Larimore v. State

• Decision Date: 23 May 1994
• Docket Number: No. CR,CR
• Citation: 317 Ark. 111,877 S.W.2d 570
• Parties: Gregory R. LARIMORE, Appellant, v. STATE of Arkansas, Appellee. 93-799.
• Court: Arkansas Supreme Court

Page 570

877 S.W.2d 570

317 Ark. 111

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

No. CR 93-799.

Supreme Court of Arkansas.

May 23, 1994.

Daniel G. Ritchey, Blytheville, Bill W. Bristow, Jonesboro, Kent J. Rubens, West Memphis, for appellant.

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

DUDLEY, Justice.

Gregory Larimore, appellant, was convicted of the first degree murder of his wife, June. He was sentenced to life imprisonment. Upon appeal, we reversed and remanded. Larimore v. State, 309 Ark. 414, 833 S.W.2d 358 (1992). Upon retrial, he was again convicted of first degree murder, but this time was sentenced to twenty-five years in prison. Even though the sentence is less than that required for appellate jurisdiction in this court, we will exercise jurisdiction because this is a subsequent appeal of a case initially decided by this court. Ark.Sup.Ct.R. 1-2(a)(11).

June Larimore's corpse was found in the parties' home at 11:30 the morning of January 11, 1990. She had been stabbed in the face, torso, arms, hands, and legs a total of one hundred thirty-four times, apparently with a knife that was wiped clean and replaced in a cutlery block in the kitchen. The body was nude except for panties which were rolled down around the hips in a manner which would be consistent with dragging the body by the hands from the bed to the floor. There was a deep stab wound in the pelvic area, but no corresponding cut in the panties. Samples from her vagina did not indicate that a sexual attack had occurred. When the body was found, a nearby outside door was unlocked, the stereo sound system was still on, her watch and rings were still on, and her open purse containing cash appeared not to have been disturbed. There was evidence that a violent struggle had occurred in the bedroom, and the bathroom sink appeared to have been wiped off, but the rest of the home appeared to be undisturbed except for the telephones. A telephone in the living room and a cordless phone in the hallway were unplugged, and the cord to a phone in the bedroom was severed. The sheets on the bed were soaked with blood, and some of appellant's clothes were found under the corpse. A fair inference from the evidence is that anger was likely the motivating force for the murder, rather than a sexual crime or a crime such as robbery or burglary. There was no direct evidence linking appellant to the murder.

Appellant told the police that he had fallen asleep on a couch the night before, woke up at 6:00 a.m., and left for work at the family farm supply business at 6:30 on the morning the body was found. In another statement, he said he had awakened around 3:00 a.m. and gotten in bed with June, where he slept until 6:00. Another version was that he woke up at 3:00, but decided not to disturb June by getting into the bed. He said that when he left home at 6:30, June was alive and asleep, wearing only a pair of panties. It is undisputed that appellant reported to work at the family business shortly after 6:45 a.m., that he had no blood on him, and that his appearance was normal.

A critical element in the State's circumstantial evidence case was proof that the murder took place before appellant went to work. The State proved this element with the testimony of a forensic pathologist, Dr. Fahmy Malak, the former state medical examiner, who testified that the victim died as early as 1:00 or 2:00 o'clock of the morning the body was found. In his first two assignments of error, appellant argues that the circuit judge erred in denying motions for a directed verdict when a crucial element of the case, the time of death, rested upon a theory of "junk science," thereby depriving appellant of due process of law.

Appellant's challenge to the sufficiency of the evidence, which is based upon the purported unreliability of Dr. Malak's testimony that the body temperature of stabbing victims will rise for a short while after they lose large amounts of blood, is barred by the doctrine of the law of the case since appellant made a similar argument in his previous appeal. The doctrine of law of the case prevents an issue raised and decided in a first appeal from being raised in a subsequent appeal, unless the evidence materially differs between the appeals. Bennett v. State, 308 Ark. 393, 825 S.W.2d 560 (1992); Findley v. State, 307 Ark. 53, 818 S.W.2d 242 (1991). In his first appeal, appellant argued that he should have been granted a directed verdict because the State's case was based in part on Dr. Malak's testimony, and he contended that this testimony was "contrary to the daily experience of common life and inconsistent with well known physical laws." See Larimore v. State, 309 Ark. 414, 417, 833 S.W.2d 358, 359 (1992); see also Alldread v. Mills, 211 Ark. 99, 199 S.W.2d 571 (1947). We affirmed the trial court on this point and stated that, although the theory may seem implausible and may be against the "decided weight of medical opinion," it was not so clearly contrary to the laws of nature as to be inherently impossible. Larimore, 309 Ark. at 418, 833 S.W.2d at 359. The case was reversed on other grounds.

