Leaks v. State

• Decision Date: 02 December 1999
• Docket Number: 99-624
• Citation: 5 S.W.3d 448
• Parties: Bruce Edward LEAKS v. STATE of Arkansas CR 99-624 ___ S.W.3d ___ Opinion delivered
• Court: Arkansas Supreme Court

Bruce Edward LEAKS v STATE of Arkansas

CR 99-624 ___ S.W.3d ___

Opinion delivered December 2, 1999

Supreme Court of Arkansas

Appeal from Miller Circuit Court; Joe Griffen, Judge; reversed and remanded.

1. Appeal & error -- petition for review -- how considered. -- Upon a petition for review, the supreme court considers the case as though it were originally filed in the supreme court.

2. Evidence -- challenge to ruling excluding evidence -- argument not preserved for review. -- To challenge a ruling excluding evidence, an appellant must proffer the excluded evidence so that the supreme court can review the decision, unless the substance of the evidence is apparent from the context; here, appellant made no proffer of what the excluded testimony would have been, and absent a proffer of the excluded evidence, the court had no way of knowing whether appellant was prejudiced by the challenged ruling; the argument was not preserved for review.

3. Appeal & error -- limiting instruction given -- defendant must ask for further relief to preserve issue. -- There is no abuse of discretion by the trial court when a defendant fails to request any further relief after the trial court has given a limiting instruction to the jury; where the trial court has afforded some relief, it is incumbent on the defendant to ask for further relief in order to preserve the issue.

4. Appeal & error -- sustaining or overruling objection to closing argument -- distinguished. -- When an objection to a statement during closing argument is sustained, an appellant has been given all the relief requested; consequently, there is no basis to raise the issue on appeal unless the appellant requests an admonition to the jury or a mistrial; however, when an objection to the prosecutor's closing argument is overruled by the trial court, an appellant has been given none of the relief requested; to require a request for further relief at that point in order to preserve the issue for review would serve no purpose; once the trial court rejects a claim of improper argument, there is no reason for it to consider a request for further relief.

5. Appeal & error -- closing argument -- steps required for preservation of error. -- The steps required for preservation of error when a trial court sustains an objection to closing argument should not govern the preservation of error when a trial court overrules a similar objection; moreover, the absence of a request for further relief has not precluded this court from addressing the merits of similar arguments in other cases where an objection to closing argument has been overruled by the trial court.

6. Appeal & error -- objection during closing overruled -- matter preserved for review. -- An objection to remarks made during closing argument is sufficient to preserve the argument for review when the objection is clearly overruled by the trial court; the closing argument issue presented here was preserved for review.

7. Trial -- closing arguments -- trial court given broad discretion. -- The trial court is given broad discretion to control counsel in closing arguments, and the supreme court does not interfere with that discretion absent a manifest abuse of discretion; closing remarks that require reversal are rare and require an appeal to the jurors' passions; the trial court is in the best position to evaluate the potential for prejudice based on the prosecutor's remarks.

8. Trial -- closing arguments -- what they may consist of. -- Closing arguments must be confined to questions in issue, the evidence introduced during trial, and all reasonable inferences and deductions that can be drawn therefrom; it isthe trial court's duty to maintain control of the trial and to prohibit counsel from making improper arguments.

9. Trial -- closing argument -- prosecutor should not refer to offense not supported by record -- . -- A prosecutor should not make reference in closing to an offense not supported by the record; the prosecutor acts in a quasi-judicial capacity and it is the prosecutor's duty to use all fair and lawful means to secure the conviction of the guilty in a fair and impartial trial; a verdict should never be obtained by arguments based on anything except the evidence in the case and the conclusions legitimately deducible from the law applicable to the same; to convict and punish a person through the influence of prejudice and caprice is as pernicious in its consequences as the escape of a guilty man.

10. Trial -- closing argument -- trial court abused its discretion in failing to sustain appellant's objection to prosecutor's improper remarks. -- Where the exact offense for which appellant was being tried was first-degree murder, the prosecutor's reference in his closing argument to capital murder was improper because it was outside the charges and evidence in the case; the only law applicable to the evidencewas that which related to the charge of first-degree murder and to the lesser-included offense of second-degree murder; the prosecutor's remarks were highly improper and the trial court clearly abused its discretion in failing to sustain appellant's objection.

