ruling on the motion. In fact, to the contrary, the trial court commenced the trial by asking both the State and appellant, "Is this a good jury?" and both responded affirmatively. In order to preserve a point for appellate review, a party must obtain a ruling from ...