The first two points of appeal do contain sub-points which are not barred by the law of the case doctrine. In the first of these, appellant contends that the trial court erred in refusing to allow him to impeach Dr. Malak's credibility by bringing up other rulings that he made as medical examiner. Appellant sought to impeach Dr. Malak by questioning him about the following findings he had made: (1) marijuana-induced sleep as an explanation of the reason two teenagers were lying on a railroad track, did not hear a train coming, and were run over; (2) a conclusion of death by suicide when a victim was shot three to five times in the chest; and (3) the opinion that a fourteen-year-old girl had broken her neck from stepping off a four-to-six inch high porch. The trial court refused to allow the impeachment, stating that these findings had nothing to do with the issues in the present case, but told appellant that he could cross-examine Dr. Malak on anything that was part of the basis of his opinion regarding the body temperature of victims who have lost large amounts of blood.

Rule 611 of the Arkansas Rules of Evidence provides in pertinent part:

(b) Scope of Cross-Examination. Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.

A.R.E. Rule 611(b).

A trial court has wide latitude to impose reasonable limits on cross-examination based upon concerns about confusion of issues or interrogation that is only marginally relevant. Bowden v. State, 301 Ark. 303, 783 S.W.2d 842 (1990). While the proposed cross-examination might have had the effect of diminishing Dr. Malak's credibility, his findings in the prior cases were not based upon his theory on the body temperature of stabbing victims; therefore, they were not consequential to a determination of whether his theory was to be believed in this trial. For this reason, we cannot say the trial court abused its discretion in imposing this restriction. See Bowden, 301 Ark. at 310, 783 S.W.2d at 845. We will not disturb this discretion upon review in the absence of a showing of abuse. Warren v. State, 314 Ark. 192, 862 S.W.2d 222 (1993); Bennett v. State, 308 Ark. 393, 825 S.W.2d 560 (1992).

Appellant also argues that the original medical examiner's report was altered. The name of the victim on the original document was covered with "white out" and the name "Demetria" was changed to "Laura." The victim's full name was Demetria June Larimore. It also appears that there was once a time of death entered on the report, but someone wrote "time unknown" over white-out. These were factors to be considered by the jury in determining the credibility of Dr. Malak and his reports. Credibility is for a jury, not an appellate court, to determine. Moore v. State, 315 Ark. 131, 864 S.W.2d 863 (1993).

In his next point of appeal appellant argues that the trial court erred in permitting a witness to give his opinion about the innocence of a third person who at one time was a suspect in the murder. The ruling was in error, but appellant suffered no prejudice as a result of the ruling, and we will not reverse for harmless non-Constitutional error. The facts necessary to understand the issue are as follows. In attempting to create a reasonable doubt appellant sought to show that the police investigation of this case was flawed and that another person had been seen near the Larimore home the morning of the murder. In order to discredit the police on cross-examination, appellant asked a number of questions about mistakes in the gathering and preservation of the evidence. After persistent questioning about investigative errors, appellant asked former Blytheville Police Chief Larry Christie about reports that there was a stranger in the neighborhood the morning of the murder. Chief Christie admitted that there were reports that a young man, later identified as Mark Lockhart, had been seen in the carport of the Larimore home of the morning of January 11, 1990. He testified that neighbors had been shown photographs, but they could not identify the person they had seen, and that a hair sample had been taken from Mark Lockhart. Apparently hoping to have planted the idea that Lockhart might have committed the murder, appellant stopped cross-examination.

On redirect, Chief Christie testified that some ten months after the homicide he found a misplaced envelope of floor sweepings from the Larimore home and directed that hair samples be taken from various police officers who had been in the home. He also directed that a hair sample be taken from Lockhart. He testified that he was aware of a report from the Arkansas...