11. Trial -- failure to sustain proper objection to argument of matters outside record is serious error -- case will always be reversed unless error otherwise removed. -- A trial court's failure to sustain a proper objection to argument of matters outside the record is serious error and gives the appearance that the improper argument has not only the sanction but the endorsement of the court; the supreme court will always reverse a case where counsel goes beyond the record to state matters that are prejudicial to the opposing party unless the trial court, by its ruling, has removed the prejudice.

12. Trial -- prosecutor's remarks improper -- prejudicial effects not removed by trial court's instructions. -- Where the jury was instructed by the trial court on the elements of first-degree murder and second-degree murder, but they were also advised by the prosecutor, with the tacit approval of the trial court, that the evidence could have supported a charge of capital murder with a maximum penalty of death, the prejudicial effect of the prosecutor's remarks were not removed by the trial court's instruction that counsel's arguments were not evidence; that same jury instruction informed the jury that arguments by counsel are made only to help them understand the evidence and applicable law.

13. Trial -- deliberation skewed in favor of first-degree murder due to prosecutor's remarks -- case reversed & remanded. -- Based on the record, the supreme court could not say that the prosecutor's improper suggestion of a third and more serious charge, capital murder, did not result in jury deliberations that included not only the charged offense of first-degree murder and the lesser-included offense of second-degree murder, but also a third uncharged offense of capital murder, thereby causing the deliberations to be skewed in favor of first-degree murder; therefore, the trial court's error in failing to sustain appellant's objection to the prosecutor's highly improper remarks was not harmless; the judgment of the trial court was reversed and the case remanded for a new trial.

Jim Pedigo, Public Defender, for appellant.

Winston Bryant, Att'y Gen., by: Sandy Moll, Asst. Att'y Gen., for appellee.

Annabelle Clinton Imber, Justice.

The appellant, Bruce Edward Leaks, was convicted in a jury trial of first-degree murder and was sentenced to forty years in the Arkansas Department of Correction. On appeal to the Arkansas Court of Appeals, Mr. Leaks raised two assignments of error. First, he argued that the trial court abused its discretion in limiting his cross-examination of a State's witness. Second, he argued that the trial court erred in allowing the prosecutor to argue to the jury that he could have been charged with capital murder. The court of appeals, by a tie vote, affirmed en banc. Leaks v. State, 66 Ark. App. 254, 990 S.W.2d 564 (1999). We granted Mr. Leaks's petition for review because of the tie vote. See Ark. Sup. Ct. R. 2-4(c)(i). It is well settled that upon a petition for review, we consider the case as though it were originally filed in this court. Frette v. City of Springdale, 331 Ark. 103, 959 S.W.2d 734 (1998); Travis v. State, 331 Ark. 7, 959 S.W.2d 32 (1998).

On the night of January 7, 1997, William Earl Littlejohn wasshot and killed at the home of Mr. Leaks's brother, where Mr. Littlejohn had been living for about one week prior to the shooting. Before that, he and Mr. Leaks had lived together at Mr. Leaks's residence for about six months. On the evening of the shooting, Mr. Leaks went over to his brother's house to confront Mr. Littlejohn about allowing certain women to do their laundry at his brother's home, and to demand payment of money for rent and a telephone bill that Mr. Littlejohn allegedly owed him. Mr. Leaks testified that he took a gun along to confront the victim because he was fearful of Mr Littlejohn. According to Mr. Leaks, the victim had previously cut him with a razor blade. Mr. Leaks also admitted that he and several other people had been drinking together earlier that day. Mr. Leaks testified that when he confronted Mr. Littlejohn, the victim grabbed his hand, slapped him in the face, and then came toward him and appeared to be trying to get something out of his pocket. Mr. Leaks became fearful, reached in his own pocket, pulled out the .38 caliber handgun, and then shot Mr. Littlejohn in the chest. Mr. Leaks immediately left the house after the shooting.

Mr. Leaks's nephew, who was in the back bedroom, testified that the victim came into his bedroom and told him that Mr. Leaks had shot him. Mr. Littlejohn then collapsed on the bed and died. Although Mr. Leaks initially denied any knowledge of the shootingto the police, he later admitted that he shot the victim after the police recovered the gun used in...