Larimore v. State, CR

• Decision Date: 26 May 1992
• Docket Number: No. CR,CR
• Citation: 309 Ark. 414,833 S.W.2d 358
• Parties: Gregory R. LARIMORE, Appellant, v. STATE of Arkansas, Appellee. 91-144.
• Court: Arkansas Supreme Court

Page 358

833 S.W.2d 358

309 Ark. 414

Gregory R. LARIMORE, Appellant, v. STATE of Arkansas, Appellee.

No. CR 91-144.

Supreme Court of Arkansas.

May 26, 1992.

Dan Ritchey, Blytheville, Bill W. Bristow, Jonesboro, for appellant.

J. Brent Standridge, Asst. Atty. Gen., Little Rock, for appellee.

HAYS, Justice.

Shortly before noon on January 11, 1990, the body of June Larimore was found on a bedroom floor of her Blytheville home. She had been stabbed 134 times, apparently with a knife that had been wiped clean and replaced in a cutlery block in the kitchen. The body was nude except for panties rolled down around the hips. Body temperature rectally was 91.2 degrees at 12:10 p.m. There was no visible sign of entry nor any evidence of robbery. Ms. Larimore's jewelry was undisturbed and her open purse, containing cash, was by a living room couch where she had left it.

Gregory Larimore, June Larimore's husband of one year, arrived for work at a family business at about 6:45 a.m. and worked routinely throughout the morning, showing no signs of stress or emotional upset. When contacted by the Blytheville police he said that he and June had come home from a wake between nine and ten the previous evening. He fell asleep on the couch watching television and got up at 6:00 a.m. to go to work. When he left his wife was asleep on the bed clad only in a pair of panties. Larimore told another officer he fell asleep on the couch but woke up at 3:00 a.m. and got in bed with his wife where he slept until morning.

Gregory Larimore was charged and convicted of first degree murder and sentenced to life imprisonment.

No motive was established for the murder of June Larimore. The state's case was wholly circumstantial, structured on the theory that she was murdered between 2:00 and 4:00 a.m. and, hence, was not alive when Larimore left for work at 6:30 a.m. Thus, the time of death was a crucial element in the case.

Dr. Fahmy Malak performed the autopsy and postmortem studies on the body of June Larimore. He testified that the pancreas, spleen, kidneys, heart, brain and blood vessels were empty, or "blanched," from a total loss of blood. He said, "It is a known fact that when a body is exposed to numerous stabbings, the body will generate heat." Using a ratio of one degree of temperature loss per hour, Dr. Malak estimated a lapse of 8.4 hours from death to discovery, adding: "But to consider this one point would not be accurate. We have to consider all of the findings--presence of the rigid body, the examination of the body inside--the degree of pathology--the degree of decay inside. In my opinion, she died at least ten to twelve hours before she was found."

The defense presented the testimony of three experts in forensic pathology--Dr. Frank Cleveland, Dr. Don Vollman and Dr. Werner Spitz, all of whom took exception to Dr. Malak's opinion that body heat rises with massive bleeding from stab wounds. Dr. Cleveland estimated five hours as the outside limit with regard to the time of death. Dr. Vollman, four to five hours. Dr. Spitz estimated death as having occurred after 7:00 a.m.

On appeal, Larimore asserts five points of error: I. The circuit judge erred in denying defendant's motion for directed verdict of acquittal; II. The circuit judge erred in denying defendant's motion for a new trial; III. Defendant will be denied due process of law if no relief is granted for the prejudicial exposure of extraneous matter to the jury; IV. The circuit judge erred in allowing the evidence regarding luminol testing to be presented to the jury; V. The circuit court erred in allowing the introduction of extraordinarily gruesome and inflammatory photographs and video tapes. For reasons to be seen, we hold that a new trial should have been ordered and, therefore, we reverse and remand.

I

The Circuit Judge Erred in Denying Defendant's Motion for

Directed Verdict of Acquittal

Appellant moved for a directed verdict of acquittal and challenges the trial court's denial thereof on the premise that evidence which is contrary to the daily experience of common life and inconsistent with well known physical laws will not sustain a verdict. Alldread v. Mills, 211 Ark. 99, 199 S.W.2d 571 (1947); St. Louis S.W. Railway Co. v. Ellenwood, 123 Ark. 428, 185 S.W. 768 (1916); 5A C.J.S. Appeal and Error § 1649, at 365-366 (1958); 5 Am.Jur.2d. Appeal and Error § 827, at 268-269 (1962). We disagree, not with the legal principle stated, but with its applicability to the case before us.

In neither of the cases cited by appellant did this court sustain the argument that pertinent physical laws were so irrefutable it could be said that reasonable minds could entertain no other conclusion, so that the issue could be taken from the jury. In Alldread we wrote:

Only in those extraordinary cases where deductions from physical laws and facts so clearly and irrefutably disprove the testimony of witnesses that reasonable minds may not entertain any other conclusion are courts justified in ruling sworn testimony inherently unbelievable and impossible. [Emphasis added.]

Dr. Malak's opinion that temperature increases when the body is drained of blood from multiple stab wounds may seem implausible to some, even against the decided weight of medical opinion, but we cannot say that it is so clearly and irrefutably contrary to the laws of nature as to be inherently impossible. Dr. Malak did not state, so far as we can determine, the degree of increased temperature, or its duration. Nor, for that matter, did he indicate that his opinion (that death occurred at a much earlier hour than advanced by the opposing experts) was dependent on the assumption the victim's bodily temperature first increased before it began to wane. It was, he said, simply one of many factors to be considered. The fact that three experts called by the appellant held opposing views on that issue tells us little or nothing as to the certitude of the premise.

We think the trial court was right to reject the motion for a directed verdict of acquittal.

II The Circuit Judge Erred in Denying Defendant's Motion for a New Trial

At a pretrial suppression hearing a number of proffered exhibits were held to be inadmissible. Nevertheless, through inadvertence or mistake, the excluded materials and the admitted exhibits were intermingled and submitted en mass to the jury for perusal during deliberations. These materials included segments of a report of luminol testing performed throughout the Larimore home some two months after the homicide; a letter from June Larimore to Greg Larimore, referred to as "The Christmas Letter;" correspondence between defense counsel and the trial judge relative to the luminol testing; proposed exhibits involving an FBI psychological profile of the killer, which was intended, according to appellant, to show that the Blytheville police had furnished false information concerning Greg Larimore to the Bureau. These materials could have fostered the inference that Larimore's arrival at work was earlier than usual, that he may have used cocaine, that he spoke to the investigators only momentarily before requesting an attorney and exercising his Miranda rights, that the Larimores may have had some disagreement on the previous evening when they left the home of friends.

The insinuation of the excluded materials into the jury room came to light when two...